author: Mr. JUSTICE LORENZ

text:
    Lebert White, Plaintiff-Appellee and Cross-Appellant, v. White Owl Express, Inc. et al., Defendants-Appellants—(Strick Trailer Company, Defendant and Cross-Appellee, and Mid-American Truck Lines, Inc., Third-Party Defendant-Appellee.)
    (No. 55415;
    First District (5th Division)
    January 31, 1974.

      Modified opinion upon denial of rehearing May 24,1974.

    Howard & French, of Chicago (Richard G. French and Gary E. Dienstag, of counsel), for White Owl Express, Inc.
    Tom L. Yates, of Chicago (Carl E. Abrahamson, of counsel), for Strick Trailer Company.
    Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (Leonel I. Hatch, Jr. and D. Kendall Griffith, of counsel), for Mid-American Truck Lines, Inc.
   Mr. JUSTICE LORENZ

delivered the opinion of the court as modified upon denial of petition for rehearing:

The instant case arises out of the personal injuries plaintiff Lebert White received in shifting the bogey of a tandem trailer at the truck yards of third-party defendant Mid-American Truck Lines, Inc. The trailer was owned by defendant White Owl Express, Inc., driven by defendant Charles Baker, and manufactured by defendant Strick Trailer Co., Inc. Defendants White Owl and Baker brought Mid-American into the case on a third-party complaint. Defendant White Owl appeals from a directed verdict in favor of Mid-American, contending that Mid-American was required to indemnify White Owl and from a judgment on a verdict in favor of White, contending that White was contributorily negligent. Plaintiff White appeals from a directed verdict in favor of Strick, contending that he should have been permitted to proceed on his negligence and breach of warranty theories.

Plaintiff filed an amended four-count complaint for damages. Count I alleged that he was free of contributory negligence and that his injuries were a result of White Owl’s and Baker’s negligent maintenance and use of the trailer. Counts II, III and IV, against Strick, alleged negligence, breach of warranty, and strict liability respectively. Count II alleged that Strick had negligently designed and manufactured the trailer which caused the injury to plaintiff. Count III alleged that Strick breached its warranty that the trailer was fit for hauling freight safely. Count IV alleged that Strick sold a defective and therefore unreasonably dangerous trailer which was designed and manufactured in such a way either that the pins holding the bogey in place would stick or that a man would have to crawl underneath it. White Owl, Baker, and Strick answered denying liability.

Furthermore, White Owl and Baker filed a third party complaint against Mid-American for indemnification on the basis of a National Motor Equipment Interchange Agreement to which both White Owl and Mid-American were parties. Mid-American answered denying White Owl’s right to indemnification. Although the full Interchange Agreement was not exhibited, the pleadings quoted its relevant provisions.

At trial, Charles Baker testified that he was employed by White Owl as a truck driver, that he drove trailer 4011 to the Mid-American truck terminal in Chicago arriving around midnight on December 4, 1963, and that upon his arrival he went to Mid-American’s office bringing the bill of lading and the five copies of the Interchange Agreement report form. Mid-American’s dispatcher assigned plaintiff Lebert White, Mid-American’s chief “spotter,” to inspect the trailer. Before going to inspect the trailer White signed the Interchange Agreement report. White completed his inspection except for shifting the bogey. (Shifting the bogey has the effect of redistributing the weight bearing on the rear axle which is necessary because of varying weight restrictions among the states.) When White attempted to shift the bogey, he was unable to do so. Both Baker and White attempted for 5 or 10 minutes to work the crank handle which releases the pins holding the bogey in place. Finally, White asked Baker to “shake” the trailer. White got underneath the trailer in order to work the tripper bar and chank handle. In shaking a trailer, the driver of the truck locks the brakes on the bogey and moves the tractor backwards and forwards in order to jar the pins loose. After Baker began shaking the trailer, he felt the trailer box slide and heard White scream. He then held the trailer in place and called for help. When he left the tractor he observed that White’s right arm was caught underneath the trailer. After the incident and after White was freed and taken to the hospital, he picked up the interchange report which was laying on the ground and returned it to White Owl.

Baker testified that if the trailer had been working properly it would have required only one person to shift the bogey. That person would (1) set the air brakes on the bogey, (2) get underneath the trailer, (3) push the stripper bar up with his left hand (unlocking the mechanism), (4) turn the crank handle 90 degrees with his right hand (retracting the pins holding the bogey in place), (5) set the selector (fixing the desired location of the bogey), (6) get out from underneath the trailer, and (7) push or pull the trailer box with a power unit to the desired location.

However, trailer 4011 was not operating properly. A chain had to be installed to hold the crank handle open and the selector did not work properly. Baker testified that he could not remember when the pins on trailer 4011 ever retracted properly. The pins sometimes had to be hammered to get them to release. When this technique was used, the ends of the pins sometimes ballooned out and had to be removed with acetylene torches. Photographic exhibits were identified and admitted into evidence. Such photographs appeared to indicate that the tripper bar was disconnected.

Robert Lucas, a spotter for White Owl, testified that in 1959 or early 1960 White Owl purchased two or three new Strick trailers, including number 4011. Although he was familiar with the instructions plate on such trailers and had received instructions on the use of such trailers from White Owl’s mechanic, he did not remember seeing an instruction plate on trailer 4011. He testified that the Strick trailers did not operate properly almost from, the beginning. The pins would jump back into the locking holes prematurely. As a result, a chain was attached to the frame to hold the crank handle, which had to be pushed up higher than the instructions diagram indicated, in the up position so that the bogey could slide. Furthermore, the pins stuck in the locking holes. When this problem arose, various alternatives were available. The. tripper bar could be pounded up and the pins could be pounded out with sledge hammers. This method sometimes caused the ends of the pins to balloon out. Also, the truck could be “shaken” with a power unit to jar the pins loose. Lucas testified that anyone would know of the trailer’s unsafe condition by looking at it, but he never complained to anyone regarding its condition.

The evidentiary deposition of Noah Robinson, a spotter for Mid-American who helped free plaintiff after he had been injured, was read into the record. Robinson heard White scream and ran to help. White’s right arm was caught between the trailer and the bogey. By tying a rope to the crank handle and by sliding the bogey forward, they were able to free White. Robinson testified that White Owl’s trailers were in very, poor condition. They appeared never to have been serviced. The pins on such trailers do stick. The first step in loosening the pins is to shake the trailer. Had Robinson known how to use the chain, he testified he would have used it.

The testimony of plaintiff Lebert White, Mid-American’s chief spotter, agreed in most respects with Baker’s testimony regarding what occurred. He testified that the crank handle had some “play” in it and that the tripper bar worked all right. He never noticed the chain attached to the truck and probably would have rejected the trailer had. he seen it. He had never used a rope to shift bogeys and did not know if one was available. He was unable to explain what occurred. He did the same things with trailer 4011 that he had done with other trailers on numerous other occasions over his 15 year career as a spotter. Although he knew that being underneath a moving trailer was dangerous, he was unaware of any defect in the trailer. Had he been .able to successfully shift the bogey, he would have returned the Interchange Agreement report to Mid-American’s office.

Vince Bondi, the Chicago maintenance. mechanic for White Owl, testified that White Owl did most of its major repair work at its facilities in Pontiac,-Michigan, and that White Owl followed a regular schedule of preventative maintenance and relied on the reports of its drivers regarding other problems. Although the Strick trailers worked all right when they were new, the pins would occasionally stick. In such situations, the pins might be pounded with sledge hammers. As a general rule, he used a rope to pull the crank handle so that he would not have to get underneath the trailer. He stated that White Owl had installed the chain on trailer 4011.

Paul Tennenbaum, a mechanical engineer for Strick, testified that the locking holes were % inch larger than the. pins, that the crank handle was designed to move only 90°, and that each bogey position is checked before the trailer is delivered to customers. He was aware that the pins on Strick trailers could stick. No instructions were given to the users of such trailers regarding what to do if the pins stuck. Although he testified that the use of a sledge hammer is not the proper method of freeing pins which are stuck, pressure on the pins and the crank handle might be necessary to free the pins. Shaking the trailer might relieve the tension on the pins; but he saw no reason why anyone should remain under a trailer while it was being shifted.

Dr. M. F. Spotts, a retired professor of engineering, testified that although he was not experienced in the design of highway trailers, he did not believe Strick’s design was good. Much of his testimony was excluded from evidence upon defendants’ objections for lack of proper foundation and irrelevance and an offer of proof was made indicating that the design was defective because it required someone to go underneath the trailer to shift the bogey, because the track angles into which the locking holes were drilled were constructed of material which was too thin, because the track angles could become out of line, and because the locking holes could become out-of-round due to wear and tear. In his opinion, difficulties in shifting the bogey were inevitable.

Hayden Allen, formerly a White Owl mechanic employed at Pontiac, Michigan, testified that he was present when trailer 4011 first arrived. Within two months of the date of delivery, the pins began sticking. The president of White Owl was aware of this condition and had spoken to someone about it. Although the pictures do not adequately indicate the problem, the locking holes became elongated. A chain was installed to hold the crank handle open. Although the bogey slide was greased each time the trailer came to Pontiac, the grease had no effect. To his knowledge, the steam cleaner which was available at Pontiac was never used to clean underneath the trailers. When the pins of a Strick trailer stuck, he would do whatever was necessary to release the pins including pounding the pins or shaking the trailer. He did not use a rope in working on Stick trailers.

