author: Mr. JUSTICE DRUCKER

text:
    Martha Sue Sommer, a Minor, by Dorothy Sommer, her Mother and Next Friend, Plaintiff-Appellee, v. Eugene G. Schuett, Defendant-Appellee—(Constitutional Preferred Mutual Insurance Company, Garnishee-Appellant.)
    (No. 58461;
    First District (5th Division)
    July 12, 1974.

      Dalton P. Grief, of Chicago (Ellis R. Rosenzweig, of counsel), for appellant.
    Herbert F. Stride, Ltd., of Chicago, for plaintiff-appellee.
   Mr. JUSTICE DRUCKER

delivered the opinion of the court:

This is a garnishment proceeding brought by plaintiff against garnishee, the insurance carrier of Eugene Schuett. A default judgment in favor of plaintiff and against Schuett had been entered in the amount of $7500. Garnishee denied liability on the ground that Schuett never notified it that there was a pending action as was required by the insurance policy. The trial court, sitting without a jury, found for plaintiff. On appeal garnishee contends that the judgment entered below is either so contrary to the evidence that we must reverse and enter judgment in its favor or, at the least, remand for a new trial.

On August 19, 1968, plaintiff filed a complaint for personal injuries arising out of an automobile accident. A summons and copy of the complaint were served on Schuett, the defendant, in April 1971. On June 2, 1971, the case was called for trial on the regular trial call and dismissed for want of prosecution. Plaintiff petitioned the court to vacate the dismissal. A copy of the petition was sent to Schuett. On June 15, 1971, plaintiff’s petition was allowed and the case was returned to the trial call of the court. On September 30, 1971, a default judgment in the amount of $7500 was entered against Schuett. Plaintiff instituted the instant garnishment proceeding against garnishee, Schuett’s insurance carrier, on January 13, 1972. Garnishee, in denying liability, alleged that the first notice it received of the lawsuit was the service of the garnishment summons, and that the failure of Schuett to notify it of the suit constituted a breach of the insurance policy. It admits that it had received notice of die accident.

At trial Mrs. Eugene Schuett testified for plaintiff that she was insured by garnishee. Her husband was using her car at the time of the accident. He received the summons in April 1971. She knew that the summons had to be turned over to garnishee, and she prepared a receipt to be signed by someone employed by garnishee when the summons was j delivered to it.

Eugene Schuett testified for plaintiff that he understood that it was his obligation to turn the summons over to garnishee. On Saturday, April 17, 1971, he took the summons, complaint and receipt and “drove up Harlem Avenue” until he reached Milwaukee Avenue and then ‘Track down Milwaukee Avenue to Constitutional Preferred.” The offices were located in the 5600 block of Milwaukee Avenue. Although he could not recall the exact address, it was printed on the card issued with the insurance policy. He could not describe the building nor could he recall whether there were any distinctive markings on it. He went into the building and was met by a receptionist. He could not remember the exact location of her desk. He remembered that she was about 20 years old but could not describe her further. He gave her the summons and asked her to sign the receipt. The receptionist said she would check, came back in a few minutes and said there was nobody who would sign the receipt. He then took the receipt and left.

Edward Stretch, garnishee’s office manager, testified for garnishee that the office is located at 5618 North Milwaukee Avenue. It is in a one-story dark brick building. Flanking the door are panes of glass bearing the garnishee’s insignia which consists of the letters “CP” beneath a drawing of an eagle. Garnishee’s full name, Constitutional Preferred Mutual Insurance Company, also appears on the windows. April 17, 1971, was a Saturday; garnishee’s office is not open on Saturday. If any employees were present on a Saturday, they would be there at his direction; he did not direct anyone to be at the office on April 17, 1971.

Anthony Milewski, garnishee’s accounting supervisor, testified that his duties included the issuance of payroll checks. All women employees are required to punch in and out by time clock. If they do not have a time card punched, they do not get paid. No compensation was paid to any employee of garnishee for having worked on April 17, 1971. Time cards for the week ending April 16 and the week ending April 23 were introduced into evidence. There was no time punched for any employee for Saturday, April 17. He also testified that when the insurance policy in question was issued, garnishee’s office was located on Peterson Road.

Dolores Odo testified for garnishee that she is the secretary in charge of processing claims. Any summons or complaint received by the company is directed to her. She did not receive a summons or complaint in the suit of Sommers v. Schuett in April 1971. She was not a garnishee’s office on any Saturday during April 1971.

The court, in ruling in favor of plaintiff, stated that the testimony of Schuett impressed him.

OPINION

The sole contention raised on appeal is that insufficient evidence was adduced below to show that Eugene Schuett, pursuant to the terms of the insurance contract, presented to garnishee the complaint and summons which had been served upon him.

Although a court of review is empowered by Supreme Court Rule 366 (Ill. Rev. Stat. 1971, ch. 110A, par. 366) to review questions of fact, this court wiH not disturb a trial court’s finding unless that finding is against the manifest weight of the evidence. (Arakie v. Hatoff, 5 Ill.App. 3d 1073, 284 N.E.2d 703.) The rationale underlying this rule is that “* # # especially where the testimony is contradictory, the trial judge as the trier of fact is in a position superior to a court of review to observe the conduct of the witnesses whHe testifying, to determine their credibility, and to weigh the evidence and determine the preponderance thereof. We may not overturn a judgment merely because we might disagree with it or might, had we been the trier of facts, have come to a different conclusion.” Schulenburg v. Signatrol, Inc., 37 Ill.2d 352, 356, 226 N.E.2d 624.

In the case at bar Eugene Schuett testified that he defivered the summons to a receptionist at garnishee’s MHwaulcee Avenue offices on April 17, 1971. Although he could describe neither the exact address of the offices nor the appearance of the building in which they were housed, he was able to detail the route he took to them from his home.

The trial court, while taking cognizance of the contradictory evidence introduced by garnishee, explicitly found that he was impressed by Schuett’s testimony and entered judgment in favor of plaintiff. Viewing the evidence in its entirety, we believe that it does not favor garnishee so overwhelmingly that no contrary result could ever stand, and therefore we affirm this judgment. Cf. In re Application of County Collector, 131 Ill.App.2d 509, 266 N.E.2d 383.

Affirmed.

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


source: Caselaw Access Project

author: Mr. PRESIDING JUSTICE SULLIVAN

license: Public Domain

text:
    Santucci Construction Co., Plaintiff-Appellee, v. County of Cook, Defendant-Appellant.
    (No. 58921;
    First District (5th Division)
    July 12, 1974.

      Bernard Carey, State’s Attorney, of Chicago (Sheldon Gardner and Paul P. Biebel, Jr., Assistant State’s Attorneys, of counsel), for appellant.
    James G. O’Donohue, of Chicago (Paul P. Pennick and Philip J. Rock, of counsel), for appellee.
   Mr. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court:

This is an appeal by defendant from a decree rescinding a contract bid submitted by plaintiff and ordering the return of the $75,000 bid deposit, together with interest. The issues presented. for review are whether (1) the bid was the result of a mistake which justified rescission; (2) a presumption was raised against plaintiff because certain witnesses were not produced who allegedly were essential to its claim of mistake; (3) defendant was aware that a mistake was made; and (4) the court’s award of interest was proper.

In November, 1966, defendant advertised for bids concerning the construction of the main drain of the Dan Ryan Expressway, and on December 14, 1966, plaintiff and three other construction companies submitted bid proposals. With its bid, plaintiff tendered a $75,000 deposit which was subject to forfeiture and retention by defendant in the event plaintiff was low bidder and failed to execute the contract.

Plaintiff’s bid was $1,095,842, and the bids by the other three contractors were in the amounts of $1,693,353.85; $1,719,770; and $1,827,-904.90. Each, bid was required to specify a price for 7,132 lineal feet of drainpipe. In this regard, plaintiff’s bid price, including labor, was $108.50 per lineal foot, with the other three contractors specifying $169.00, $180.-00 and $200.00 respectively. The total price submitted by plaintiff for this item was $773,822 (its original estimate was $1,290,892); whereas, the prices specified by the other three contractors were $1,205,308; $1,283,760 and $1,426,400.

At the trial, Glenn Frederichs, Assistant Superintendent of Highways for defendant, testified that its cost estimate for the drainpipe, including labor, was $197.45 per lineal foot, with a total estimated cost of $1,408,213.40. He also testified that the county’s estimate for the cost of the entire project was $1,937,856.40. When plaintiff refused to enter into a contract for the project, bids were again requested and submitted, with the low bid of $1,596,554 obtaining the contract.

Richard Cramer, head of the Estimating Division of defendant, testified that the county’s estimated cost for the pipe was $125.00 per lineal foot to which was added labor and material charges to obtain its estimated price of $197.45 per lineal foot. He testified it was his impression that plaintiff’s bid of $108.50 per lineal foot was “cheap, low.”

Carlo Santucci, General Manager of plaintiff, testified that on December 14, 1966, the day the bid was submitted, he was returning with Nicholas Santucci, President of plaintiff, from Indiana where they had been for two days and, upon radioing his office, he was informed that plaintiff was the low bidder on the project and that there had been a large discrepancy in bids. When he arrived at the company office, he examined the bid sheets and discovered that the original and intended material cost for the pipe of $142.75 per foot had been scratched out, and the figure of $74.00 had been substituted. He testified he could not buy the pipe for the latter figure and that before he went to Indiana the $142.75 cost figure had been used in their estimate, and he did not become aware of the substitution until his return. He also stated that plaintiffs estimator, Geza Zoltani, who had prepared the bid, had made the change.

