author: Mr. PRESIDING JUSTICE McNAMARA.

text:
    Charles Domaika, Plaintiff-Appellant, v. Board of Fire & Police Commissioners of the Village of Oak Lawn et al., Defendants-Appellees.
    (No. 59361;
    First District (3rd Division)
    June 6, 1974.
    Stanley H. Jakala, of Berwyn, for appellant.
    Ralph L. Rehnquist, Joseph J. Kozlowski, and John A. Smith, all of Chicago, for appellees.
   Opinion by

Mr. PRESIDING JUSTICE McNAMARA.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Nathaniel C. Reed Builders, Inc., Plaintiff-Appellee, v. Morton R. Cohen, Defendant-Appellant.
    (No. 59484;
    First District (3rd Division)
    June 6, 1974.
   PER CURIAM.

MEJDA, J., took no part.

Marvin G. Freeman, of Freeman, Freeman & Atkins, of Chicago, for appellant.

Robert A. Eiden, of Mehlman, Spitzer, Addis, Ticho, Susman, Randall, Horn and Pyes, of Chicago, for appellee.


author: Mr. JUSTICE LORENZ

text:
    Jacob Feldman et al., Plaintiffs-Appellants, v. Oman Associates, Inc. et al., Defendants-Appellees.
    (No. 56919;
    First District (5th Division)
    June 7, 1974.
    Jerome Feldman, of Chicago, for appellants.
    Gaines, Boyer & Shepp, of Chicago (Eugene L. Shepp, of counsel), for appellees.
   Mr. JUSTICE LORENZ

delivered the opinion of the court:

Plaintiffs appeal from a judgment entered in favor of defendants. In their complaint plaintiffs sought to recover $3,750 deposited as earnest money under an agreement to purchase real estate. They contend that the trial court erred: (1) by failing to declare the contract a nullity; (2) by considering the contract a binding agreement; (3) by permitting letters from plaintiffs’ and defendants’ counsel to modify the real estate agreement; and (4) by failing to construe the agreement most strongly against its authors, the defendants.

The following evidence pertinent to this appeal was adduced. On August 11, 1970, plaintiffs signed an “Offer to Purchase Real Estate” for a home located at 9326 N. Kildare Ave., Skokie, Illinois, and deposited $3,750 as earnest money with defendant Oman Associates, Inc., a broker for the transaction. This money was then deposited in an escrow account with defendant Eugene Matanky and Associates. Defendant-sellers Morris and Evelyn Levin, accepted the offer on August 12, 1970.

Paragraph (4) of the offer provided:

“4. This offer is contingent upon Purchaser securing within 20 days of acceptance hereof by owner of said property a mortgage loan commitment for $27,500.00 with interest at not more than 7.9% per annum to be amortized over 25 years and loan costs not to exceed 2M> plus appraisal and credit report fee, if any. If Purchaser does not obtain such commitment, Purchaser shall notify Seller in writing within said number of days. If Seller is not notified it shall be conclusively presumed that purchaser has secured such commitment or will purchase said property without mortgage financing. If Seller is so notified, Seller and broker may, within an equal number of additional days, secure a mortgage commitment for Purchaser upon the same terms. In such event Purchaser shall furnish to broker all requested credit information and sign customary papers relating to the application and securing of such commitment. If Purchaser notifies Seller as above provided, and neither Purchaser, Seller, nor broker secure such commitment as above provided, this agreement shall be null and void and all earnest money shall be returned to the Purchaser and Seller shall not be hable for any sales commission.”

Paragraph (3) required sellers to show purchasers marketable title at least 5 days prior to closing. No closing date was set out in the agreement.