This testimony concluded plaintiffs case-in-chief. Defendants all moved for directed verdicts in their favor. The court entered directed verdicts in favor of Baker on Count I of the complaint and also in favor of Stick but only on Counts II and III of the complaint. It denied White Owl’s motion for directed verdict.

Stick then presented its case. John Rabik, Stick’s assembly line supervisor, testified that trailers like number 4011 had been made since 1945, that inspectors observe their manufacture throughout the process, and that the trailers are checked before they are delivered to customers to insure that they operate correctly. If the pins stick the only remedy is to take the trailer box off the bogey and correct the problem. No alternative method of releasing the pins is available.

Roland Zuko, a design engineer and general manager of Strick, testified that the Strick trailer was designed as a one-man operation. Pounding on the pins could break the internal workings of the tripper mechanism. If the pin were removed from the tripper bar, the crank handle could not be moved. Wear on the locking holes would not necessarily affect the release of the pins. Replacement pins are available. If the pins get stuck, it would be necessary to jack up the trailer box or to apply external force to the trailer in addition to using the crank handle.

Burgess H. Jennings, a professor and associate dean of engineering at Northwestern University and the author of six text books, testified that in his opinion the location of the crank handle was proper and the track angles into which the locking holes were drilled were satisfactory. He stated that there was little chance of the track angles getting out of line. He observed that every hole in the photographs given him were essentially round and that if they were not round, removal of the pins would be easier.

At the conclusion of this evidence, both White Owl and Mid-American moved for directed verdicts in their favor in the third-party action. Upon hearing arguments of counsel and examining the interchange agreement, the court directed a verdict in favor of Mid-American and refused to direct a verdict in favor of White Owl. The court also denied White Owl’s motion for directed verdict against White. The case was then submitted to the jury which returned a verdict in favor of White against White Owl and in favor of Strick against White.

OPINION

White Owl contends that the trial court erred in not directing a verdict in its favor against White in that White was guilty of contributory negligence as a matter of law. In support of its position White Owl relies on, among other cases, Fore v. Vermeer Manufacturing Co., 7 Ill.App.3d 346, 287 N.E.2d 526, Ferguson v. Lounsberry, 58 Ill.App.2d 456, 207 N.E.2d 309, Day v. Barber-Colman Co., 10 Ill.App.2d 494, 135 N.E.2d 231, and Richardson v. Iowa Central Ry. Co., 179 Ill.App. 108. Plaintiff cites numerous cases and relies upon the principle that contributory negligence is generally a matter for the jury’s consideration. Plaintiff points out that verdicts should be directed only when all the evidence, when viewed most favorably to the non-moving party, so overwhelmingly favors the movant that no contrary verdict could ever stand. Pedrick v. Peoria & Eastern R.R. Co., 37 Ill.2d 494, 229 N.E.2d 504.

While it is true that contributory negligence is generally a matter for the jury, it does not follow that it is always a question for the jury. Directed verdicts are not made inappropriate in all situations. We believe the instant case is one where a directed verdict was proper. Here, the evidence clearly indicates that plaintiff was an expert in spotting trailers. He was Mid-Americans chief spotter and had considerable experience in the area of his specialty. Defendant points out that numerous alternatives were available to spotters in the performance of their duties. They could redistribute the load in the trailer as was commonly done with non-shifting trailers or they could reject, the trailer. Also, if the trailer was of the shifting variety and the pins' stuck as in the instant case, in addition to the above alternatives, spotters could use any of several methods to accomplish the shift of the trailer. They could hammer the pins. They could use the chain which was in plain view and installed for the purpose or they could use a rope when shaking the trailer. However, instead of adopting any of these safe methods, plaintiff, an expert in spotting, chose to get underneath the trailer while it was being shaken. Moreover, on the witness stand he admitted that he knew this was a dangerous practice. As a result of his being underneath the trailer, he was injured. In these circumstances, especially where questions exist regarding whether White Owl owes any duty to plaintiff and whether White Owl caused plaintiff’s injury, we must conclude that the trial court erred in not directing a verdict in defendant’s favor.

Since White Owl was not liable to White, we need- not. determine the merits of White Owl’s contention against Mid-American regarding indemnification under the Interchange Agreement.

Plaintiff White contends that the trial court erred in directing a verdict on Counts II and III of his amended complaint. Those counts, against Strick, alleged negligence and breach of warranty. The court permitted White’s Count IV alleging strict liability against Strick to go to the jury and the jury found against plaintiff. Negligence, breach of warranty, and strict liability are alternative theories of relief. In the instant case, the trial court did not strike any of plaintiff’s counts. It permitted plaintiff to present his evidence. However, upon hearing that evidence, the court determined that plaintiffs evidence was insufficient on the questions of breach of warranty and negligence to go to the jury. Plaintiffs evidence on the warranty count showed no warranties running to plaintiff, did not indicate the presence of any express warranties, and did not show that the trailer was unfit for hauling freight- safely. Plaintiffs evidence of negligent manufacture and design depended upon the testimony of Dr. Spotts. Most of Sports’ testimony was excluded because, plaintiffs prior witnesses had not established that the defects to which he was referring actually existed. Thus, the trial court excluded parts of his testimony for lack of a proper foundation. We believe the court’s ruling was proper.

Therefore, the order of the trial court denying White Owl’s motions for directed verdict against White is reversed and the cause is remanded to enter judgment in favor of White Owl on such verdict. The order of the trial court directing a verdict in favor of Stick against White on Counts II and III and the judgment in favor of Stick on the jury’s verdict on Count IV is affirmed. The judgment in favor of Mid-American in the indemnity action of White Owl is vacated.

Affirmed in part, reversed and remanded in part, judgment vacated in part.

DRUCKER and ENGLISH, JJ., concur.

         Mid-American also filed a counterclaim against Baker but it is not relevant to this appeal.


source: Caselaw Access Project

author: Mr. PRESIDING JUSTICE ADESKO

license: Public Domain

text:
    A. P. Green Services Division of Bigelow-Leptak Corporation, Plaintiff-Appellant, v. Fair Employment Practices Commission et al. (John King et al., Defendants-Appellees.)
    (No. 58991;
    First District (4th Division)
    April 10, 1974.

      Rehearing denied June 11, 1974.

      Allan N. Lasky, Joel L. Widman, and Howard P. Alterman, all of Chicago (Fiffer & D’Angelo and Korshak, Rothman, Oppenheim & Finnegan, of counsel), for appellant.
    William J. Scott, Attorney General, of Chicago (Paul J. Bargiel, Assistant Attorney General, of counsel), for appellees.
   Mr. PRESIDING JUSTICE ADESKO

delivered the opinion of the court:

The appeal in this case arises from the Circuit Court of Cook County’s affirmance of a decision of the Illinois Fair Employment Practices Commission. The defendants-appellees, Waters and King, who are black bricklayers, filed charges against the plaintiff alleging that it had committed an unfair employment practice by refusing to hire them because of their race. The complainants alleged that after they were denied employment white bricklayers were hired by the plaintiff. On May 17, 1972, a hearing was held before the Fair Employment Practices Commission (hereinafter F.E.P.C.) hearing examiner, Garland W. Watt, and in a recommended order he found in favor of Waters and King. The hearing examiner found that A. P. Green gave preferential hiring treatment to white bricklayers in violation of the Fair Employment Practices Act. (Ill. Rev. Stat. 1971, ch. 48, par. 853(a).) The hearing examiner also awarded Waters and King compensatory damages.

A. P. Green filed a petition for review and reversal of recommended order and decision or for an opportunity to present additional evidence and the matter was argued before the full F.E.P.C. On October 25, 1972, the Commission issued its order which affirmed the decision of the hearing examiner. A complaint for administrative review was filed by A. P. Green on November 21, 1972, and on February 5, 1973, after oral argument, the trial court sustained the order and decision of the F.E.P.C. on a finding that there was substantial evidence to support it.

The plaintiff appealed and raises three issues for review. The plaintiff contends the trial court erred in finding that there was substantial evidence to uphold the order and decision of the F.E.P.C.; that the order of the F.E.P.C. is not based on a preponderance of the evidence; and that the Commission lacks the authority to make an award of compensatory damages. We do not agree with these contentions.

A. P. Green is a mason contractor and performs the construction, maintenance and repair of industrial heat enclosure systems. The plaintiff hires bricklayers for each of its jobs and all of the hiring is done at its office in Lansing, Illinois. There is no standard form for each applicant to fill out but rather an applicant leaves his name, phone number and address with someone at the Lansing office. A hiring list of applicants is maintained but no record is kept of the date of each application nor is the list left in chronological order. It was the plaintiff’s policy to do all hiring from this list but bricklayers were hired whose names did not appear on it. There was no hiring done at the job site.

The plaintiff commenced work on a project referred to as the Clark Oil job on April 14, 1971. On April 19, 1971, Waters and Donald Samuels went to the plaintiff’s office in Lansing to apply for work on the Clark Oil job. Waters testified before the hearing examiner that he talked to a Mr. Peterson at the plaintiffs office and Peterson said the Clark Oil job had not started.- Waters testified that he told Peterson that he wanted to leave his name and phone number. Waters did so but did not fill out any type of application form. On April 22, 1971, Waters and King went to the Clark Oil job site and talked to the foreman, Mr. Pfisterer, about obtaining employment. The defendants were told to go to the Lansing office to apply. Waters and King returned to the Lansing office and spoke with Peterson and their names were taken by a girl in the office. Waters stated he was never called by the plaintiff for employment at the Clark Oil job.