Geza Zoltani testified that Nicholas Santucci, on the morning of December 14, 1966, told him to alter the bid so that it totaled approximately $1,095,000. He stated Nicholas Santucci was not out of town on that date and that he (Nicholas Santucci) had signed the bid book in the morning before his (Zoltani’s) submission of the bid. He denied telling Carlo Santucci that he received a telephone bid from a supplier of drainpipe, offering a 50% discount. He admitted that he lost his pension rights when he left plaintiff to work for another contractor, and he denied, in the presence of Carlo Santucci and John Durgom, that he said he would testify in favor of plaintiff if his pension rights were reinstated.

John Durgom, president of Durgom Concrete Pipe Company, testified he had submitted an estimate to plaintiff of approximately $145.00 per lineal foot for the drainpipe in question. He was present in the hall outside the courtroom when Geza Zoltani told Carlo Santucci something like, “If you say that I get my pension, I can say what you want me to say in court.”

Carlo Santucci was recalled and testified that Zoltani approached him in the courthouse and said, “I am unhappy about losing my profit sharing and if there was something I (Carlo Santucci) could do to get him his profit sharing, that he could see that this case went in our favor.” He also testified that he and Nicholas Santucci on the morning of December 14, 1966, were in Terre Haute, Indiana and that when he returned to the company office, Zoltani told him he had changed the price of the pipe after a phone call from Vulcan Materials, giving a 50% discount on the cost of the pipe. The practice of obtaining quotations by telephone was customary.

It further appears that on December 15, 1966, plaintiff sent a letter to defendant requesting that the bid be withdrawn; that defendant accepted plaintiff’s bid on January 3, 1967, and when plaintiff refused to enter into a contract, that defendant retained plaintiff’s bid deposit.

The trial court found that (1) plaintiff had made a mistake in the amount of its bid; and (2) defendant should have known that a mistake had been made. It rescinded the bid proposal and ordered that the $75,-000 deposit be returned to plaintiff together with interest from December 15, 1966 to April 27, 1970, the date of the first hearing.

OPINION

Defendant first contends that plaintiff failed to sustain its burden of showing that a mistake justifying rescission had been made. It argues that if there was an error in the bid, it was the result of poor business judgment or negligence, neither of which would justify rescission.

We initially point out that the trial court’s findings will not be disturbed on appeal where there is evidence in the record to support them and they are not against the manifest weight of the evidence. Kenny Construction Co. v. Metropolitan Sanitary District, 52 Ill.2d 187, 288 N.E.2d 1.

Here, we note that the bid eventually accepted was for $1,596,554, and there was a great disparity in the specified cost of drainpipe in the various bids and estimates. Plaintiff’s bid was (1) over $500,000 less than in its original estimate; (2) over $600,000 less than in defendant’s estimate of drainpipe; (3) over $400,000 less than the next lowest bidder; and (4) over $650,000 less than the highest bidder. As a matter of fact, defendant’s estimate for the entire project ($1,937,856.40) was $842,000 more than plaintiffs bid ($1,095, 842), which figure was $300,000 less than defendant’s estimated cost of the drainpipe alone ($1,408,213.40). This disparity resulted primarily from the change by Zoltani of the cost of drainpipe (base price and material cost) from $181.00 per lineal foot in plaintiff’s original estimate to $108.50 in the submitted bid. In addition, Carlo Santucci testified he could not purchase drainpipe for $74.00 per lineal foot, the base price used by Zoltani in reaching the $108.50 cost in the submitted bid, and furthermore, it appears that defendant had estimated a base price of $125.00 per lineal foot for drainpipe.

Furthermore, Zoltani admitted he had no authority to submit bids without the approval of Nicholas Santucci, but it was his testimony that the latter had approved the changes on the morning of December 14, 1966, the date the bid was submitted. Carlo Santucci testified that he and Nick Santucci were out of town on that day and when they returned he was informed by Zoltani that the changes had been made after he received a telephone call from Vulcan Materials quoting a price of $74.00 per lineal foot for the pipe.

It is apparent from its decision that the trial court decided that Carlo Santucci was more credible than Zoltani and, on the question of whether Nicholas Santucci had directed or approved the change, we find no difficulty in accepting the court’s conclusion to the contrary, particularly in view of the testimony of Carlo Santucci, corroborated by John Durgom, that Zoltani was willing to testify favorably to plaintiff if his pension rights were restored. Having so decided, the trial court could have determined that Zoltani mistakenly used the base figure of $74.00 in determining the cost of the drainpipe. In any event, we believe the totality of the evidence sufficiently supports the finding that a mistake had been made.

We turn now to the question as to whether the mistake justified rescission, and it is noted that in People ex rel. Department of Public Works and Buildings v. South East National Bank, 131 Ill.App.2d 238, 266 N.E.2d 778, where the trial court rescinded a bid and ordered the return of the bid deposit, it was stated at page 241 that the conditions generally required for rescission are (1) that the mistake relate to a material feature of the contract; (2) that it is of such grave consequence that enforcement of the contract would be unconscionable; (3) that it occurred notwithstanding the exercise of reasonable care; and (4) that the other party can be placed in statu quo.

Here, in view of the fact that the mistake involved the drainpipe cost, which was three-fourths of the cost of the entire project, it clearly involved a material element of the contract. It appears also that plaintiff stood to lose a substantial sum if it performed at the price quoted in its submitted bid of $1,095,842. This amount was almost $600,000 less than the next lowest bid and $500,000 less than the bid of $1,596,554 subsequently entered into by defendant for construction of the drain. Under those circumstances, we are of the opinion that it would have been unconscionable to enforce the contract.

The trial court, in rescinding the bid, necessarily found that the mistake occurred despite the use of reasonable care on the part of plaintiff. Defendant contends that whether or not Zoltani was authorized to make the bid changes, he was negligent in doing so without further verification of the Vulcan price quote. Defendant refers us to Steinmeyer v. Schroeppel, 226 Ill. 9, 80 N.E. 564, where in adding figures a mistake of $421.00 was made in an $1,867.00 bid. The Illinois Supreme Court found the mistake was the result of negligence and required the fulfillment of the contract. We note however that at pages 14-15 the court stated:

“A mistake which will justify relief in equity must affect the substance of the contract, and not a mere incident or the inducement for entering into it. The mistake of the appellants did not relate to the subject matter of the contract, its location, identity or amount, and there was neither belief in the existence of a fact which did not exist or ignorance of any fact material to the contract which did exist.”

In the instant case, as we have stated above, the mistake was one of substance which did relate to the subject matter of the contract; there was belief in a fact which did not exist, the $74.00 per lineal foot base price for drainpipe. Thus, it would appear that Steinmeyer supports the finding of due care by the trial court here. Moreover, the question of due care is one of fact to be decided by the trial court whose findings will not be disturbed unless they are manifestly against the weight of the evidence. (Kenny Construction Co. v. Metropolitan Sanitary District, supra.) Here, the evidence indicates that it was customary in the construction business to receive and act upon telephone price quotes. There is no testimony of any practice requiring verification or that there was some custom in that trade to prepare and submit bids in any other manner. In view thereof, it is our belief that the mistake was not the result of negligence.

As to whether defendant can be placed in statu quo, there was testimony to the effect that federal participation in the project was reduced to reflect the $75,000 forfeiture by plaintiff. However, it should be noted that plaintiff promptly notified defendant on December 15, 1966, of its intention to withdraw. Defendant could have allowed plaintiff to withdraw at that time, and thus no federal funds would have been lost. Furthermore, it appears that the contract was subsequently relet for $1,596,554, which was approximately $100,000 less than the second lowest bid submitted on December 14, 1966. Under the circumstances, it was apparent that defendant was not prejudiced.

Accordingly, we believe that the four conditions for rescission as set forth in South East National Bank were met.

We will next consider the propriety of the trial court’s finding that defendant should have known of plaintiff’s mistake. Defendant argues that plaintiffs bid was not on its face so grossly disproportionate to the other bids as to give notice that the bid was a mistake. In this regard, we note that in Bromagin v. City of Bloomington, 234 Ill. 114, 84 N.E. 700, in holding that the party to whom the bid was made was aware of a mistake at the time the bid was accepted, the court stated at page 120:

“The bid submitted showed, by one item thereof, that appellees proposed to furnish and lay 6020 feet of sixteen-inch pipe for a sum therein designated. This sum was less than they could purchase this pipe for, leaving out of consideration the expense of laying the same. The city engineer, who was a member of the board of local improvements, observed this fact and acquainted the other members of the board therewith. It seems apparent, therefore, that the board of local improvements accepted the bid knowing that this mistake had been made. * * * Bromagin discovered the error in his bid and notified the city attorney of the same and asked to be relieved from any further obligation on the day and within five hours after the bid was accepted and before any contract had been actually signed. It does not appear but that the city, after Bromagin called on the city attorney, could have accepted some one of the other bids made.”

We have previously noted the great disparity in the bids here, including the fact that plaintiff’s submitted bid for the entire project was over $300,000 less than defendant’s estimate for the cost of the pipe, and we cannot accept defendant’s contention that they were not so disproportionate as to give notice that plaintiff’s bid was the result of a mistake. Richard Cramer, head of the Estimating Division of defendant’s Highway Department, testified that he considered plaintiff’s bid to be “cheap, low.” Moreover, the record discloses that plaintiff, after discovering the mistake and believing that it could not perform the contract as submitted, sent a letter to defendant on December 15, 1966, the day after its bid was submitted, requesting withdrawal of the bid. Approximately seventeen days later, defendant accepted the bid, even though it was clearly evident that there were large discrepancies between the amounts of the bids and particularly between plaintiff’s bid and defendant’s own estimate (over $842,000). We think the record amply justifies the trial court’s finding that defendant should have been aware of plaintiff’s mistake.