On September 5, 1970, following an application for mortgage financing previously made with Cook County Federal Savings and Loan Association, plaintiffs executed a promissory note and mortgage to the Association. Five days later, the Chicago Title and Trust Company issued its commitment for title insurance. On September 20, 1970, plaintiffs notified Oman Associates, Inc. that their application had been “refused” 2 days earlier and that, therefore, they were giving defendants this notice pursuant to the August 12, 1970 agreement. The Levins replied that plaintiffs’ notification had not been timely, that they now presumed the contract was going forward and that the proper documents would be tendered within the next few days. After receiving this reply, plaintiffs notified defendants that plaintiffs viewed the contract as null and void due to their inability to obtain financing and therefore demanded the return of the earnest money. Plaintiffs filed suit when defendants failed to return the earnest money. The trial court entered an order denying recovery from which order plaintiffs appeal.

OPINION

Plaintiffs contend that the contract is unfair in that it was never the parties intent that the sale be completed other than by financing. The contract provides, in pertinent part, that the purchasers’ offer is contingent upon their ability to secure a loan within 20 days of sellers’ acceptance and that the purchasers’ failure to give sellers timely notice raises a conclusive presumption that a loan had been seemed or that the pmchase would be for cash.

Here, the purchasers did not give notice of their inability to obtain financing until September 20, 1970, 39 days after the contract had been accepted and, under the precise language of the contract, 19 days after the conclusive presumption was raised that, financing had been obtained or was unnecessary. Defendants promptly notified plaintiffs of this fact. The language in the contract and the reaction of defendants therefore disputes plaintiffs’ claim that the parties really intended plaintiffs to obtain financing in order to consummate the deal. Even if obtaining financing was essential, and, we note, there is nothing to substantiate this allegation, plaintiffs’ position runs contrary to the parol evidence rule in attempting to have the parties alleged intent alter a written contract. Erzinger v. Gerrity, 271 Ill.App. 450.

Plaintiffs next contend that their failure to obtain a mortgage loan was a failure of the condition precedent to the contract’s validity and thus requires the return of the earnest money. They do not view the 20-day notification period with which they failed to comply as an essential provision of the contract. Even if we accepted this view there are at least two flaws in this argument. First, the only indication that the mortgage loan was refused is the assertion in plaintiffs’ letter of September 20 to defendants that the loan had been denied on September 18, 1970. On the other hand, the record discloses that a promissory note and mortgage were executed by plaintiffs and that Chicago Title and Trust Company had given their commitment for title insurance on the property. Thus, there is a question whether the condition precedent did in fact fail. Secondly, the condition precedent in the real estate contract contains an alternative condition precedent allowing the seller and broker a period of 20 days in which to obtain financing for plaintiffs if notified by purchasers within the first 20 days. Plaintiffs’ letter of September 26, 1970, declaring the contract null and void and demanding the return of the earnest money, was a willful breach of the contract in that their declaration of intent to immediately sue prohibited the operation of the alternate condition. Plaintiffs argue, however, that the trial court erred in considering this letter and those of September 20 and September 22 because they violate the parol evidence rule. No objections were raised in the trial court to the admission of these letters. In fact, the September 26 letter was placed into evidence by plaintiffs. Their objections were therefore deemed waived. Baker v. Fawcett, 69 Ill.App. 300.

Plaintiffs argue that if defendants were convinced that the contract was valid and still in effect then defendants had the duty to present evidence of marketable title as required under paragraph (3). Where there is no evidence to dispute the readiness and willingness of the sellers to perform, and when the purchasers flatly decline to proceed with the contract, the tender of marketable title becomes unnecessary. (Vulcan Corp. v. Cobden Machine Works, 336 Ill.App. 394, 84 N.E.2d 173; Lang v. Hedenberg, 277 Ill. 368, 115 N.E. 566; 92 G.J.S. Vendor & Purchaser § 229c (1).) Defendants’ ability and desire to enforce the contract was indicated by their September 22 letter. It is clear from plaintiffs’ letter on September 26 that they no longer were willing to go forward with the contract. Under these circumstances, plaintiffs’ demand for the return of the earnest money and their threat of suit made it unnecessary for defendants to tender marketable title. Furthermore, marketable title did not need to be furnished until 5 days prior to the closing date, which date never was specified in the agreement and thus never due.