Mr. King’s testimony was substantially similar to and corroborated that of Waters. King also stated that he was never called by the plaintiff for employment at the Clark Oil job. It should be noted that both Waters and King were qualified bricklayers and had experience in all types of brick work.

The next witness called on behalf of Waters and King was Stanford Smith who was the director of field activities for the F.E.P.C. and who investigated this case. Smith investigated the complaints of Waters and King in the second week of July, 1971. He had a meeting with the legal counsel for the plaintiff and with Pfisterer, Peterson and Corrado. Smith stated he examined the hiring list of the plaintiff and observed the names of Waters and King on it. According to Smith, Peterson stated at that time the plaintiff had 66 bricklayers working for it and one was black. Smith testified that after the defendants applied, seven bricklayers were hired and they were white. He did state one black bricklayer was hired for the Clark Oil job and his name was Pearson. This information was obtained through a conversation with Mr. Corrado, the general field superintendent for the plaintiff. The attorney for Waters and King asked Smith: “During the course of your conversation with Mr. Corrado, did you learn of any bricklayers or instances involving the hiring of bricklayers where those bricklayers had not applied prior to Waters and King.” Smith replied: “No not really.” The explanation Smith received as to why there was only one black on the plaintiffs hiring list was that its office was too far out and located where blacks did not come to secure employment.

The next witness called on behalf of Waters and King was Willie G. Pearson, a black bricklayer, who stated he was hired for the Clark Oil job on April 13, 1971, and that he began working at the job site on April 26. Mr. Pearson testified that Corrado called him and asked him if he was busy and if he wanted to work at Clark Oil. Pearson told Corrado he did want to go to work at Clark Oil. The hearing examiner asked Pearson if any blacks applied for jobs after he began working at Clark Oil. Pearson replied that three blacks came to the job site. He identified them as Waters, King and John Gibson. The hearing examiner asked: “Do you recall whether or not any persons were employed on the Clark Oil site as bricklayers after these three Blacks applied?” Mr. Pearson replied: “Yes. To my knowledge there were four.” It was also established that none of them were black.

James Corrado testified for A. P. Green and stated that he was the general field superintendent and that part of his duties was to secure manpower for the various jobs the company performed. He stated that applicants either appear in person or telephone and that for the Clark Oil job he secured approximately seven bricklayers plus a bricklayer superintendent. Corrado testified that after Waters and King applied, a foreman and two bricklayers were hired but that these men had been promised employment prior to the application of Waters and King. Corrado stated that between 1 week and 4 weeks before the Clark Oil job commenced he made promises of employment to each of these men. As to one of the bricklayers, Corrado stated he mentioned to him that he was doing the Clark Oil job and gave him an approximate starting date. The testimony of Corrado was not corroborated by any of the white bricklayers. In response to a question of the hearing examiner, Corrado testified that the hiring procedure of A. P. Green was “a little bit on the unorganized side.” He also stated a great deal was left to his discretion.

Corrado testified that 70 percent of the jobs A. P. Green did, required only one bricklayer and that another 20 to 25 percent only required two bricklayers. Therefore, 90 percent of the jobs A. P. Green did required one or two bricklayers but Pearson, the only black regularly employed by A. P. Green, was sent to only one of these jobs. Corrado stated that he was not directed either orally or in writing to give preference to white bricklayers over black bricklayers. He denied that Waters and King were not employed because they were black.

The Illinois Fair Employment Practices Act requires that an unfair employment practice be proved by a preponderance of the evidence. (Ill. Rev. Stat. 1971, ch. 48, par. 858(f).) The Supreme Court of Illinois in Fenyes v. State Employees’ Retirement System, 17 Ill.2d 106, 111-112, 160 N.E.2d 810, 813 (1959), delineated the function of a reviewing court in a case arising under the Administrative Review Act. The court stated:

“Under the Administrative Review Act, the findings of the administrative agency on questions of fact are prima facie correct. They may be reviewed to determine if they are supported by the evidence, but they can be set aside only if against the manifest weight of the evidence. Kellogg Switchboard and Supply Corp. v. Department of Revenue, 14 Ill.2d 434; Logan v. Civil Service Com. 3 Ill.2d 81; Drezner v. Civil Service Com. 398 Ill. 219.
The judicial function of the reviewing court in such case is comparable to that presented where such court is called upon to determine an issue at law as to whether there is competent evidence to support the judgment of the lower court, and when there is evidence to support the findings of the administrative agency, its decision will be affirmed. Kellogg Switchboard and Supply Corp. v. Department of Revenue, 14 Ill.2d 434, 439.”

After a perusal of the record in the case at bar, we conclude that the findings of the F.E.P.C. are not contrary to the manifest weight of the evidence.

The plaintiff contends that an unfair employment practice was not established by a preponderance of the evidence and that the trial court erred in finding that the decision and order of the F.E.P.C. was supported by substantial evidence. The issue as framed by the plaintiff is whether the bricklayers who were put to work after Waters and King applied were hired prior to the time of their applications. We agree that this was the salient factual issue that had to be determined but we do not agree with the plaintiff that the unrebutted evidence clearly shows' that all bricklayers on the Clark Oil job, except one who was hired for one day, were hired from 1 to 4 weeks prior to the commencement of the job.

The allocation of the burden of proof in an action challenging employment discrimination was well established in McDonnell Douglas Corp v. Green, 411 U.S. 792, 802, 36 L.Ed.2d 668, 677, 93 S.Ct. 1817, 1824 (1973). The Supreme Court in referring to the prima facie case that must be initially put forward by the complainant stated:

“This may be done by showing (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications.” (Footnote omitted.)

Once this is done the burden shifts to the employer and it is incumbent upon him to rebut the prima facie case by some legitimate, nondiscriminatory reason for the complainant’s rejection. If the employer discharges his burden of proof and meets the prima facie case of discrimination, the burden of proof then shifts back to the complainant and he must establish that the articulated reason for rejection is pretext. (McDonnell Douglas Corp., supra.) Applying these rules to the case at bar, it is clear from the record that Waters and King established a prima facie case and that it was not rebutted by A. P. Green.

Waters and King belonged to a racial minority and they applied and were qualified for the Clark Oil job for which A. P. Green was seeking applicants. They were rejected despite their qualifications and the jobs were subsequently filled by white bricklayers. A. P. Green attempted to rebut this prima facie case with the testimony of Mr. Corrado that the men subsequently put to work were promised jobs and thus hired prior to the time Waters and King made their applications. The hearing examiner and Commission rejected this explanation and we cannot conclude that their findings were against the manifest weight of the evidence.

Corrado’s testimony does not indicate that a binding agreement was entered into with the white bricklayers who were put to work after Waters and King applied nor were any reciprocal obligations undertaken. The plaintiff contends that the testimony of Willie Pearson corroborates that of Corrado. However, Pearson’s statements at the hearing indicate that in regards to him a firm commitment was undertaken by both parties as opposed to the vague promises Corrado made to the white bricklayers. The plaintiff points to the testimony of" Stanford Smith where he stated that he knew of no instances involving the hiring of bricklayers who had not applied prior to Waters and King as further evidence that the white bricklayers were merely put to work after Waters and King applied. However, Smith testified that he did not inquire about the date of the applications of each of the bricklayers. As pointed out in the defendants’ brief, the testimony of Mr. Smith cited by the plaintiff was in response to a question whether from his conversation with Corrado, he learned about white bricklayers who had not applied before Waters and King. Smith’s negative response does not aid the plaintiff in proving that the white bricklayers had been hired prior to the time Waters and King applied.

Corrado did testify that he was not directed to prefer white bricklayers over black bricklayers. However, such statements carry little weight in rebutting charges of discrimination. Racial discrimination in employment is not usually accomplished overtly but rather covertly and by tacit agreements and understandings. Corrado did admit that the employment structure of A. P. Green was unorganized and such a system can be an easy means of discrimination. After carefully reviewing the record in this case, we agree that an unfair employment practice was proved by a preponderance of the evidence. A. P.. Green hired white bricklayers after Waters and King applied and there was no legitimate, non-discriminatory explanation given. We agree with the hearing examiner’s conclusion that this constitutes the very essence of discrimination. The trial court did not err in finding that the decision and order of the F.E.P.C. was supported by substantial evidence.

• 5 The decision and order of the F.E.P.C. granted defendants an award of compensatory damages and the plaintiff maintains that the Commission lacks the authority to make such an award. In support of this contention the plaintiff cited Motorola, Inc. v. Illinois Fair Employment Practices Com., 34 Ill.2d 266, 215 N.E.2d 286 (1966), and the Attorney General’s Opinion No. S-249, December 29, 1970. Plaintiff stated in its brief, “The issue is whether an award of compensatory damages falls within the scope of the ‘further affirmative action’ that the Commission may take to ‘eliminate the effect of the practice originally complained of.’ (Ill. Rev. Stat., ch. 48, ¶ 858[f].)” The portion of the Fair Employment Practices Act cited by the plaintiff, however, contains other important language. The pertinent portion of the statute states:

“The commissioner or hearing examiner then shall state his recommendations in writing and, if he finds against the respondent, shall issue and cause to be served on such respondent and the complainant an order requiring such respondent to cease and desist from the unfair employment practice complained of, and to take such further affirmative or other actions with respect to the complainant as will eliminate the effect of the practice originally complained of.” (Emphasis added.) (Ill. Rev. Stat. 1971, ch. 48, par. 858(f).)