Defendant also contends that plaintiff’s failure to produce a witness within its control created a presumption that the testimony of that witness, if produced, would be adverse to plaintiff. In support thereof, defendant points out that Zoltani testified that he was directed by Nick Santucci to make changes in the bid, and argues that the trial court

erred in accepting Carlo Santucci’s uncorroborated testimony that Zoltani had informed him of the telephone call from Vulcan Material Company, quoting a $74.00 base price for the drainpipe. Defendant maintains that the failure on the part of plaintiff to produce someone from Vulcan to corroborate the telephone call raises the presumption that there was no such call and substantiates Zoltani’s testimony that he was directed to change the bid.

It is the general rule that where a potential witness is available and appears to have information relevant to the case which would not be merely cumulative, and where his relationship with one of the parties is such that the witness would ordinarily be expected to favor him, then if such party does not produce his testimony, the inference arises that it would have been unfavorable. (Biel v. Wolff, 126 Ill.App.2d 209, 261 N.E.2d 474.) Here, Carlo Santucci testified, when called in rebuttal, that he had a conversation with Zoltani in which the latter stated he had received a telephoned cost quote from Vulcan. As we view the record, it appears to have been accepted by the court as impeachment and that a proper foundation was laid for this impeachment in that Zoltani, in his prior testimony, had denied the conversation. Under the circumstances, to produce a witness from Vulcan merely to testify that a telephone call had been made would be merely cumulative. Furthermore, it does not appear that plaintiff was aware of the name of the individual from Vulcan who allegedly made the telephone call to Zoltani or that Vulcan kept a record of the cost quote. In addition, the record does not disclose any relationship whereby Vulcan might be expected to favor plaintiff. In view thereof, it is our opinion that the court did not err in accepting Carlo Santucci’s testimony concerning the conversation with Zoltani. See Biel v. Wolff, supra.

Finally, defendant contends that, assuming we find a mistake justifying rescission of plaintiff’s bid, it should only be liable for interest from the date of judgment. It argues that the trial court improperly awarded interest, “at the statutory rate, from December 15,1966 to April 27,1970.”

In their briefs, both parties refer to section 2 of the interest statute (Ill. Rev. Stat. 1973, ch. 74, par. 2) as controlling. In pertinent part it provides:

“Creditors shall be allowed to receive at the rate of five (5) per centum per annum for all moneys after they become due on any bond, bill, promissory note, or other instrument of writing; * * * and on money withheld by an unreasonable and vexatious delay of payment.”

In Kespohl v. Northern Trust Co., 131 Ill.App.2d 188, 266 N.E.2d 371, the court held that to apply the theory of unreasonable and vexatious delay, the evidence must show that the debtor had placed obstacles in the way of collection or had induced the creditor to delay taking proceedings to collect, and that to defend a lawsuit is a right which cannot be construed as unreasonable and vexatious delay.

In the instant case, we are of the opinion that there was an honest dispute as to whether defendant was legally obligated to return plaintiff’s bid deposit. In addition, it appears from the record that plaintiff did not bring suit in this matter until March of 1968, a year and a half after its bid was accepted. Neither does it appear that defendant was responsible for the delay in bringing this matter to trial, or that defendant used any other tactics which could be considered the unreasonable and vexatious delay of payment.

For the reasons stated, we believe that the trial court’s award of interest, pursuant to section 2 of the interest statute, was unwarranted and should be reversed.

Accordingly, the judgment is affirmed as to the rescission of the bid and the award of $75,000.00 to plaintiff but is reversed as to the award of interest from December 15, 1966 to April 27, 1970.

Affirmed in part; reversed in part.

BARRETT and DRUCKER, JJ., concur.

       Plaintiff is, however, entitled to interest at the rate of six percent per annum from the date of judgment, under the provisions of section 3 of the interest statute of Illinois (Ill. Rev. Stat. 1973, ch. 74, par. 3).


author: Mr. JUSTICE LORENZ

text:
    James E. Boyles, Plaintiff-Appellee, v. Robert Freeman, Defendant—(State Farm Mutual Automobile Insurance Company, Garnishee-Defendant-Appellant.)
    (No. 59058;
    First District (5th Division)
    July 12, 1974.

      Querry, Harrow, Gulanick & Kennedy, Ltd., of Chicago (John J. Cor-bett, of counsel), for appeHant.
    Charles T. Booher, Jr., of Chicago, for appeHee. j
   Mr. JUSTICE LORENZ

delivered the opinion of the court:

Plaintiff sued defendant, Robert Freeman, to recover damages for personal injuries he sustained as a result of defendant’s negligent operation of his automobile. A bench trial resulted in a judgment in favor of plaintiff in the amount of $20,000. Plaintiff instituted this supplementary action to garnish Freeman’s funds or property aUegedly held by defendant-garnishee State Farm Mutual Automobile Insurance Co. by reason of it having issued Freeman an insurance policy providing him coverage for bodily injuries in the amount of $10,000. This appeal is taken from the entry of a judgment in favor of plaintiff and the denial of State Farm’s post-trial motion to vacate that judgment.

At the garnishment hearing, State Farm denied that it held any of Freeman’s funds or property and contended that the contemplated contract for insurance was rendered void ab initio by its election to rescind for a material misrepresentation in Freeman’s application.

By stipulation of the parties the evidence was limited solely to defendant Freeman’s deposition transcript, the application for insurance, State Farm’s letter to Freeman dated February 27, 1967, and a letter from State Farm’s attorney to plaintiff’s attorney dated June 22, 1972. No objections were made to any part of the deposition or documents.

The aforementioned evidence indicates that Joseph Romano, an agent for State Farm, interviewed defendant’s wife at their home on February 8, 1967, in preparation of her husband’s application for automobile insurance. Defendant Freeman was not at home, but was interviewed over the telephone at his office. Romano asked defendant if his license had ever been suspended, revoked or refused and he answerd “Yes it had.” Romano asked when that had taken place and he said “I reaHy don’t remember.” When asked if it had been within the last five or six years, defendant stated: ‘1 am sure it was over five years ago.” He also stated that he couldn’t be sure because he did not have his driver’s license with him. Romano told defendant not to worry about it and defendant said “Yes, it has been suspended but whether it has been in the last five years, I really don’t remember.” Romano wrote “No” to the application form’s question: “Has license to drive or registration been suspended, revoked or refused for the applicant, or any member of his household, within the past five years.” The application was signed by defendant’s wife and forwarded for processing. The effective date of coverage was the date the application was written.

Plaintiff sustained personal injuries on February 12, 1967, when he was struck by an automobile operated by defendant. On the date of the accident, defendant notified Romano who assured him that he was covered under State Farm’s policy. On February 27, 1967, State Farm informed defendant that it had discovered that his license had been suspended on January 3, 1963, within five years of the application date, that his application contained “No” to such a question, that this was a material misrepresentation, and that therefore his policy was rescinded. State Farm enclosed a check for the full amount of the premium paid which defendant subsequently cashed.

OPINION

State Farm contends that the insurance contract was rendered void ab initio by its election to rescind because of defendant’s material misrepresentation in his application. The parties have stipulated to the fact that if State Farm had knowledge of defendant’s suspended driver’s license within the five year period, it would have rejected his application and declined to issue a policy.

State Farm equates Freeman’s statements concerning his driver’s license suspension to a misrepresentation of a material fact by the insured thereby defeating or avoiding the policy. (Ill. Rev. Stat. 1971, ch. 73, par. 766; Western & Southern Life Insurance Co. v. Tomasun, 358 Ill. 496, 193 N.E. 451.) Plaintiff on the other hand portrays this action as the recordation on the application of false or incorrect answers by the insurer’s agent after correct oral answers had been made by the insured thus estopping the insurer from denying its liability. (Oberg v. John Hancock Mutual Life Insurance Co., 114 Ill.App.2d 152, 251 N.E.2d 918; Germania Fire Insurance Co. v. McKee, 94 Ill. 494.) However, in our view, this appeal is factually distinguishable from either situation.

We perceive the issue to be the legal effect of the insured’s having made a qualified or ambiguous response in good faith to an application question which is interpreted in good faith by the insurer’s agent and recorded into a positive assertion that proves to be false. While the parties have not cited any case that is on all fours with this issue, its resolution may be reached by the extrapolation from cases that at least in part touch upon the question posed.

It has been stated that when an insured in good faith qualifies his statements, the insurer has the choice of ignoring the limitation or refusing the risk, but it cannot ignore the limitations and then seek to avoid the policy because the statement without the qualifications is false. (Couch on Insurance (2d ed. 1961) § 35:149.) For example, in Ginsberg v. Faraone (1932), 126 Cal.App. 337, 14 P.2d 777, where the applicant had answered that to her knowledge she did not have any physical or mental disease, the court held that where the answers of the applicant are limited or qualified by a particular or general expression, effect must be given to that intent. (Accord, Northwestern Mutual Life Insurance Co. v. Gridley, 100 U.S. 614, 25 L.Ed. 746.) Furthermore, notwithstanding any warranties on the application, in order for the insurer to avoid the policy, the answers by the insured that are stated to be true to the best of his knowledge are required to not only be proven false but also that the insured knew them to be false. Kidder v. Supreme Assembly of the American Stars of Equity, 154 Ill.App. 489.