Finally, plaintiffs contend that the contract is ambiguous and must therefore be construed against its authors, the defendants. Plaintiffs have not called to our attention any particular provision which displays any ambiguity and our own reading of the document has not disclosed any potential ambiguity in its terms. We, therefore, find this contention without merit.

Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

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


author: Mr. JUSTICE DRUCKER

text:
    Giovanna Mulvihill, Plaintiff-Appellant, v. Thomas N. Mulvihill, Defendant-Appellee.
    (No. 58001;
    First District (5th Division)
    June 7, 1974.
    John R. Polk, of Chicago (George D. Karcazes and John T. Duax, of counsel), for appellant.
    James B. Pritikin and Sudak, Grubman, Rosenthal & Feldman, both of Chicago, for appellee.
   Mr. JUSTICE DRUCKER

delivered the opinion of the court:

On September, 1, 1971, plaintiff filed a complaint for divorce alleging that defendant had been guilty of habitual drunkenness. On October 26, 1971, defendant filed a counter-complaint for divorce alleging that plaintiff had been guilty of adultery. Both parties sought custody of the four minor children. On June 9, 1972, after a trial, the court granted a decree of divorce on defendant’s counter-complaint, awarded custody of the four children to defendant and dismissed plaintiff’s complaint for want of equity. Plaintiff only appeals from that portion of the judgment giving custody to the defendant and denying her child support.

On appeal plaintiff’s sole contention is that the award of custody to defendant is contrary to the law of Illinois and is against the manifest weight of the evidence.

Plaintiff and defendant were married in Chicago, Illinois, on May 4, 1957. During their marriage the parties had four children: Michael, born on October 15, 1958; Thomas, born on July 18, 1961; Mary, born on December 8, 1962; and Patrick, bom on December 6, 1965. The parties ceased living together as husband and wife in September 1969 although they continued to reside in the same home.

The following pertinent evidence was also adduced: Defendant was called as a witness pursuant to section 60 of the Civil Practice Act and testified that he was a moderate drinker, consuming on the average nine cans of beer per week. He has taken the children to the doctor and when Michael was in the hospital, he visited him. Although prior to September 1969 he was generally satisfied with her supervision of the children, thereafter he became dissatisfied with his wife’s care of the children. She was never a good housekeeper. He felt plaintiff kept a sloppy house with dishes stacked on the counter. It would take plaintiff a whole week to do a week’s laundry, and she was never at home. When home, she spent 90 percent of her time on the telephone. Plaintiff physically abused the children, and he once saw plaintiff beat Tommy’s arm with a wooden ladle, leaving the arm pretty red. In September 1969 plaintiff refused to have sexual relations with him. He had plaintiff followed and determined that plaintiff committed adultery with one James Johnson. This adultera ous conduct never took place at home or in the presence of the children.

Plaintiff testified on her own behalf: Defendant drank 3 to 5 times a week, and he would consume 25 to 30 cans of beer at one time and would become very drunk. He would frequent taverns two or three times a week. He never helped her with the children and never complained about her care of the children. She was an assistant den mother and a Scout leader. Defendant would treat the children with indifference, and she felt they were afraid of him. He has been promoted in his work and she did not know if he missed any work. She ceased having sexual relations with him because “I don’t like him; I do not love him; ” * * why should I sleep with him?” She never told him this reasoning.

In August 1971 she was arrested for battery. At this time she was trying to move out of the house. She chased Michael as he was running away from her and towards the house where defendant was inside. She had not told defendant what she was going to do. She had been under psychiatric care, but this had stopped approximately 4 weeks prior to trial. She explained that this was for marriage counseling.