It cannot be denied that one of the salient effects of an unfair employment practice on a complainant is the loss of remuneration. This court is, therefore, of the opinion that the F.E.P.C. has the power to award compensatory damages to a successful complainant.

The Motorola case is not authority for the plaintiff’s contention. In that case compensatory damages were awarded to the complainant but the Circuit Court held that the F.E.P.C. did not have the power to make an award of monetary damages. The Commission did not appeal this ruling and therefore, this issue was not before our supreme court in Motorola. This issue as far as we can ascertain is one of first impression.

The Attorney General’s opinion cited by the plaintiff is also not persuasive, This opinion dealt with the question of whether the F.E.P.C, had the power to order payment of attorneys’ fees when it determines that such payment will serve the purposes of the Fair Employment Practices Act. The Attorney General rendered a negative ruling based upon People ex rel. Henderson v. Redfern, 104 Ill.App.2d 132, 243 N.E.2d 252 (1968), and Ritter v. Ritter, 381 Ill. 549, 46 N.E.2d 41 (1943). The Attorney General was of the opinion that since these cases held that attorneys’ fees can only be awarded where a statute specifically authorizes their assessment and that since the Fair Employment Practices Act contains no such specific authorization the Commission lacked authority to order payment of attorneys’ fees. A distinction, however, can be made between attorneys’ fees and compensatory damages. Compensatory damages have always been an integral part of our common law and while not intended to allow a party to profit, their purpose is to make an injured party whole. (Bimba Manufacturing Co. v. Starz Cylinder Co., 119 Ill.App.2d 251, 256 N.E.2d 357 (1969).) However, as stated in Henderson, supra, at page 135: “There is no common law or equitable principle allowing attorneys’ fees either as costs or damages.”

The intent of the Fair Employment Practices Act is to insure equal employment opportunity and to rid a complainant of the effects of discrimination which includes the pecuniary loss suffered as a result of the discriminatory practice. The authority to award compensatory damages is within the F.E.P.C.’s power to take affirmative or other actions in respect to the complainant that will eliminate the effects, of the unfair employment practice. For the reasons herein stated, the judgment of the Circuit Court of Cook County is affirmed.

Judgment affirmed.

BURMAN and JOHNSON, JJ., concur.

       This list was apparently not produced nor entered into evidence at the hearing. The record contains a hiring list but it does not have the names of Waters and King on it.

       The record is not clear as to what list Mr. Smith was referring.


author: Mr. JUSTICE DRUCKER

text:
    La Salle National Bank, as Trustee, Plaintiff-Appellee, v. The City of Chicago, Defendant-Appellant.
    (No. 59022;
    First District (5th Division)
    April 19, 1974.

      Rehearing denied May 22, 1974.

      Richard L. Curry, Corporation Counsel, of Chicago (William R. Quinlan and Daniel Pascale, Assistant Corporation Counsel, of counsel), for appellant.
    Levin & Berger, of Chicago (Burton Berger and Arnold B. Malk, of counsel), for appellee.
   Mr. JUSTICE DRUCKER

delivered the opinion of the court:

Plaintiff, as trustee, brought this action against defendant to quiet title to certain streets and alleys which had heretofore been platted as a recorded subdivision. The trial court, upon the pleadings, a stipulation of facts and the documents admitted into evidence, entered judgment in favor of plaintiff, awarding it title to the streets and alleys and removing and cancelling the dedicated plat, with the exception of 121st Street, 122d Street and Torrence Avenue.

On appeal defendant contends that: (1) the dedication had been impliedly accepted; and (2) any claim of title to, or interest in, the dedicated property in question, asserted by plaintiff against the defendant, is now barred by the Illinois Marketable Title Act (Ill. Rev. Stat. 1971, ch. 83, pars. 12.1 — 12.4).

Plaintiff, on October 28, 1966, acquired title to and possession of the following piece of property:

“Ford Manor, a Subdivision of the South Half of the Southeast Quarter of the Southeast Quarter (except the railroad) of Section 24, Township 37 North, Range 14, East of the Third Principal Meridian commonly known as property from 121st Street to and including 122nd Street and from Torrence Avenue East to the New York Central Railroad.”

The streets and alleys in question had been dedicated to the city of Chicago by a plat of subdivision which was recorded on August 15, 1923. No ordinance nor any resolution of the Chicago City Council showing formal acceptance of this dedication was offered into evidence.

This property has not been taxed by defendant since August 15, 1923. Both 122d Street and Torrence Avenue are paved, the latter street having been paved by defendant. There are water lines on both of these streets, and both are used by the public. Defendant has included the plat of this subdivision in its official maps. This property is presently zoned for heavy industrial. It is admitted that defendant has not opened up nor improved the streets and alleys known on the plat as Hoxie, Calhoun, Bensley, and the north-south alleys from 121st Street to 122d Street between Torrence Avenue and the New York Central Railroad. Plaintiff has not contested the defendant’s acceptance of 121st Street, 122d Street and Torrence Avenue.

OPINION

Defendant argues that there was a valid acceptance by it of the plat of subdivision, and that it legally has title to the streets and alleys in question. Defendant refers this court to the facts that: (1) no taxes have been assessed on the property; (2) the plat of subdivision was included in its official maps; and (3) it is uncontested that defendant has accepted a principal street in the subdivision.

When an owner of land lays it out in lots and blocks with streets and alleys and has it platted, the municipality acquires no rights in the streets and alleys until it accepts them. (Zemple v. Butler, 17 Ill.2d 434, 161 N.E.2d 818.) Nor does the recording of the plat of subdivision transfer any rights to the municipality without an acceptance. (Nimpfer v. Village of Fox Lake, 334 Ill. 46, 165 N.E. 143.) Acceptance may be either express or implied. An express acceptance may be shown by some order, resolution or action of the public authorities made and entered of record; an implied acceptance may be deduced from acts of the public authorities recognizing the existence of the streets and treating them as public streets. The proof of acceptance must be unequivocal, clear and satisfactory. (Chicago, Milwaukee and St. Paul Ry. Co. v. Chicago, 264 Ill. 24, 105 N.E. 702; Pilgrim v. Chamberlain, 91 Ill.App.2d 233, 234 N.E.2d 75.) In the instant case defendant does not assert that any express acceptance was made but only that there was an implied acceptance.

It has been held, in the absence of a contrary intention being evinced by the municipality, that the acceptance of some of the platted streets or the most important streets, raises a presumption of acceptance of all of the streets platted. (Zemple v. Butler.) “Moreover, the acceptance cannot be confined to the particular portions where work is done, in the absence of circumstances from which it can be inferred there was an abandonment by the public.” (McCue v. Berge, 385 Ill. 292, 301-302, 52 N.E.2d 789.) It was stated in People ex rel. Lyddy v. City of Rock Island, 45 Ill.App.2d 76, 86, 194 N.E.2d 647, that:

“Immediate opening and user, by the public, of all the streets for their entire length, or immediate formal acceptance by some competent public authority is not necessary to give effect to a dedication of land to the public use of a street, by the making of a plat, — a municipality is permitted to wait its reasonable time for opening and improving its public streets, as its own resources and the public need may allow and require: [Citations], Whether the interests of the public require that a street shall be improved or that repairs thereon are necessary is committed to the judgment and discretion of the governing board of the City: [Citation].”

Whether there is an acceptance will depend upon the facts and circumstances peculiar to each case. (McCue v. Berge.) In this case defendant has included the plat of subdivision in its official maps. While this alone may be insufficient to prove acceptance, it is one factor showing acceptance. (Chicago, Milwaukee and St. Paul Ry. Co. v. Chicago.) Defendant has not taxed nor assessed this property since the original dedication was made. “While neither assessment nor failure to assess taxes, of itself, amounts to acceptance of the dedication by a municipality, in connection with other acts, acceptance may be indicated by failure to assess.” (26 C.J.S. Dedication, par. 40(7), p. 483; The H. A. Hillmer Co. v. Behr, 264 Ill. 568, 106 N.E. 481; W. N. Eisendrath & Co. v. Chicago, 192 Ill. 320, 61 N.E. 419.) These facts indicating acceptance must be considered in conjunction with defendant’s uncontested acceptance of 121st Street, 122d Street and Torrence Avenue, its improvement of Torrence Avenue by paving it and installing water lines, and the public use of both Torrence Avenue and 122d Street.

Apart from the unimproved condition of the streets and alleys in question, plaintiff has failed to prove any overt act from which this court could infer that defendant has not accepted the streets and alleys as platted and which would rebut the presumption of an implied acceptance of all the streets and alleys. In its argument plaintiff relies heavily on nonuse by the municipality, but in its brief, when describing the general area in which this property is located, it states:

“The property is located at the extreme southeast side of the City of Chicago, and is surrounded by a large area which is also vacant, unimproved, and without any streets and alleys. The only major street in the area, which is being used, is Torrence Avenue.”