Similarly, where the applicant unintentionally makes ambiguous or doubtful representations, the insurer is required to make further inquiry or be deemed by its neglect so to do, to have waived the ambiguity or its incompleteness. “If the expressions are ambiguous, the insurer ought to ask an explanation, and not substitute his own conjectures for an alleged representation.” Livingston v. Maryland Insurance Co., 11 U.S. (7 Cranch) 506, 3 L. Ed. 421; Couch on Insurance (2d 1961) § 35:148.

The insurer is also estopped from avoiding the policy for untrue representations in the application where the insured discloses facts to the agent, and the agent in undertaking to fill out the application does not state the facts as they are disclosed to him but instead inserts conclusions of his own or answers inconsistent with the facts. (Provident Savings Life Assurance Society v. Cannon, 201 Ill. 260, 66 N.E. 388; Phenix Insurance Co. v. Stocks, 149 Ill. 319, 36 N.E. 408; Phoenix Insurance Co. v. Whiteleather, 34 Ill. App. 60; Turner v. Modern Woodmen of America, 186 Ill. App. 404.) And, the result is the same where the incorrect answer is entered pursuant to suggestion, advice or interpretation of the insurers agent. Germania Fire Insurance Co. v. McKee, 94 Ill. 494; Royal Neighbors of America v. Boman, 177 Ill. 27, 52 N.E. 264.

The composite of these principles makes clear that State Farm is estopped from avoiding the policy with respect to this garnishment action for the answer in defendant’s application. Defendant’s statements to Romano when reviewed in their complete context, were made in good faith in an attempt to fully disclose the fact that his driver’s license had been suspended. The date of that suspension was qualified or perhaps ambiguous by defendant stating at first positively that he was “sure it [the suspension] was over five years ago.” but then stating that he really couldn’t be sure since he didn’t have his driver’s license with him, and finally remarking, “Yes it had been suspended, but whether it has been in the last five years, I really don’t remember.” Agent Romano concluded or interpreted this narrative in a single word “No” which does not accurately state the facts disclosed to him and, as was later proven, was an erroneous response to the question concerning whether the applicant’s driver’s license had been suspended within the last five years.

The agent’s knowledge or notice of defendant’s qualified statements is, in the absence of collusion, imputed to the insurer. (Niemann v. Security Benefit Ass’n, 350 Ill. 308, 183 N.E. 223, and it is immaterial whether the agent actually communicates such matters to the insurer. (Van Hulle v. State Farm Mutual Automobile Insurance Co., 44 Ill.2d 227, 254 N.E.2d 457.) Accordingly, agent Romano’s failure by mistake or negligence to impart to State Farm the facts disclosed by defendant estops the insurer from claiming a forfeiture of the policy.

State Farm has contended that defendant’s qualifying statements contradict or modify the answer in the written application and are therefore by their admission into evidence, a violation of the parol evidence rule. This argument has been previously considered and rejected in Illinois. (Guter v. Security Benefit Ass’n, 335 Ill. 174, 166 N.E. 521; Andes Insurance Co. v. Fish, 71 Ill. 620.) Furthermore, State Farm’s failure to object at the taking of defendant’s deposition and its stipulation of the facts at the trial court waives any objection to our consideration of that evidence. Louisville, N.A. & C. Ry. Co. v. Shires, 108 Ill. 617; People v. Daniels, 50 Ill.App.2d 108, 200 N.E.2d 110; Dreiske v. Jones & Adams Co., 133 Ill.App. 572.

The judgment of the circuit court is affirmed.

Affirmed.

SULLIVAN, P. J., and DRUCKER, J., concur.


author: Mr. JUSTICE BARRETT

text:
    Honore M. La Pierre, Individually and as Adm’r of the Estate of Elizabeth La Pierre, Deceased, a/k/a Elizabeth Ayers Bearden La Pierre, Plaintiff-Appellant, v. Oak Park Federal Savings & Loan Association, Defendant-Appellee.
    (No. 59575;
    First District (5th Division)
    July 12, 1974.

      Richard D. Price and Frederick J. Bertram, both of Chicago, for appellant.
    John D. Plattner, of Chicago (Walsh, Case & Coale, of counsel), for appellee.
   Mr. JUSTICE BARRETT

delivered the opinion of the court:

Plaintiff, individually and as administrator of the estate of his late wife, appeals from the judgment entered on a jmy verdict for defendant.

Plaintiff alleged in count one of his complaint that on August 27, 1968, he and his wife purchased a $10,000 certificate of deposit at defendant savings and loan association; that they signed a signature card providing that in the event of his wife’s death, the deposit and accrued interest thereon would be paid to plaintiff; that the certificate recited that “Elizabeth' A. La Pierre P.O.D.” was the holder of the account; that his wife died on December 6, 1968; that by reason of defendant’s gross negligence the signature card was lost, mislaid, or destroyed; and that subsequent to his wife’s death (date not indicated in record), plaintiff made demand for payment, and defendant wilfully refused to pay him.

Count two was essentially the same as count one, but it omitted the claim that defendant negligently lost the signature card.

In its answer, defendant denied most of the allegations of plaintiff’s complaint, admitting only that plaintiff’s wife deposited the funds and signed a signature card, that defendant issued and delivered the certificate to her, and that plaintiff made demand for payment. The association alleged as a defense that on the day of deposit plaintiff’s wife signed a signature card designating Shirley J. Kalergis as beneficiary of the account, payable on death, and that on January 30, 1969, defendant paid the account balance to the beneficiary upon delivery of the necessary documents, including the certificate of deposit.

Plaintiff’s reply denied defendant’s defense and reiterated plaintiff’s allegations concerning the signature card. The reply set forth statements allegedly made by defendant’s assistant secretary in the course of discovery proceedings in the probate division, to the effect that defendant could not find the signature card executed by plaintiff’s wife.

Three years later, in February, 1973, plaintiff filed an additional count, alleging that plaintiff signed a signature card at the time of deposit; that defendant’s officer led him to believe that the card established the deposit as a joint account of plaintiff and his wife, with right of survivor-ship; that subsequent to his wife’s death, plaintiff gave the certificate of deposit to Shirley Kalergis, his wife’s daughter by a prior marriage; that the daughter presented the certificate to defendant, which wrongfully paid the proceeds to her; that on May 22, 1969, plaintiff was appointed administrator of his wife’s estate; that in a citation proceeding in September, 1969, an officer of defendant testified that he was unable to find the signature card for the account in question; that neither defendant’s new account record nor the certificate of deposit indicates a beneficiary or joint owner of the account; and that the matters raised in defendant’s answer did not constitute a defense because the signature card designating Shirley Kalergis purported to effect a testamentary disposition but did not comply with the Statute of Wills and was therefore void, and because section 4 — 10(c) of the Illinois Savings and Loan Act violates the constitution of Illinois. Plaintiff further averred that the “alleged testamentary disposition” would be a fraud on his marital rights under the Statute of Frauds and Perjuries, and that the funds were needed to pay claims against the estate, debts, the spouse’s award, and the plaintiff’s statutory share in the estate.

By order of court defendant was relieved from filing an answer to the additional count. Plaintiff did not record any objections.

OPINION

Both in the pleadings and on appeal defendant relied on section 4— 10(c) of the Illinois Savings and Loan Act. (Ill. Rev. Stat. 1973, ch. 32, par. 770(c).) It provides for accounts by which the holder and the savings and loan association may agree in writing that upon the death of the holder the balance of the account shall be paid to or held by a person or persons designated by the holder. By operation of statute, upon the death of the holder, the person or persons designated by him and who have survived him become the owners of the account, and any payment made by the savings and loan association to any of such persons “shall be a complete discharge” of the associations obligation as to the amount paid. (Emphasis added.) Ill. Rev. Stat. 1973, ch. 32, par. 770(c) (1):

Plaintiff maintains that the statute is unconstitutional on two grounds. We agree with plaintiff that the constitutionality of the provision of the Savings and Loan Act in question, which became law in 1955 and was amended in 1961, must be determined under the 1870 constitution, which was in effect at those times. (Dee-El Garage, Inc. v. Korzen, 53 Ill.2d 1, 289 N.E.2d 431.) Plaintiff refers us to article IV, section 13, of the 1870 constitution, which provided that “No act hereafter passed shall embrace more than one subject, and that shall be expressed in the title.” The objects of this provision were to give information as to the subject with which an act deals, and to prevent joining in a single act incongruous or unrelated matters. (People v. Handzik, 410 Ill. 295, 102 N.E.2d 340, cert. denied, 343 U.S. 927, 96 L.Ed. 1337, 72 S.Ct. 760.) The tide of the Illinois Savings and Loan Act is “An Act to revise and codify the laws in relation to Savings and Loan Associations and to provide penalties for the violation thereof, and to repeal an Act dierein named.” (Laws of 1955, p. 849.) Section 4 — 10(c) indicates one type of account that a savings and loan association may offer to the public. In no way can the provision be considered “incongruous or unrelated” to “laws in relation to Savings and Loan Associations.”