During cross-examination it was brought out that plaintiff knew James Johnson. She admitted to having sexual intercourse with Johnson on at least 20 occasions. Plaintiff first met Johnson in 1967. She also admitted she was carrying on the adulterous relationship prior to the time when plaintiff and defendant bought a home and moved to Buffalo Grove, Illinois. Generally she would meet with Johnson during the evenings, but she never stayed out all night. She would usually stay out between 7 and 12 in the evening. While she was with Johnson, defendant would be at home with the children. Plaintiff stated that during these times defendant would not be caring for the children, “The children are old enough to care for themselves. Mr. Mulvihill does not care for them.” Plaintiff later, denied that the children are old enough to care for themselves. Defendant’s mother has also stayed with the children.

Several other witnesses, including plaintiff’s sister, testified for plaintiff, and other testimony was admitted by stipulation of the parties, including plaintiff’s other sister and several neighbors. These witnesses generally characterized plaintiff as a good mother and a person fit to have custody of the children. They corroborated plaintiff in her participation in school activities with her children, and that she was a den mother and Brownie leader. On cross-examination when defendant’s counsel informed these witnesses of plaintiff’s admitted adultery and her numerous absences from the house during the evening hours, these witnesses responded that this would not change their opinion as to plaintiff being a fit person to have custody or being a good mother. Further, they would not judge someone else’s morals. Jo Ann Rathjen, a neighbor, testified for plaintiff. She repeated much of the previous testimony given by the other witnesses and additionally stated that she saw defendant drunk several times during the year, and that his children were present.

Defendant called to the stand a private investigator who witnessed many of the illicit meetings between plaintiff and Johnson. Lawrence Belmont, a co-worker of defendant, testified that he had known defendant for 1 year, and they share the same office. He also sees defendant socially and has never seen defendant drunk; he has seen defendant with his children, and defendant loves them. He felt the children love their father. Defendant coaches football and Little League baseball.

Randall Rathjen testified as a witness for defendant that he is a neighbor of the Mulvihills. He has never seen defendant drunk. He has seen plaintiff leave in the evenings and return around 11:30 or 12. Defendant is a good father. On cross-examination he admitted that the plaintiff baby-sat for his children. Defendant’s mother testified that she sees her grandchildren every month, and if defendant got custody she would move into defendant’s home and care for the children. On cross-examination it was brought out that she felt plaintiff loved the children. She felt that over the last few years plaintiff was not fit to have custody because of her frequent absences from the home and the large amount of time she spent on the telephone.

Finally, Michael Mulvihill, the parties’ oldest child, took the stand on behalf of the defendant. At plaintiff’s request Michael was interviewed by the trial judge in chambers. The trial judge then stated into the record that Michael has indicated without hesitation that he “* * * would prefer to be with his father. He feels that the other brothers and sisters ought to be with the father. In substance the reason for that was that he feels that the mother is extremely temperamental and uses excessive punishment. Beyond and above everything else she would leave the family residence repeatedly in the evening without any explanation. The children would not see the mother much in the evening.”

OPINION

Plaintiff argues that it was against the manifest weight of the evidence to award custody of the four children to defendant. She contends that in Illinois the cases have enunciated a judicial preference for the mother when determining custody of children of tender years. Relying on this preference, she avers that the evidence demonstrates her to be a fit person to have custody, and that the court erroneously gave custody to defendant solely because of the fact of her adultery. She asserts that her adulterous conduct was not alone sufficient to deprive her of custody.

In cases where the custody of the children is involved, the overriding consideration must be and is the best interests and welfare of the children. (Cohn v. Scott, 231 Ill. 556, 83 N.E. 191.) A court when making a determination as to the childrens best interests must weigh a variety of factors. Undoubtedly, as plaintiff argues, an infant of tender years may benefit more by being placed in the custody of its mother rather than with its father. (Draper v. Draper, 68 Ill. 17.) The children at the time of the decree were 13½, 11, 9½ and 6½ years old and are now 2 years older. Whether their age and maturity were such as would bring this preference into operation was for the trial court to decide. Yet, even if invoked, this is just one factor among many which a court must look at when viewing the totality of the evidence presented.