If there is no necessity, due to the general unoccupied character of the area, to improve all of the streets and alleys in question, then we feel it was not incumbent on defendant to improve these streets and alleys merely to establish acceptance. We therefore find that defendant has impliedly accepted all file streets and alleys in question. In light of this conclusion we need not determine defendant’s other contention. The judgment is reversed.

Reversed.

SULLIVAN, P. J., and LORENZ, J., concur.


author: Mr. PRESIDING JUSTICE SULLIVAN

text:
    Roy E. Zimmer, Plaintiff-Appellee, v. Samuel A. Robbins, Individually, and as Ex’r of the Estate of Fred A. Zimmer, Deceased, et al., Defendants-Appellants—(St. Paul’s Evangelical and Reform Church, Defendant-Appellee.)
    (No. 59119;
    First District (5th Division)
    April 19, 1974.

      Rehearing denied June 20, 1974.

    Moses, Gibbons, Abramson & Fox, of Chicago, for appellants.
    Freeman, Freeman & Atkins, of Chicago, for appellees.
   Mr. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court:

This is an appeal by Samuel Robbins (defendant), individually, and as executor of the estate of Fred A. Zimmer, from a decree construing certain provisions of the will and codicil of the decedent.

The subject will was executed by the testator on July 20, 1967, to which two codicils were subsequently made, the first of which is not at issue here. The testator in the relevant dispositive articles of the will made the following bequests:

“ARTICLE FOUR
If my net taxable estate exceeds two hundred fifty thousand ($250,000.00) dollars, then I give and bequeath to my brother, ROY E. ZIMMER, an amount equal to ten percent (10%) of said net taxable estate. If my net taxable estate is less than two hundred fifty thousand ($250,000.00) dollars, and not less than one hundred thousand ($100,000.00) dollars, I give and bequeath to my said brother the sum of ten thousand ($10,000.00) dollars.
ARTICLE FIVE
If my net taxable estate is five hundred thousand ($500,000.00) dollars, I give and bequeath an amount equal to four per cent (4%) of said net taxable estate to ST. PAUL’S EVANGELICAL AND REFORM CHURCH located at Fullerton and Orchard Streets, Chicago, Illinois.
If my net taxable estate is less, than five hundred thousand ($500,000.00) dollars, but exceeds two hundred thousand ($200,-000.00) dollars, I give and bequeath to ST. PAUL’S EVANGELICAL AND REFORM CHURCH an amount equal to two per cent (2%) of said net estate.
If my net taxable estate is less than two hundred thousand ($200,000.00) dollars, and not less than one hundred thousand ($100,000.00) dollars, I give and bequeath to ST. PAUL’S EVANGELICAL AND REFORM CHURCH the sum of two thousand $2,000.00) dollars.
# # *
ARTICLE FOUR
If my net taxable estate exceeds four hundred thousand dollars ($400,000.00) then I give and bequeath to my brother, ROY E. ZIMMER, an amount equal to fifteen per cent (15%) of said net taxable estate. If my net taxable estate, is less than four hundred thousand dollars ($400,000.00) but not less than two hundred fifty thousand ($250,000.00) dollars, then I give and bequeath to my brother an amount equal to ten per cent (10%) of said net taxable estate. If my net taxable estate is less than two hundred fifty thousand dollars ($250,000.00) and not less than one hundred thousand dollars ($100,000.00), I give and bequeath to my said brother the sum of ten thousand dollars ($10,000.00).”

Plaintiff, testator’s brother and legatee under article four above, commenced the instant action by seeking a construction of the above provisions, asserting that defendant misconstrued the meaning of “net taxable estate” found in the aforementioned provisions. Plaintiff also joined St. Paul’s Evangelical and Reform Church, legatee under article five, as a nominal defendant.

Plaintiff interprets the term “net taxable estate” to mean the testator’s gross estate minus the costs of administration, debts and estate and inheritance taxes. Conversely, defendant determined that the testator, by using the words “net taxable estate”, intended to mean the taxable estate as computed for Federal Estate Tax purposes (that portion of the net estate subject to estate taxes). According to plaintiff’s reasoning, his bequest would have totaled 15% of $478,611.40, or $71,791.71. Defendant, on the other hand, reflected in his final account that plaintiff was entitled to $10,000 and the Church $4,207.59.

The court below sustained the plaintiffs position and entered a decree which in relevant part holds:

“It is clearly the intent of said Testator to define the term net taxable estate’ as ‘net estate’ is defined in ARTICLE VI of said Will, i.e., « * * my gross estate less all debts, expenses of administration, and estate, inheritance and succession taxes.
# # #
That said net taxable estate being in excess of $400,000, the distributive share of said estate due plaintiff ROY E. ZIMMER is 15% of $478,611.40, in accordance with ARTICLE IV, SECOND CODICIL, making his total bequest $71,791.71.
That said net taxable estate being in excess of $200,000, the distributive share of said estate due to Defendant ST. PAUL’S EVANGELICAL AND REFORM CHURCH is 2% of $478,611.40, in accordance with ARTICLE V of said Will, making said total bequest $9,572.23.”

OPINION

On appeal this court is asked to construe the phrase “net taxable estate” as used by the testator and ascertain whether the use of this phrase is explained by reference to the definition of “net estate” found in article six. Defendant contends that the two phrases cannot be synonymous inasmuch as “net estate”, as defined in article six, contemplates that taxes would be deducted in arriving at the net figure; whereas, “net taxable estate” clearly indicates an amount yet to be taxed. This contention is buttressed by the dispositive provisions of article three, which employ the phrase “net taxable estate” and state: “[I]n the event my net taxable estate remaining after the payment of all expenses, claims and costs of administration * (Emphasis added.) Here, the use of the phrase “net taxable estate” does not contemplate the payment of taxes, nor could it under a strict construction of the phrase. In addition, as defendant argues, the provision evidences the testator’s awareness that “net taxable estate” could only mean subject to taxation.

The above analysis does not resolve the differing postures taken by the parties here, but only broadens the scope of inquiry. It is conceivable that when the testator referred to “net taxable estate” (according to plaintiff, his gross estate minus claims, expenses and costs of administration and taxes), he may have considered that the residue of his estate, for distribution purposes, would include those amounts normally deducted on the Federal estate tax return for the marital deduction and the $60,000 exemption. Following this line of reasoning, however, one would question why the testator in article seven of his will specifically provided for the establishment of a marital deduction trust (Trust A) which, according to the terms of tire will, “shall not be reduced by any taxes” and “shall consist of the fractional- share of such residuary estate * * * required to obtain a full marital deduction of fifty per cent (50%) * * *." It would be difficult for this court to believe that the testator when using “net taxable estate” for distribution purposes meant to include that portion of the estate passing to his spouse, in light of the fact that he carefully sought to avoid that result by the use of a marital deduction trust.

We are of the opinion that the figure arrived at after deducting the expenses of administration, debts and claims from the gross estate is not tire “net taxable estate” but only the adjusted gross estate, as determined by Federal estate tax provisions, and the marital deduction and the exemption further reduce the adjusted figure which then leads to the “net taxable estate.” We believe that it is from the amount reáched by using this computation that the bequests to the plaintiff and the church should be determined. On this point, we agree with the reasoning of defendant: “[S]ince the amount of Trust A will be unaffected by a determination of the net taxable estate’ no matter how defined, the testator must have intended to determine the amount of the legacies in relation to the value of the assets available to fund Trust B.”

Because we believe that the phrase “net taxable estate” is to be given its ordinary meaning (Union National Bank & Trust Co. v. Mills, 132 Ill.App.2d 242, 243, 268 N.E.2d 703), we must determine the import of Article Six and the use of the nonrecurring words “net estate.” We cannot reconcile the inclusion of Article Six in the will when the phrase used therein appears nowhere else in the instrument and when the definition given “net estate” is, in light of the balance of the will, inconsistent. In view of the apparent desire of. testator to comply with and take advantage of the marital deduction provisions, and because the tenor of the will is directed towards bequests being made from the “net taxable estate”, we conclude that .Article Six should not provide a definition for the “net taxable estate” as found in the dispositive provisions: to hold otherwise would be to give no effect to the word “taxable” as used on numerous occasions throughout the will. As stated in Logan v. Harris Trust & Savings Bank, 8 Ill.App.2d 61, 69, 130 N.E.2d 211:

* And so, repugnant words, in whatever portion of the will they occur, which contravene the evident general purpose and intention of the testator as clearly expressed, may be rejected or transposed, or limited and controlled by other and prior provisions, and by the general ..purpose and intent thus clearly manifested. * *

Accordingly, we reverse the findings of the trial court and remand with directions to enter a decree not inconsistent with this opinion.

Judgment reversed and remanded with directions.