Plaintiff argues that the Act violates article IV, section 22, of the 1870 constitution, which provided that “The general assembly shall not pass local or special laws 6 # * For * # * Granting to any corporation, association or individual any special or exclusive privilege, immunity or franchise whatever.” The Illinois Supreme Court has held that laws will not be regarded as special or class legislation merely because tiiey affect one class and not another, provided they affect all members of the same class alike. (People v. Callicott, 322 Ill. 390, 153 N.E. 688.) In the legislation at issue, the entire class of savings and loan associations, not only defendant, may offer payment-on-death accounts. In applying equally to all savings and loan associations in Illinois, the statute embraces all who occupy a similar position, and so is a constitutionally permissible general law. People ex rel. County of Du Page v. Smith, 21 Ill.2d 572, 173 N.E.2d 485.

Plaintiff also contends that the statute in question is contrary to several state statutes. Specifically, he maintains that since ownership of the account passes at the death of the holder, the written agreement purporting to provide for the transfer must conform to the Statute of Wills, which requires testamentary documents to be signed by two witnesses. (Ill. Rev. Stat. 1973, ch. 3, par. 43.) This argument was considered and rejected by this court in In re Estate of Gubala, 81 Ill.App.2d 378, 225 N.E.2d 646.

Plaintiff maintains that this case is controlled by section 6 of the Statute of Frauds and Perjuries. It states that “Every conveyance of goods and chattels on consideration not deemed valuable in law shaU be taken to be fraudulent, unless the same be by wiU duly proved and recorded * * (ILL. Rev. Stat. 1973, ch. 59, par. 6.) In Estate of Gubala we applied common rules of statutory construction and concluded that it was the intention of the legislature to validate the disposition of funds in a payment-on-death account even though the form of the disposition is irreconcilably inconsistent with that prescribed by the Statute of Wills. Similarly, insofar as section 4 — 10(c) of the Illinois Savings and Loan Act is inconsistent with section 6 of the Statute of Frauds and Perjuries, the latter is supplanted by the former, for the reasons set forth in In re Estate of Gubala.

Finally, plaintiff argues that section 4 of the Statute of Frauds and Perjuries, invalidating transfers made with intent to defraud “creditors or other persons” shall be void against tiróse persons, applies to this case. (Ill. Rev. Stat. 1973, ch. 59, par. 4.) In his complaint, however, plaintiff fails to allege that his wife intended to defraud him of his marital rights. On the contrary, plaintiff alleged that his wife attempted to create a joint account giving him right of survivorship. We note also that opening an account payable on death to one’s daughter, absent other circumstances, hardly can be considered to constitute fraud on a surviving spouse.

Plaintiff also attempts to rely on the recent IUinois Supreme Court decision in Montgomery v. Michaels, 54 Ill.2d 532, 301 N.E.2d 465. It held that although Totten trusts are generally valid under the common law, balances in Totten trusts should be available for the payment of expenses of administering the estate of the decedent, debts, the surviving spouse’s award, and his statutory share, if these expenses cannot otherwise be paid. The Montgomery opinion did not by its terms apply to statutorily created payment-on-death accounts, such as the one at issue herein. Nor did the court reach the issue of a savings and loan associa-turns liability to the estate for payment of the needed funds to the designated beneficiary of either a Totten trust or a payment-on-death account. On the record before us, we also need not resolve these issues.

Although plaintiff, in his motion for judgment notwithstanding the verdict, stated that sufficient undisputed evidence as to the estate’s need for the funds was presented to the jury, we have no way of determining the accuracy of this claim. It is a basic principle of appellate practice that a party who brings a cause to a reviewing court must present in the record the proceedings to show the error complained of. (Alsip Home-builders, Inc. v. Shusta, 6 Ill.App.3d 65, 284 N.E.2d 509.) Plaintiff has failed to provide this court with a report of proceedings or an acceptable substitute in accordance with Supreme Court Rule 323 (Ill. Rev. Stat. 1973, ch. 110A, par. 323). Accordingly, this issue, and others raised by plaintiff for which the evidence offered at trial would be necessary to our determination, is not subject to review by the court.

For the reasons stated, the judgment of the circuit court is affirmed.

Affirmed.

SULLIVAN, P. J., and DRUCKER, J., concur.

       The initials “P.O.D.” are used generally by financial institutions as an abbreviated form, meaning “payable on death.”


text:
    Carl Erickson, Plaintiff-Appellant, v. Toledo, Peoria & Western Railroad et al., Defendants-Appellees.
    (No. 59675;
    First District (5th Division)
    July 12, 1974.

      John Bernard Cashion and Paul F. Davidson, both of Chicago, for appellant.
    Lord, Bissell & Brook, of Chicago (Richard E. Mueller, Cornelius B. Callahan, and John J. Berwanger, of counsel), for appellee Toledo, Peoria & Western Railroad.
    Barry N. Gutterman, of Chicago, for appellee Burlington Northern, Inc.
   Mr. JUSTICE DRUCKER

delivered the opinion of the court:

This is an action by plaintiff, a volunteer fireman, to recover damages for personal injuries he suffered while fighting a fire that occurred after the derailment of a train operated by defendant Toledo, Peoria & Western Railroad. The alleged cause of the derailment was a malfunction in the friction bearing of a railroad car owned by defendant Burlington Northern, Inc. The court below granted defendants’ motion to dismiss the complaint for failure to state a cause of action, and plaintiff appeals. He contends that a fireman who has been injured while fighting a fire has a cause of action against a defendant whose negligence caused the blaze.

Plaintiffs complaint alleged that he was a member of the volunteer fire department of the Village of Bradley. On June 21, 1970, pursuant to his duties as a member of the fire department, he was summoned to a fire at the site of the derailment. Included in the derailed train’s complement of cars were 12 tankers containing liquified propane gas. The heat from the fire caused the pressure inside these cars to build up, giving rise to the danger of explosion. Plaintiff’s assignment was to assist in setting up a device to direct a stream of water onto one of the cars. It was standard procedure in fighting fires of this nature to attempt to cool down the cars so that they would not explode. After setting up the hoses, plaintiff retreated to a distance of one city block from the fire. Despite these efforts, one of the tank cars exploded, injuring plaintiff.

OPINION

It is plaintiff’s basic contention that the negligent creation of a fire hazard imposes liability upon defendants for the injuries he received in the performance of his duties.

Traditionally a landowner has been absolved from liability for injuries suffered by a fireman while the fireman was acting within the scope of his duties. (See, e.g., Gibson v. Leonard, 143 Ill. 182, 32 N.E. 182; Lunt v. Post Printing & Publishing Co. (1910), 48 Colo. 316, 110 P. 203; Woodruff v. Bowen (1893), 136 Ind. 431, 34 N.E. 1113; 3 Cooley on Torts (4th ed. 1932) 198.) Most jurisdictions, however, have abandoned this rather harsh rule. Rather, while recognizing “that it is the fireman’s business to deal with 6 * * dangerous situations, [and therefore] he cannot complain of negligence in the creation of the very occasion for his engagement,” they have held that liability will lie where negligent conduct creates “undue risks of injury beyond those inevitably involved in fire fighting.” (Krauth v. Geller (1960), 31 N.J. 270, 273-274, 157 A.2d 129, 131. See also Giorgi v. Pacific Gas & Electric Co. (1968), 266 Cal.App.2d 355, 72 Cal.Rptr. 119; Scott v. E.L. Yeager Construction Co. (1970), 12 Cal.App.3d 1190, 91 Cal.Rptr. 232; Buren v. Midwest Industries, Inc. (Ky. 1964), 380 S.W.2d 96; Aravanis v. Eisenberg (1964), 237 Md. 242, 206 A.2d 148; Meiers v. Fred Koch Brewery (1920), 229 N.Y. 10, 127 N.E. 491; Spencer v. B. P. John Furniture Corp. (1970), 255 Ore. 359, 467 P.2d 429.) Thus, for example, in Meiers a fireman was allowed to recover for injuries suffered when he stepped into a coal pit while fighting a fire on the defendant’s land. The specific act of negligence giving rise to the fireman’s cause of action was the. failure of the defendant to adequately illuminate the hole.

In Dini v. Naiditch, 20 Ill.2d 406, 170 N.E.2d 881, the Illinois Supreme Court specifically adopted the principle enunciated in Meiers and, under the facts and circumstances before it, found the defendants liable. In Dini a fireman, while fighting a fire, was injured when an inadequately constructed wooden stairway collapsed. In addition, it was noted that the defendants “failed to provide fire doors or fire extinguishers, permitted the accumulation of trash and fitter in the corridors, and had benzene stored in close proximity” to the stairway. (Dini at 417.) The court’s holding that the defendants were liable for the injuries suffered by those fighting the fire seems to be predicated upon a combination of factors, i.e. the defendant’s negligent upkeep of the premises in flagrant violation of certain safety ordinances which might have caused the blaze and the collapse of the inherently defective stairway. Thus it is clear that the court did not hold, as plaintiff has asserted, that the sole basis of liability was the negligent creation of a fire hazard.

The adoption by Illinois courts of the majority rule that an injured fireman may not recover from one whose sole connection to the injury is that his negligence caused the fire is more fully illustrated by two appellate court decisions subsequent to Dini. (Netherton v. Arends, 81 Ill.App.2d 391, 225 N.E.2d 143; Horcher v. Guerin, 94 Ill.App.2d 244, 236 N.E.2d 576.) In Horcher an injured fireman raised a contention similar to that of plaintiff. The court, in denying recovery, expressly rejected “the proposition that the landowner may be held liable to a fireman for negligence in causing the fire which brought the fireman to the premises.” (Horcher at 247-248.) Similarly, in Netherton it was held that the negligent creation of a fire risk does not ipso facto impose “liability upon an owner or occupant to a * * * fireman for injuries received in the performance of his duties.” Netherton at 395.

In the case at bar the record reveals that plaintiff, a volunteer fireman, was injured while fighting a fire. The direct cause of his injury was the explosion of a tank car containing propane gas, an eventuality that plaintiff was attempting to prevent at the moment of his injury. The allegations found in plaintiffs complaint relate to acts or omissions of defendants that allegedly either caused the derailment and subsequent fire or merely contributed to the fire’s severity. We therefore find that the court below properly ruled that plaintiff did not plead a cause of action and, consequently, its dismissal of Counts One and Three of his amended complaint is affirmed.

Affirmed,

SULLIVAN, P. J., and BARRETT, J., concur.

       In Count One of his amended complaint, plaintiff alleged that defendant Toledo, Peoria & Western Railroad:
      “was guilty of one or more of the following acts or omissions:
      a. caused or permitted one or more of the railroad tank cars it was hauling to catch fire and explode;
      b. failed to adequately inspect one or more of the railroad tank cars it was hauling, so that an explosion occurred therein;
      c. failed to exercise reasonable care to inspect the friction bearing of a railroad car the defendant was hauling which bearing was in a defective condition, when such condition was discoverable by an ordinarily careful inspection.
      d. failed to exercise reasonable care in assembling its train of cars by coupling together in series 12 tank cars containing liquified propane gas, with the result that upon derailment said cars collapsed one upon another, greatly increasing the severity of the occurrence by allowing flames from the one tank car which had initially ruptured to play upon and heat up other tank cars thereupon increasing the likelihood that other tank cars would become involved in the initial fire and explode;
      e. operated its freight train, including 12 tank cars containing liquified propane gas coupled together in series, at an excessive speed through an urban area, thereby greatly increasing the severity of any fire and/or explosion resulting from a derailment.”
      Count Three of the amended complaint alleged that defendant Burlington Northern, Inc.:
      “a. failed to exercise reasonable care to inspect the friction bearing of the railroad car owned by it, which bearing was in a defective condition but not open or obvious as to such condition, where such condition was discoverable by an ordinarily careful inspection.”
      The court gave plaintiff leave to withdraw Count Two of the complaint alleging willful and wanton conduct on the part of defendant Toledo, Peoria & Western Railroad.


text:
    Robert Rosenberger, Jr., Plaintiff-Appellant, v. Kathleen Rosenberger, n/k/a Kathleen Evans, Defendant-Appellee.
    (No. 59845;
    First District (5th Division)
    July 12, 1974.

      Weiner and Spak (Lawrence Jay Weiner and Joel S. Ostrow, of counsel), for appellant.
    Martin Tuchow, of Chicago (Ellis B. Rosenzweig, of counsel), for appellee.
   Mr. JUSTICE BARRETT

delivered tire opinion of the court:

This appeal arises from three separate judgment orders entered by the trial court. The first order granted defendant’s petition to modify a divorce decree by changing the custody of the divorced couple’s two minor children to defendant. The second order awarded attorney’s fees to defendant for the prosecution of the petition, and the third order granted attorney’s fees to defendant for the purpose of defending the appeal of the first two orders.

On appeal, defendant raises three issues: (1) was the custody award properly changed to suit the best interests of the children involved; (2) was the award of attorney’s fees to defendant-petitioner’s attorney a proper exercise of the court’s discretion; (3) was the allowance of attorney’s fees to defend this appeal a proper exercise of the court’s discretion?

Plaintiff and defendant were married on October 24, 1953, and separated on July 10, 1959. On November 15, 1960, a decree of separate maintenance was granted to Mrs. Rosenberger and she was awarded custody and support for their three children.

On August 16, 1961, a decree of divorce was entered which incorporated a written settlement agreement pursuant to which plaintiff was awarded custody of his three minor children. Defendant was granted visitation rights. The divorce proceedings were heard as a default matter and there was no hearing on the question of custody.

Soon after the divorce, defendant married Ronald Evans, presently an insurance agent. They are still married. Currently, defendant is unemployed and has no source of income. Since the divorce, plaintiff has not remarried. He is employed by Motorola, and his gross income in 1972 was $21,668.30.

For a period of 12 years following the divorce decree, plaintiff maintained custody of his three children. During that time, Robert, the oldest, reached majority. Since the commencement of this action, Diane, the second eldest child, has also reached majority. Currently at issue, therefore, is the custody of the youngest child, Barbara.

Before defendant filed her petition, Barbara lived with her father, sister and brother in Chicago. The two girls shared a bedroom. Testimony showed that Diane was unable to communicate with her father and felt that he did not understand her. Although testimony conflicted, there were indications that Barbara had run away from home 2 years prior to the court proceedings. Robert, the brother, testified that plaintiff was unable to control the girls. Considered in its entirety, the record showed that the relationship between the two girls and their brother was fraught with hostility and antagonism. At one point the trial court stated:

“Let me teU you something that I find here that reaUy bothers me because it relates to this boy and his sisters. I think there is much friction that already exists between the boy and his sisters. I only hope and pray that it wont stay that way and somehow he and his sisters can get right together again. Right now there is very little feeling.”

On April 9, 1973, defendant filed a petition to modify the original divorce decree by changing custody of the two minor daughters, Diane (then age 17) and Barbara (then age 15). The petition stated that it was in the best interests of the minor children to permit and allow them to live with then mother.

At the court hearing on April 9, 1973, the court ordered the girls to return to their fathers home until a further hearing could be held. The girls resisted going with their father and stood crying in open court. The outburst was such as to warrant special notice by the court:

“I want the record to clearly show that there have been some outbursts on both sides and that the girls here are resisting going with the father. They are standing here crying.”

By agreement of the parties, Diane and Barbara moved in to their mother’s home on May 14, 1973. Both girls stated that they desired to live with their mother, and felt that a girl should be with her mother.

The court found that the best interests of the children would be served by changing custody of the two girls to their mother. We agree.

OPINION

On appeal, the first issue raised is whether custody was properly awarded to defendant. Plaintiff argues that the modification of the award was based solely on the custodial preference of the children and is therefore erroneous. Standing alone, wishes and preferences of a child do not warrant or justify a change in custodial provisions. (Elble v. Elble, 100 Ill.App.2d 221, 241 N.E.2d 328.) Defendant, however, argues that custody was properly granted to the parent who could best provide for the best interests of the minor children.

It is well established in Illinois law that a trial court’s determination of what is in the best interests of the child should not be reversed unless it is clearly against the manifest weight of the evidence and it appears that a manifest injustice has occurred. (Holloway v. Holloway, 10 Ill. App.3d 662, 294 N.E.2d 759.) In the instant case, the trial court heard testimony and personally interrogated witnesses in order to determine what, in its own judgment, would best serve the interests of the children.

In its attempt to act in the best interests of the girls, the trial court went to great lengths to ascertain the feelings of the children involved.

“I would like to find out what the feelings of the girls are. And the reason that I am somewhat concerned about having some inkling as to that is because of their ages, seventeen and fifteen.”

In determining the custody of children of divorced parents, the children’s feelings are an element to be given most serious consideration. (Hopwood v. Hopwood, 122 Ill.App.2d 484, 258 N.E.2d 833 (1970).) Where there are no facts to indicate that defendant was not a proper person to have custody of her childen, and the children indicated preference for her, awarding custody to her was proper in the absence of anything to indicate that the best interests of the girls would not be served by giving defendant custody. (Buehler v. Buehler, 373 Ill. 626, 27 N.E.2d 466.) When the trial court awarded custody of the girls to defendant, Barbara was 15. At present, she is 16. No facts appear in this record to indicate that either plaintiff or defendant is an improper person to have custody of the children. It is apparent that at the time it rendered its decision, the trial court thought either party might properly have custody of the children. It is conceded by both parties that the preferences of all the children were consulted. Considering the ages of the children involved, then level of education and maturity, it was not improper for the trial court to attach great weight to the preference of Barbara and Diane. The trial court took into account all relevant factors in its attempt to determine the best interests of the girls, and we do not find sufficient evidence in this record to disturb its findings. All parties were before the trial court and from observation, consultation and testimony, it was in the best position to consider evidence and determine the best interests of the children. We find, therefore, that the trial court’s determination that it was in the best interests of the children to award their custody to defendant was not against the manifest weight of the evidence. Furthermore, we find that the children’s preference was properly considered by the court as a factor in determining their best interests.

The next issue raised by this appeal is whether or not the trial court abused its discretion by awarding fees to defendant-petitioner. It is well established in Illinois that allowance of attorney’s fees rests within the sound discretion of the trial court and will not be set aside in the absence of a clear showing of abuse. (Booth v. Booth, 6 Ill.App.3d 62, 284 N.E.2d 506.) The award of fees to defendant was, in our opinion, within the sound discretion of the court and we perceive no abuse therein. No question of plaintiffs ability to pay or defendant’s inability to afford the entire burden of these proceedings was raised. It was proper for the court to require plaintiff to pay defendant’s attorney’s fees.

Finally, plaintiff contends that allowance of attorney’s fees to defendant for purposes of defending this appeal was error, Plaintiff cites as the basis for his contention section 16 of the Divorce Act:

“In case of appeal by the husband or wife, the court in which the decree or order is rendered may grant and enforce the payment of such money for her or his defense # # (Ill. Rev. Stat. 1973, ch. 40, par. 16.)