DRUCKER and LORENZ, JJ., concur;

       (of the original will — revoked by a second codicil)

       (of the second codicil)

       This “interpretation” was taken from Article Six of the will which provides:
      “For the purposes of this, my Last Will and Testament I direct that the words net estate’ shall mean and be defined as follows: my gross estate less all debts, expenses of administration and estate, inheritance and succession taxes.”
      Accordingly, the plaintiff’s computations resulted in a net estate of $478,611.40, upon which the plaintiff’s as well as the Church’s bequests could be made:
      Gross Estate $770,853.21
      Debts, Expenses $221,679.26
      Federal Estate Tax 50,924.71
      State Inheritance Tax 19,637.84 292,241.81
      Net Estate.......................$478,611.40

       Defendant’s interpretation resulted in a taxable estate of $210,379.38:
      Gross Estate $765,513.75
      Debts, Expenses $223,479.26
      Bequest to Surviving Spouse 270,423.73
      Charitable Bequests 4,150.00
      Exemption 60,000.00 558,052.99
      Net Taxable Estate................$207,460.76
      (An after-audit figure indicated the net taxable estate to be $210,379.38-)

       Int. Rev. Code § 2056
      “(a) Allowance of marital deduction — For purposes of the tax imposed by section 2001, the value of the taxable estate shall * * * be determined by deducting from the value of the gross estate an amount equal to the value of any interest in property which passes or has passed from the decedent to his surviving spouse * * *.
      * * *
      (c) The aggregate amount of the deductions allowed under this section shall not exceed 50 percent of the value of the adjusted gross estate * * V

       Trust B includes the residue of the testator’s estate after the reduction of the estate by the marital trust provisions of Trust A. Trust B would also receive the remaining amounts of Trust A not distributed by the power of appointment reserved to the testator’s wife. Finally, upon the death of the survivor of the testator’s wife and mother, Trust B would be divided into separate trusts for each living grandchild of the testator.

       Except as “net estate” appears in article V: there, "however, the use of the phrase refers back to “net taxable estate” as it appears earlier in the subject article.


text:
    The People ex rel. Illinois State Dental Society et al., Plaintiffs-Appellees, v. Frank Iole et al., Defendant-Appellant.
    (No. 59129;
    First District (5th Division)
    April 19, 1974.

      Rehearing denied May 22, 1974.

    Kenneth N. Flaxman, of Chicago, for appellant.
    Bernard E. Epton and Russell S. Barone, both of Epton and Druth, Ltd., of Chicago, for appellees.
   Mr. JUSTICE DRUCKER

delivered the opinion of the court:

This is an appeal from an action brought to enforce compliance with an injunctive decree barring defendant from engaging in acts constituting the unlawful practice of dentistry. After defendant was found guilty of violating the injunction, a new decree was entered prohibiting him from working as a dental technician without first obtaining leave of the court. In addition, a judgment for $1785 in costs was entered against defendant.

On appeal defendant contends . that (1) the decree conditionally restraining him from accepting employment as a dental technician is an overbroad injunction, (2) there is no express statutory provision authorizing the award of costs in a .case of this nature, and (3) the judgment for costs was not supported by the evidence.

On July 21, 1971, pursuant to Ill. Rev. Stat. 1969, ch. 91, par. 71a, a permanent injunction was entered against defendant restraining him from engaging in acts constituting the practice of dentistry. It is uncontroyerted that almost immediately thereafter defendant embarked upon a series of acts in direct violation of the injunction, and that these acts continued for a period of approximately 1 year.

On July 13, 1972, plaintiffs filed a petition to show cause why defendant should not be held in contempt of court. In support of their petition plaintiffs submitted the affidavits of witness-investigators detailing acts of defendant which violated the injunction. The petition and attached affidavits indicated that he violated the injunction on at least 30 occasions. Plaintiffs paid these investigators for their work. In addition, during the course of the investigation money was paid to defendant for dentures manufactured by him.

Following a number of continuances, all requested by defendant or caused by his absence, a hearing on the rule to show cause was set for December 5, 1972. The record indicates that defendant, though present in the courthouse, did not appear when court was convened. The court, noting the many continuances that had already been granted and not wishing “to subject [plaintiff’s] witnesses to another delay,” ordered the hearing to proceed. Testimony was adduced that defendant, while operating the “A-Accurate Dental Laboratory,” engaged in acts constituting a violation of the injunction. Defense counsel was given full opportunity to cross-examine these witnesses. At the conclusion of the testimony the court directed defense counsel to produce defendant in the courtroom when the proceedings were to reconvene that afternoon. Although defendant was again seen in the courthouse, defense counsel was unable to secure his presence. Counsel requested leave of the court to withdraw, which was granted.

An attachment for contempt was issued against defendant reciting all that had transpired; he was arrested and on February 13, 1973, having retained a new attorney, he appeared before the court. He testified that he was no longer in the dental laboratory business, had no intention of returning to that line of work and would never again use his dental laboratory equipment. The court stated that although "there is no doubt he [defendant] deserves to go to jail * * * I’d be depriving him of the means of making a living while he is incarcerated.” The court stated that it was considering the entry of a consent decree incorporating the representations made by defendant concerning his intentions never again to work as a dental technician and requested plaintiffs to draft a decree to that effect. In addition, on motion of plaintiffs, a judgment in the amount of $1785 in costs was entered against defendant. In explaining the terms of tire decree the court stated, “You can not work for a laboratory. You can not operate a laboratory without coming to this court for permission.” Defendant replied, “Thank you very much.”

Defendant appeals to this court contending that the decree entered below conditionally restraining him from working as a dental technician is an overbroad injunction. Plaintiffs respond that rather than an injunction, a consent decree was entered below and, consequently, it is not subject to appellate review. See James v. James, 14 Ill.2d 295, 152 N.E.2d 582; Massell v. Daley, 404 Ill. 479, 89 N.E.2d 361; Bergman v. Rhodes, 334 Ill. 137, 165 N.E. 598.

A consent decree is not a judicial determination of tire rights of the parties; it is, instead, a recital of an agreement between them. (Massell.) While as a general rule such a decree should indicate on its face that it was entered into by consent, a showing of this nature is not necessary since agreement to the decree “may be shown by other evidence which does not contradict but is consistent with it.” Rhodes at p. 142.

In the case at bar defendant at several points in the proceedings volunteered that he was no longer in the dental laboratory business and had no intention of returning to that line of work. He further stated that he had no further use for his laboratory equipment. The court, though noting that defendant “deserved” to go to jail, took cognizance of these representations and discussed the drafting of a consent decree into which they would be incorporated. We believe that the absence of any defense objection to the use of the term “consent decree” indicates agreement with the disposition of the case in this manner. Moreover, at the close of the proceedings on February 13, the court carefully explained to defendant that he would not be able to take employment as a dental technician without first obtaining its permission. Defendant, rather than protesting these conditions, thanked the court.

Of course, defendant, having been adjudged guilty of contempt of court, faced the possibility of incarceration. This fact, however, does not constitute so substantial a coercive influence as to invalidate the decree. Defendant, ably represented by counsel, suggested the terms ultimately incorporated into the decree and repeatedly pressed them on the court. There can be no doubt that his consent was voluntary. Cf. In re 4145 Broadway Hotel Co., 100 F.2d 7 (7th Cir.).

Defendant next contends that there was no express statutory authority for the award of costs and therefore the court below erred in entering judgment against him for plaintiffs’ witness fees and litigation expenses. (See, e.g., Daily v. Leigh, 2 Ill.2d 499, 119 N.E.2d 204; Trustees of Schools v. Schroeder, 8 Ill.App.3d 122, 289 N.E.2d 247.) We find, however, that the statute authorizing the enjoining of the unlawful practice of dentistry does, in fact, include a cost provision of this nature. (Ill. Rev. Stat. 1971, ch. 91, par. 71(a).) This statute provides, in pertinent part, that an action may be maintained:

“* * * in the name of the people of the State of Illinois to perpetually enjoin any person from so unlawfully practicing dentistry and from the doing, committing or continuing of such unlawful act. In all proceedings hereunder the court, in its discretion, may apportion the costs among the parties interested in the suit, including cost of filing complaint, service of process, witness fees and expenses, court reporter charges, reasonable attorney fees.”

An examination of the text of the statute clearly demonstrates that (1) its cost provisions apply to “all proceedings” brought under the act including those brought to enjoin the commission of continuing unlawful acts and (2) the allowance of witness fees and expenses contemplates a more inclusive definition of such costs than the per diem “fees of witnesses” established by Ill+. Rev. Stat. 1971, ch. 53, par. 65. Defendant’s continuing commission of unlawful acts necessitated the instant litigation. The record indicates that' plaintiffs’ paid witness-investigators incurred substantial expenses, including the payment of monies to defendant, in the course of their investigation. Therefore, it was clearly within the discretion, of the court to enter a judgment for costs for these “witness fees and expenses” against defendant.

Defendant finally argues that the cost judgment was not supported by the evidence.

The court may grant a judgment for costs in an amount based on its own experience where an evidentiary hearing on the matter has not been held if one has not been requested. (Cf. La Salle National Bank v. Brodsky, 51 Ill.App.2d 260, 201 N.E.2d 208.) This is a matter of discretion with the court, and that discretion will not be reviewed except for abuse. Fleming v. Dillon, 370 Ill. 325, 18 N.E.2d 910.

In the case at bar defendant engaged in a cotuse of conduct in violation of the original injunction for a period of approximately 1 year. Plaintiffs hired witness-investigators to look into this matter, and these witness-investigators paid monies to defendant during the course of their investigation. In addition defendant’s absences caused these witnesses to come into court on more than one occasion. Finally, plaintiffs incurred expenses in effecting the arrest of defendant due to his contumacious behavior. Knowing this, the court was clearly able to determine that the $1785 judgment for costs was reasonable. In view thereof and because defendant neither objected nor demanded further proof when the court directed that judgment in this amount be entered, we find no reason to disturb the order entered below.