Plaintiff argues that this portion of the Divorce Act applies only to an appeal from the original action for divorce and not to an appeal from a post-decree order as in the instant action. Horwitz v. Horwitz, 130 Ill.App.2d 424, 264 N.E.2d 723.

With respect to allowance of attorney’s fees for defending an appeal, Horwitz has been overruled by Waltrip v. Waltrip, 3 Ill.App.3d 892, 279 N.E.2d 405. The court held that section 16 of the Divorce Act does not specifically limit the allowance of attorney’s fees for defense of an appeal to an appeal from the divorce decree itself. The court stated at page 897:

“Had the legislature intended to restrict the allowance of attorney’s fees to the defense of an original decree, it could have so stated, but we believe the language used by the legislature in providing fees for defense of an appeal indicates that the legislature contemplated that such fees could be awarded on post-decretal orders as well.” Waltrip v. Waltrip, 3 Ill.App.3d 892, 897, 279 N.E. 2d 405.

In the instant case, no question is raised as to the amount of the fee allowed, the ability of plaintiff to pay the fee or defendant’s inability to bear the burden of defending the order granting her custody of her daughter. Defendant had no choice but to defend this appeal of the custody award and the trial court acted well within its discretion in awarding fees to help defendant bear the burden of the appellate expense.

For the reasons stated above, we affirm the finding of the trial court that the custody award of Barbara Rosenberger to defendant was made pursuant to the best interests of the minor child. We further hold that the award of attorney’s fees for conducting the proceedings be sustained and that the award of attorney’s fees to defend this appeal be affirmed.

Affirmed.

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


author: Mr. PRESIDING JUSTICE EGAN Mr. JUSTICE HALLETT

text:
    Dee Ann Loehr, Plaintiff, v. Illinois Bell Telephone Company et al., Defendants—(Illinois Bell Telephone Company, Counterplaintiff-Appellant, v. M. Weil & Sons, Inc., Counterdefendant-Appellee.)
    (No. 58649;
    First District (1st Division)
    July 15, 1974.

      HALLETT, J., specially concurring.
    Donald H. Sharp, L. Bow Pritchett, Edward Butts, and Richard G. Siegel, all of Chicago, for appellant.
    John J. Reidy, of Chicago, for appellee.
   Mr. PRESIDING JUSTICE EGAN

delivered the opinion of the court:

The plaintiff, Dee Ann Loehr, sued to recover damages for personal injuries sustained due to the negligence of the defendants, Illinois Bell Telephone Company (Illinois Bell) and M. Weil & Sons, Inc. (Weil). Each defendant filed an answer to the complaint, and Illinois Bell filed a counterclaim for indemnity against Weil alleging that any negligence of Illinois Bell was passive and that of Weil was active. The court entered an order on November 21, 1972, sustaining Weil’s motion to dismiss the counterclaim with prejudice. In its order the court made the appropriate finding rendering the order appealable. The only issue is whether the third-party complaint alleged a cause of action for common-law indemnity.

The complaint by Loehr alleged that Illinois Bell “negligently and carelessly loaded tree branches and debris on its truck so that it fell” into the street in the path of Loehr’s automobile causing her to make a sudden stop. It further alleged that Weil negligently operated a vehicle “too fast for conditions,” failed to maintain a proper lookout and followed the plaintiff’s vehicle too close. The counterclaim of Illinois Bell attached a copy of the Loehr complaint and alleged that if Illinois Bell was found guilty of negligence as alleged in the complaint its negligence was “merely passive in that the only negligence alleged here is permitting a certain twig or stick to fall to the pavement in front of plaintiff’s vehicle, which twig or stick did not even come in contact with the plaintiff’s vehicle.”

Illinois Bell’s first contention is that it was error to dismiss the complaint on motion, arguing that evidence was required to determine the type of negligence the defendants had committed. The same argument has been discussed in other appellate court cases with inconsistent results. Cases which reversed orders dismissing third-party complaints include Mullins v. Crystal Lake Park District, 129 Ill.App.2d 228, 262 N.E.2d 622, Mierzejwski v. Stronczek, 100 Ill.App.2d 68, 241 N.E.2d 573, Sargent v. Interstate Bakeries, Inc., 86 Ill.App.2d 187, 229 N.E.2d 769, Trzos v. Berman Leasing Co., 86 Ill.App.2d 176, 229 N.E.2d 787, and Blaszak v. Union Tank Car Co., 37 Ill.App.2d 12, 184 N.E.2d 808. Others have upheld dismissals on the pleadings: Burke v. Skyclimber (Sup.Ct. No. 46160, filed July 1, 1974); Lindner v. Kelso Burnett Electric Co., 133 Ill.App.2d 305, 273 N.E.2d 196; Gillette v. Todd, 106 Ill.App.2d 287, 245 N.E.2d 923. With the exception of the Mullins case, all of those reversing dismissals preceded the case of Muhlbauer v. Kruzel, 39 Ill.2d 226, 234 N.E.2d 790. The Muhlbauer court took note of those cases, including some cited by Illinois Bell here, which upheld complaints “[bjecause a plaintiff may amend his complaint, even after trial, to conform the pleadings to the proof.” (The Mullins court took the position that Muhlbauer cited the cases “without disapproval.” In Moody v. Chicago Transit Authority, 17 Ill.App.3d 113, 307 N.E.2d 789, the specially concurring opinion concluded that Muhlbauer had overruled them by implication.) Nonetheless, the Muhlbauer court upheld the dismissal of a complaint saying:

. “We recognize that the policy of section 25(2) can be frustrated by a rigid and formal approach to the pleadings; nevertheless, a third-party complaint must disclose some relationship upon which a duty to indemnify may be predicated.” 39 Ill.2d at 231-32.

Illinois Bell argues here, as apparently the third-party plaintiff in Muhlbauer did, that complaints may be amended to conform to the proof; and “the evidence may show that Illinois Bell did not load the branches but merely failed to inspect the branches loaded by someone else, or it may show that the branches were properly loaded but that a branch unexpectedly broke off from a larger branch.” It would appear that if the latter hypothesis suggested by Illinois Bell is supported by the evidence, there would be nothing for which to indemnify it because it would be found not guilty. But we are sure other factual situations could be supplied by conjecture by Illinois Bell to support a complaint for indemnity.

The Muhlbauer opinion pointed out that the purpose of section 25(2) of the Civil Practice Act was “to save the time and cost of a reduplication of evidence, to obtain consistent results from identical or similar evidence, and to do away with the serious handicap to a defendant of a time difference between a judgment against him, and a judgment in his favor against the third-party defendant.” Judicial economy and the right of a defendant after a judgment against him to a speedy resolution of his action over are laudable purposes; but they are not endalls to be slavishly served while ignoring or discarding time-honored rules of pleading. If the facts alleged do not state a cause of action, a complaint should be dismissed, and it is no answer to say that facts other than those alleged might be shown that would support an amended complaint. Further, there is no absolute requirement that an action over must be heard at the same time as the original complaint. (Gertz v. Campbell, 55 Ill.2d 84, 302 N.E.2d 40; Williams v. Brown Manufacturing Co., Inc., 93 Ill.App.2d 334, 236 N.E.2d 125, reversed on other grounds, 45 Ill.2d 418, 261 N.E.2d 305; Wiegel v. One La Salle Co., 75 Ill.App.2d 272, 221 N.E.2d 117.) Thus, since both Illinois Bell and Weil are co-defendants, any finding against Illinois Bell would be res judicata as to Weil; and if Illinois Bell then wished to file an appropriate third-party complaint against Weil, it could still do so. We therefore judge that if the complaint does not allege facts showing a cause of action for indemnity it should be dismissed; and we reject the argument that a dismissal should be denied because some other facts might be alleged later in an amended complaint.

Since Reynolds v. Illinois Bell Telephone Co., 51 Ill.App.2d 334, 201 N.E.2d 322, it has been recognized that one tortfeasor may be indemnified by a joint tortfeasor even though no pre-accident or derivative liability relationship existed between them. The rule is qualified, however, to the extent that their negligence must be different. The terms used to describe the difference, primary-secondary or active-passive, are subject to the criticism of being somewhat imprecise. (See Sorensen, Focus on Indemnification Based Upon Fault, 55 Illl. B.J. 206 (1966); Carver v. Grossman, 55 Ill.2d 507, 511, 305 N.E.2d 161.) Be that as it may, the defendant’s complaint asserts that its negligence was “passive,” and it is conceded by both sides here that the difference must be qualitative, rather than quantitative.

This case boils down to whether the complaint against Illinois Bell alleges an act of passive negligence. We conclude that it does not. The act alleged was an affirmative one, negligently loading tree branches on the truck so that one fell into the street. The defendant points out that no contact was made between the branch that fell into the highway and the plaintiffs car. But that fact is not significant because it is the quality of the negligent act, and not its result, that controls. Would the defendant contend that if a branch fell directly on a pedestrian its negligence was active, but if the pedestrian was struck by another automobile as he sought to avoid the falling branch, the negligence was passive?