The consent decree and the judgment for $1785 are therefore affirmed.

Affirmed.

SULLIVAN, P. J., and LORENZ, J., concur.

       The order entered below prohibits defendant from working as a dental technician:
      "* * * at any time in the future, except insofar as, on petition presented to this Court by the said defendant, the Court may, upon terms that it deems just and meet; grant said petition at such time as it is presented by said defendant.”


author: Mr. JUSTICE BURKE.

text:
    Philip R. Davis, Plaintiff-Appellee, v. Chicago & North Western Railway Company, Defendant—(William F. Ware, Defendant-Appellant.)
    (No. 58170;
    First District (1st Division)
    April 22, 1974.

      Rehearing denied May 27, 1974.

      William Ware, pro se.

    I. Harvey Levinson, of Chicago, for appellee.
   Opinion by

Mr. JUSTICE BURKE.


text:
    Margaret B. Murphy, Plaintiff-Appellee, v. Thomas F. Murphy, Defendant-Appellant.
    (No. 59133;
    First District (1st Division)
    April 22, 1974.
    Edwin L. Johnson and William M. Doty, Jr., both of Chicago, for appellant.
    No brief for appellee.
   Opinion by

Mr. JUSTICE BURKE.


author: Mr. JUSTICE JOHNSON

text:
    Lectro-Stik Company, Plaintiff-Appellant, v. Stepco Corporation, Defendant-Appellee.
    (No. 57171;
    First District (4th Division)
    April 24, 1974.

      Rehearing denied May 29, 1974.

    Schiller & Schiller, of Chicago (Levin & Novoselsky, of counsel), for appellant.
    Barry J. McCaughey, of Chicago, for appellee.
   Mr. JUSTICE JOHNSON

delivered the opinion of the court:

An action was brought by plaintiff in the law division of the circuit court of Cook County. Following a change in the ad damnum limit of the law division, the case was transferred to the municipal department, of the circuit' court. Upon a trial call in the municipal department, the defendant did not appear and an ex parte judgment was entered.

On November. 16, 1971, a petition to vacate the judgment was filed by defendant and plaintiff filed a special appearance questioning the jurisdiction of the court to hear the petition. The court entered and continued the matter. On December 14, 1971, the court granted defendant’s petition to vacate and set the matter, for trial. The case came up for trial on January 24, 1972, and was dismissed for want of prosecution.

The principal issue presented- for our review is whether the lower court had jurisdiction to vacate the judgment.

The facts that are pertinent to this appeal can be summarized as follows: Plaintiff filed a tort action in the law division of the circuit court of Cook County on August 26, 1966. Subsequently, defendant filed its appearance, jury demand, answer, counterclaim and amendment to answer, and plaintiff filed its answer to the counterclaim.

Due to a change in the limits of the ad damnum amount of the law division and the municipal department of the circuit court, the case was transferred to the municipal department on August 31, 1970, without notice to either party.

The matter came up on the trial call of the municipal department on July 1, 1971, and was continued to August 16, 1971. On August 16, 1971, the defendant not appearing, judgment for the amount prayed for in the complaint was entered by the court.

On November 16, 1971, this matter came before the court below on the verified petition of the defendant to vacate the ex parte judgment previously entered. Defendant’s petition to vacate the judgment alleged, in pertinent part, that the instant matter was transferred from the law division to the municipal department without notice to the defendant or its counsel and that the defendant in fact had no notice of the transfer of the case, the new trial date, or the judgment until served with an execution. The petition further alleged a defense to the action and prayed that the matter be set for trial.

Plaintiff entered a special appearance on November 16, 1971, contesting the jurisdiction of the court to vacate the judgment under section 72 of the Civil Practice Act (Ill. Rev. Stat. 1971, ch. 110, §72). Plaintiff alleged that notice was not properly served upon it in accordance with the rules of the Illinois Supreme Court. Ill. Rev. Stat. 1971, ch. 110A, §§ 105, 106.

On. November 16, 1971, the court continued until December 14, 1971, defendant’s petition to vacate as well as the hearing on plaintiff’s special appearance. Defendant sent a notice of motion together with its petition to vacate to Bernard Borisof, president and registered agent of the plaintiff, informing him of .the December 14, 1971, hearing on the petition to vacate. The petition contained a proof of service by the attorney reciting service by registered mail upon the person to whom it was directed.

On December 14, 1971, the defendant again presented its petition to vacate together with its notice to the agent of plaintiff. Neither the plaintiff nor its attorney appeared at this hearing. The court, after hearing the nature of the notice and the method of service upon plaintiff, granted defendant’s petition, vacated the judgment previously entered, and set the matter for trial.

On January 12, 1972, plaintiff filed a notice of appeal from the order of December 14, 1971, vacating the judgment previously entered. On January 24, 1972, the case came up for trial. Plaintiff did not appear, and its complaint was dismissed for want of prosecution.

On appeal, plaintiff contends that the trial court lacked jurisdiction to vacate the judgment previously entered because the defendant failed to comply with the notice requirements of section 72 and the related Illinois Supreme Court Rules. Plaintiff also appeals from the order dismissing its suit for want of prosecution.

It is well established that a trial court does not possess jurisdiction over either the parties or the subject matter so as to permit it to review and modify its own order or judgment after the expiration of 30 days from the rendition of judgment. (Stevens v. City of Chicago (1970), 119 Ill.App.2d 366, 371, 256 N.E.2d 56, 58; Patts v. Rogers (1962), 38 Ill.App.2d 306, 187 N.E.2d 285; Brockmeyer v. Duncan (1960), 18 Ill.2d 502, 505, 165 N.E.2d 294, 196.) Such jurisdiction may be revested in the lower court, however, through the presentation of a petition under section 72 of the Civil Practice Act. Stevens v. City of Chicago (1970), 119 Ill.App.2d 366, 371, 256 N.E.2d 56, 58; Martin v. Masini (1967), 90 Ill.App.2d 348, 355, 232 N.E.2d 770, 773.

Section 72, in pertinent part, provides:

“The petition must be filed in the same proceeding in which the order, judgment or decree was entered but is not a continuation thereof. * * * All parties to the petition shall be notified as provided by rule.” Ill. Rev. Stat. 1971, ch. 110, §72(2).

' The rule referred to in. the above section is Supreme Court Rule 106, which states:

“Notice of the filing of a petition under section 72 of the Civil Practice Act for relief from a final judgment after 30 days from the entry thereof shall be given by the same methods provided in Rule 105 for the giving of notice of additional refief to parties in default.” Ill. Rev. Stat. 1971, ch. 110A, § 106.

Rule 105 in turn provides for the sérvice of such notice by any of three alternative methods, including:

“(2) By prepaid registered mail addressed to the party, return receipt requested, delivery limited to addressed only. Service is not complete until the notice is received by the defendant, and the registry receipt is prima facie evidence thereof.” Ill. Rev. Stat. 1971, ch. 110A, § 105.

Appellant argues that the notice of motion sent by defendant prior to the December 14, 1971, hearing was improper under section 72 and Supreme Court Rules 105 and 106. It alleges that the defendant failed to comply with each and every requirement of the Rules and attacks the notice on the grounds that it does not identify the status of Bernard Borisof, the form of service does not appear, and the postal return receipt was not appended to and filed with the notice. In our opinion, these objections in effect are directed to the proof of service as evidenced by the return of service rather than to the notice itself or the means of service under the rules.

The basic requirement of section 72 and the related Supreme Court Rules is that the party in whose favor a judgment sought to be vacated is entered receive notice. In Threlfall v. Threlfall (1969), 119 Ill.App.2d 276, 281, 256 N.E.2d 162, 164, this court stated:

“The Joint Committee Comments to section 72 state that while the petition is not a continuation of the prior proceeding new process need not issue. Notice, which is all the statute specifically requires, is therefore all that is necessary.”

In the instant case, there can be no doubt that the plaintiff had actual notice of defendant’s petition to vacate and the hearing on December 14, 1971. Plaintiff’s attorney was present in court on November 16, 1971, when the motion to vacate was set for hearing on December 14, 1971. Defendant sent a notice of motion and its petition to vacate to plaintiff’s registered agent, informing him of the December 14, 1971, hearing. The trial court, after hearing the nature of the notice given plaintiff, granted defendant’s petition for relief under section 72. We agree with its ruling that plaintiff had sufficient notice to satisfy the requirements of that section.

Plaintiff elected to stand on his special appearance and did not attend the hearing on December 14, 1971, even though the very issue raised by plaintiff’s special appearance was also the subject of the court’s hearing on that date. Special appearances are governed by section 20 of the Civil Practice Act. (Ill. Rev. Stat. 1971, ch. 110, §20), which provides:

“(1) Prior to filing any other pleading or motion, a special appearance may be made either in person or by attorney for the purpose of objecting to the jurisdiction of the court over the person of the defendant. A special appearance may be made as to an entire proceeding or as to any cause of action involved therein. Every appearance, prior to judgment, not in compliance with the foregoing is a general appearance.
(2) If the reasons for objection are not apparent from the papers on file in the case, the special appearance shall be supported by affidavit setting forth the reasons. In ruling upon the objection, the court shall consider all matters apparent from the papers on file in the case, affidavits submitted by any party, and any evidence adduced upon disputed issues of fact. No determination of any issue of fact in connection with the objection is a determination of the merits of the case or any aspect thereof. A decision adverse to the objector does not preclude him from making any motion or defense which he might otherwise have made.”

In the instant case, it is clear that plaintiff was not surprised or prejudiced by the vacating of the judgment. Plaintiff had full opportunity to argue against defendant’s petition and to present its objections to the method of service. The policy underlying vacating of default judgments was set forth by the court in Widicus v. Southwestern Electric Cooperative (1960), 26 Ill.App.2d 102, 108, 167 N.E.2d 799, 803:

“The question of whether or not a court should set aside a default should be so resolved as to do substantial justice between the parties and with the idea in mind of carrying out, insofar as it is possible, the determination of matters upon their merits. In resolving this problem, a court may well consider whether or not a defendant has a meritorious defense, and whether or not defendant’s delay in responding to the court’s command actually jeopardizes plaintiff’s basic position. But this should not be the only, nor necessarily, the determining factors. It seems to us that the overriding reason should be whether or not justice is being done. Justice will not be done if hurried defaults are allowed any more than if continuing delays are permitted. But justice might, at times, require a default or a delay. What is just and proper must be determined by the facts of each case, not by a hard and fast rule applicable to all situations regardless of the outcome.
The entering of a default is one of the most drastic actions a court may take to punish for disobedience to its commands. The court has other powers which are ample in most instances. In our judgment, a default should only be condoned when, as a last resort, it is necessary to give the plaintiff his just demand. It should be set aside when it will not cause a hardship upon the plaintiff to go to trial on the merits.”

In view of the foregoing, we hold that the trial court was correct in finding it had jurisdiction and in vacating the judgment previously entered.

However, we do not agree that the plaintiff’s cause of action should be dismissed for want of prosecution, inasmuch as plaintiff had filed a notice of appeal when that order was entered. Accordingly, the trial courts order vacating the judgment is affirmed and the order dismissing the plaintiffs cause of action for want of prosecution is reversed.

Affirmed in part, reversed in part.

DIERINGER and BURMAN, JJ., concur.


author: Mr. JUSTICE BURMAN

text:
    Harold Greenburg et al., Plaintiffs-Appellants, v. Sherwood Wolf, a/k/a Bud Wolf, Defendant-Appellee.
    (No. 57894;
    First District (4th Division)
    April 24, 1974.
    Henry A. Waller, of Bernstein & Waller, of Chicago, for appellants.
    Muffin and Devine, of Chicago (Thomas J. Shannon and Gerald B. Muffin, of counsel), for appellee.
   Mr. JUSTICE BURMAN

delivered the opinion of the court:

This is an action pursuant to section 13 of the Securities Law of 1953 (Ill. Rev. Stat. 1973, ch. 121½, par. 137.13) to void the sale of securities and to recover the purchase price, plus interest and attorney’s fees, on the ground that the securities were not registered with the Secretary of State as required by law. The plaintiffs moved for summary judgment on the theory that the defendant had violated the statute by failing to register the securities and by failing to qualify either the securities or the transaction in which they were sold as exempt from registration. The defendant countered with his own motion for summary judgment in which he asserted that the stock was sold in a transaction exempt from registration. Following a hearing, the court denied the plaintiffs’ motion and entered summary judgment in favor of the defendant. It is from this judgment that the plaintiffs bring the present appeal.

The material facts are not in dispute. In December 1968 the defendant informed Harold Greenburg that he was about to engage in a venture to distribute a photographic and electronic burglar security device. He stated that he had negotiated with the manufacturer to establish an exclusive territory in several midwestern states and the State of Florida. Greenburg indicated that he would like to participate in tire venture, and the defendant said that he would obtain suitable personnel and office space to market the device.

Subsequently it was decided that the defendant would form an Illinois corporation, to be called Photo-Scope Electronics of Wisconsin, Inc., as the vehicle through which the security systems would be sold and installed. The plaintiffs and the defendant entered into a preorganization subscription agreement in which they agreed that each of the plaintiffs would purchase 875 shares of stock at a price of $1 per share and that each would lend the corporation $1625. This subscription agreement was not registered with the Secretary of State. The plaintiffs gave the defendant a check for $5000 to cover the cost of the stock to be purchased by both of them ($1750) and the loans to be made by both ($3250). The defendant endorsed this check and cashed it.

No corporation was ever formed pursuant to the preorganization agreement, and on April 28, 1969, the parties to the present action and other investors, a total of 13, agreed instead to utilize their respective investments to fund an existing Illinois corporation known as Photo-Scope Electronics of Illinois, Inc. The subscription agreement between the plaintiffs and defendant was cancelled, and each of the plaintiffs was issued a sufficient number of shares of Photo-Scope Electronics of Illinois to give him an interest commensurate with that which he would have had in Photo-Scope Electronics of Wisconsin. At a shareholders’ meeting held the same day the defendant was elected president and a director of Photo-Scope Electronics of Illinois, and Harold Greenburg was elected secretary and a director.

On July 1, 1969, the plaintiffs sent a registered letter to the defendant demanding that he return their $5000, plus interest. The defendant did not respond, and on April 9, 1970, the plaintiffs filed their complaint. They alleged that the subscription agreement concerning Photo-Scope Electronics of Wisconsin had not been registered with the Secretary of State in violation of the Securities Law of 1953, that no corporation had even been formed and that therefore they were entitled to avoid the agreement and recover their money, plus interest and attorney’s fees. The defendant answered by admitting that no corporation had been formed under the subscription agreement and that the agreement had not been registered with the Secretary of State. He asserted, however, that the agreement was exempt from registration and prayed that the action be dismissed.

The sole issue presented to this court is whether the preorganization subscription agreement concerning Photo-Scope Electronics of Wisconsin, Inc., was exempt from the registration requirements of the Securities Law. The parties agree that the subscription agreement was a “security” as defined by section 2 — 1 of the act (Ill. Rev. Stat. 1973, ch. 121½, par. 137.2 — 1) and that there was a “sale” within the meaning of section 2 — 5. (Ill. Rev. Stat. 1973, ch. 121½, par. 137.2 — 5.) The area of disagreement centers upon the exemption established by section 4M. Ill. Rev. Stat. 1973, ch. 121½, par. 137.4M.

Section 4M provides that the sale of subscriptions for shares of stock of a corporation, or the shares themselves, prior to incorporation shall be exempt from the registration requirement established in section 5 (Ill. Rev. Stat. 1973, ch. 121½, par. 137.5) so long as no commission or other remuneration is paid on account of the sale and the number of subscribers does not exceed 25. In the present case, it is undisputed that the subscription agreement was executed and the purchase price of the stock was paid prior to incorporation. The defendant averred in his affidavit that at no time did the number of subscribers exceed 25, and in fact was 13, and that he received no commission of other remuneration in connection with the sale. The affidavits of Harold Greenburg, filed in behalf of the plaintiffs, contained no allegation to the contrary.

It appears from the foregoing that the defendant made a bona fide effort to comply with the requirements of section 4M and was entitled to the exemption provided for therein. The plaintiffs contend, however, that section 4M is intended to apply only to those situations in which a corporation is actually formed and thus that the agreement is not exempt. Such a construction is necessary, they argue, because otherwise the defendant or any other promoter “could avoid the thrust and intent of the [Securities Law] by obtaining funds, from no more than 25 persons, without commissions, in consideration for the formation and issuance of stock in the proposed corporation and never form the corporation.” In. such a situation the plaintiffs “would not only be barred from recovering their investment [but also would] be barred from exercising, as shareholders when the corporation is formed, control over their investment.”

We find this argument unpersuasive. If a situation of the type envisioned by the plaintiffs were to arise, we believe that an aggrieved subscriber would be afforded an adequate remedy by an action upon the subscription agreement itself or, if appropriate under the circumstances, in an action at law based upon fraud. The language of section 4M stating the requirements for the exemption is plain, and we see nothing that would enable us to engraft the additional requirement sought, by the plaintiffs.

In the present case, the plaintiffs have alleged no breach of the subscription agreement.- Rather, it appears that they acquiesced in its cancellation and accepted in lieu of their rights in it the shares of Photo-Scope Electronics of Illinois which were issued to them. They alleged no fraud or misrepresentation on the part of the defendant, but based their action solely upon the theory that the defendant, though acting in good faith, failed to comply with the Securities Law and therefore that they were entitled to the relief specified in section 13. We have reviewed the pleadings and affidavits contained in the record, and we are satisfied that the defendant met the requirements of section 4M and that the subscription agreement was exempt from registration. This being so, there was no violation of the act, and the trial court was correct in granting the defendant’s motion for summary judgment.

In conclusion we note that the plaintiffs have not alleged either in the trial court or on appeal that the subsequent issue of stock in Photo-Scope Electronics of Illinois in any way violated the Securities Law.. This is understandable because it appears from the record that they and the other investors voluntarily abandoned their plan to form Photo-Scope Electronics of Wisconsin and agreed instead to fund Photo-Scope Electronics of Illinois. We wish to make it clear, however, that our discussion and holding in the present case is limited to the preorganization subscription ■ agreement concerning Photo-Scope Electronics of Wisconsin, Inc.

For the foregoing reasons the judgment of the Circuit Court of Cook County is affirmed.

Affirmed.

DIERINGER and JOHNSON, JJ., concur.