In Stewart v. Mister Softee of Illinois, Inc., 75 Ill.App.2d 328, 221 N.E.2d 11, a complaint alleged that the defendant had parked an ice cream truck with its chimes sounding. A child crossing the street to purchase ice cream was struck by another car and killed. The appellate court held in upholding the dismissal of the third-party complaint that by double-parking and sounding the chimes the defendants were guilty of active negligence. In Carver v. Grossman, 55 Ill.2d 507, 305 N.E.2d 161, the plaintiff was injured when a car he was working on was started by the defendant while the transmission was in gear. The third-party defendant had left the car in gear and failed to block the car from moving forward while the plaintiff was working on it. The supreme court held as a matter of law that the defendant was not entitled to indemnity because his act of starting the car was not qualitatively different from that of the third-party defendant. In Moody v. Chicago Transit Authority, 17 Ill.App.3d 113, 307 N.E.2d 789, the defendant’s act of parking at an angle at a bus stop area was determined to be active negligence as a matter of law. We judge that the alleged act here on the part of Illinois Bell is as “active,” if not more so, than that aHeged in Stewart or proved in Carver and Moody. Therefore, the complaint failed to state a cause of action and was properly dismissed. The order is affirmed.

Order affirmed.

GOLDBERG, J., concurs.

Mr. JUSTICE HALLETT

speciaHy concurring:

While I fuUy concur in the foregoing opinion holding that indemnity is barred because both were “actively” negligent, I would affirm the dismissal even had Illinois Bell not been “actively” negligent. See my specially concurring opinion in Moody v. Chicago Transit Authority, 17 Ill.App.3d 113, 307 N.E.2d 789.


author: Mr. JUSTICE GOLDBERG

text:
    Bresler Ice Cream Company, Petitioner, v. The Pollution Control Board et al., Respondents.
    (No. 59807;
    First District (1st Division)
    July 15, 1974.
    Kirshbaum and Kroll, of Chicago (Barry L. Kroll, of counsel), for petitioner.
    William J. Scott, Attorney General, of Chicago (Richard W. Cosby, Assistant Attorney General, of counsel), for respondents.
   Mr. JUSTICE GOLDBERG

delivered the opinion of the court:

The Illinois Environmental Protection Agency (Agency) filed a complaint with the Pollution Control Board (Board) against Bresler Ice Cream Company (Bresler) charging operation of an incinerator which caused a violation of the Environmental Protection Act. (Ill. Rev. Stat. 1973, ch. 111%, par. 1001 and following.) After a hearing, the Board filed a written opinion and order. The opinion found that operation of the incinerator, although terminated prior to the filing of the complaint, was a violation of the Act. Bresler was ordered to cease and desist from the violations, to refrain from operating the incinerator without prior Board approval and to pay a fine of $1500. A motion by Bresler for reconsideration was denied by the Board. Bresler appeals directly to this court. Ill. Rev. Stat. 1973, ch. 111½, par. 1041.

Bresler contends that the facts presented to the Board failed to support a finding of guilt of the violation charged; the record fails to sustain the imposition of a monetary fine and the fine was excessive and an abuse of discretion by the Board. The Board responds that it properly found Bresler had violated the Act and the penalty accordingly imposed was reasonable.

No witnesses were heard by the Board. Instead, the parties, both represented by counsel, worked out a written stipulation which was duly executed by the attorneys and presented before the hearing officer. Both parties, by their attorneys, advised the hearing officer that the stipulation was sufficient. No additional matters were put into the record other than a statement by counsel for Bresler that the complaint was not filed until April of 1973 which was after Bresler had voluntarily and unilaterally terminated its use of the incinerator.

The parties stipulated that Bresler operated an incinerator at its plant in Chicago, on July 1, 1970 (effective date of the Act) until on or about January 20, 1973. As a direct and proximate result of that operation there were emissions of contaminants. The Agency received “numerous complaints” regarding this from persons residing in the vicinity of the plant. These “complaints related primarily to the escape of fly ash and odors from the incinerator and their subsequent settling on the premises of the persons complaining.” During this time, and apparently without knowledge of any complaints, Bresler attempted to remedy the situation and “consulted with experts and expended sums of money in an effort to eliminate or reduce the emissions of such contaminants from its incinerator.”

The parties further stipulated:

“The emission of said contaminants constituted air pollution as defined in Section 3(b) of the Environmental Protection Act, Ill. Rev. Stat., Ch. 111½, § 1003(b), 1971, in that the contaminants caused by said incinerator which existed in the atmosphere were in sufficient quantities and of such characteristics and duration as to unreasonably interfere with the enjoyment of life or property of those persons making complaints.”

They also stipulated that in January of 1973, Bresler realized that its efforts to modify the “incinerator were unavailing, and unilaterally determined to terminate its use of said incinerator.” As a result, the incinerator has not been operated since January 20, 1973, “and will not, at any time, be operated in the future.” The incinerator was thus rendered inoperable by Bresler close to 3 months prior to the filing of the complaint. The parties agreed that the Board should enter an order preventing operation of the incinerator at any time in the future, “and for any other relief that the Pollution Control Board may deem proper under the circumstances.”

On September 13, 1973, the Board filed an opinion and order. Upon review of the stipulation, it found that Bresler had been in violation of the Act for a period of 3 years. The Board ordered that Bresler cease and desist from the violations, refrain from operating tire incinerator without prior Agency approval and pay a fine of $1500. Bresler made a written motion for reconsideration. It set forth that the Board had misconstrued the stipulation which was not intended to cover matters of law but only facts; that the Board had misread and thus misinterpreted the provisions of the stipulation. Bresler also took the position that the fine was excessive and unwarranted. A written response to this motion was filed by the Agency. The Board then entered another order which found no legal merit in the motion for reconsideration and which confirmed its previous opinion and order.

Although Bresler made no motion or request of any kind for withdrawal of the stipulation, it has proceeded in this court to attack the sufficiency thereof. However, under our view of this case, as hereinafter stated, we find it unnecessary to consider the details raised concerning the stipulation and we will proceed to Bresler’s argument concerning imposition of the fine.

As above stated, Bresler attempted to eliminate the emissions from the incinerator by consultation with experts and the expenditure of money. These efforts were undertaken although there is no evidence in the record to indicate that any complaint or demand was ever brought to the attention of Bresler with reference to the operation of the incinerator. The stipulation also shows that Bresler unilaterally and completely terminated its use of the incinerator. Bresler further showed good faith by its agreement in the stipulation that the incinerator would not “at any time, be operated again in the future.”

Thus, any and all violations were voluntarily abated by Bresler close to 3 months prior to the filing of the complaint and more than 6 months prior to the hearing before the Board. Furthermore, the violations were all de minimis. The Agency agreed that the statement in Bresler’s motion for reconsideration that, “The fly ash and odors were not injurious to the health of persons living in the vicinity” was essentially correct. Rather than demonstrating an attitude of defiance or recalcitrance, these facts evince a sincere desire on the part of Bresler to cooperate with the Board in achieving the statutory objectives expressed in the Environmental Protection Act. (Ill. Rev. Stat. 1971, ch. 111½, par. 1008.) This attitude should have been noted and encouraged by the Board. The orders of the Board regarding future abatement of the violation impose the only sanction necessary and reasonable under all the circumstances here disclosed.

It is true, as contended by the Board, that violators of the Act have been held to have the burden of proof as regards mitigating circumstances. (Ford v. Environmental Protection Agency, 9 Ill.App.3d 711, 292, N.E.2d 540.) We note that the decision in Ford has been criticized in Mystik Tape v. Pollution Control Board, 16 Ill.App.3d 778, 800, 801, 306 N.E.2d 574. At this writing, the Supreme Court of Illinois has allowed a petition for leave to appeal in Mystik. (Docket No. 46543, May Term, 1974.) Actually, this apparent conflict has no bearing upon the case before us because here all of the material facts appear directly from the stipulation. None of these facts convince us that the imposition of a fine was required or proper in this case. We find no issue in this record regarding burden of proof.

Furthermore, in our opinion, the imposition of a fine by an administrative agency must be supported by some reasonable factor appearing in the record. (Central Illinois Light Co. v. Pollution Control Board, 17 Ill.App.3d 699, 702, 308 N.E.2d 153.) Our supreme court, in an exhaustive opinion, has recently upheld the legal power of the Board to assess fines against violators. (City of Waukegan v. Pollution Control Board, 57 Ill.2d 170, 311 N.E.2d 146.) However, the court specifically recognized that the power of the administrative agency must be subjected to adequate judicial review.

In order for significant judicial review to be had, there must be some basis in the record to demonstrate the rationale for imposition of the fine. In the case before us, we find only a bare statement by the Board that a penalty will be assessed because Bresler was in violation of the Act for a period of approximately 3 years. In view of the minimal nature of this violation, and after due consideration of the conduct and steps taken by Bresler in connection therewith, we have concluded that the imposition of a fine in this case is inequitable and unjust. By way of precedent, we note that in Ford v. Environmental Protection Agency, 9 Ill.App.3d 711, 719, 720, 292 N.E.2d 540, the violator dumped solid refuse, the condition of the site required correction, there was no evidence of such correction before filing of the complaint and the Board found that continued violation would create a health hazard. Despite a far more serious situation than that now before us, the Board there imposed, and the court affirmed, a fine of $1000.

In view of the above which, in effect, has granted Bresler the relief which it sought from a portion of the order appealed from, we will not consider its initial contention concerning the details of the assailed portion of the stipulation. It is sufficient to state that upon careful review of the entire record it is apparent from the stipulation that Bresler conceded, properly, that the remaining relief granted by the Board was based upon sound legal grounds. Accordingly, the order entered by the Board is affirmed except that it is modified by striking therefrom the imposition of the fine.

Order affirmed as modified.

BURKE and HALLETT, JJ., concur.