The trial court in divorce proceedings is vested with a broad discretion in determining the custody of minor children. (Wolfrum v. Wolfrum, 5 Ill.App.2d 471, 126 N.E.2d 34.) “He has an opportunity to see the witnesses, test their credibility or want of credibility * ” *” (Landrey v. Landrey, 13 Ill.App.2d 202, 204, 141 N.E.2d 405) and is far better able than this court to predict which parent will best care for the children in the future. Therefore, we will not reverse the findings of the lower court unless they are against the manifest weight of the evidence. Carlson v. Carlson, 80 Ill.App.2d 251, 225 N.E.2d 130.

The court had before it evidence of plaintiff’s admitted adulterous conduct. Both parties agree that the moral climate in which children are to be raised is a valid consideration for the court to evaluate. Certainly plaintiff’s adultery is a reflection on her moral values. Assuming, as plaintiff argues, that her prior conduct should be condoned, we believe that many of the authorities cited by plaintiff are distinguishable in that the record here reflects no evidence from which we could infer that plaintiff’s conduct in the future will improve. (Wolfrum.) The court, following the procedure laid down in Oakes v. Oakes, 45 Ill.App. 2d 387, 195 N.E.2d 840, interviewed the oldest child in chambers and then placed into the record the child’s preference for his father and his reasons for making the preference. This also was a factor to be considered. Corcoran v. Corcoran, 79 Ill.App.2d 328, 224 N.E.2d 611.

The evidence also supported a conclusion that plaintiff was frequently absent from the home and her children during the evening hours; that she was somewhat untidy in the upkeep of her household; and that on one occasion she hit her child with a wooden ladle leaving his arm pretty red. There was also evidence showing the preparations defendant had made in the event he received custody which included the fact that his mother would move in to assist him. The court found that the best interests of the children would be served by giving custody to defendant, and we feel that there was evidence to support such a determination. Under such circumstances we will not reverse the trial court who had a superior opportunity to view all aspects of the evidence. The judgment is affirmed.

Affirmed.

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

       The court found in pertinent part:
      “6. That the Plaintiff Counter-Defendant, GIOVANNA MULVIHILL, on the other hand, disregarding her marital vows and obligations, has been guilty of adultery on numerous occasions, all without cause or provocation on the part of the Defendant Counter-Plaintiff.
      7. That in pursuing this adulterous conduct, the Plaintiff Counter-Defendant has been frequently absent from the marital home and not properly attendant to the needs of the minor children.
      8. That the Defendant Counter-Plaintiff, THOMAS N. MULVIHILL, is a fit and proper person to have the care, custody, control, maintenance and education of the parties’ minor children.
      9. That it is in the best interests of the said minor children of the parties that custody of said minor children be awarded to the Defendant Counter-Plaintiff, THOMAS MULVIHILL.”


author: Mr. PRESIDING JUSTICE SULLIVAN

text:
    Alice Tuey, Plaintiff-Appellee, v. Martin C. Tuey, Defendant-Appellant.
    (No. 59016;
    First District (5th Division)
    June 7, 1974.

      Mathew K. Szygowski, of Bianco & Szygowski, of Chicago, for appellant.
    Rinella and Rinella, of Chicago (Owen L. Doss, of counsel), for appellee.
   Mr. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court:

This is a post-divorce decree proceeding and involves (1) an appeal from the denial of termination of alimony, pursuant to defendant’s petition requesting modification of a divorce decree; and (2) a cross-appeal by plaintiff from the granting of a reduction in alimony, pursuant to the same petition and from the denial of plaintiff’s petition for attorney’s fees.

The parties were married in 1940 and divorced by a decree entered in July, 1965. There were two children born to the marriage, one of whom was a minor at the time of the divorce. The parties entered into a written property settlement agreement which was ultimately incorporated into the divorce decree and which provided that plaintiff would receive (1) $300 per month as alimony, based upon defendant’s earnings of $1,020 per month; (2) $100 per month child support for the minor child; and (3) one-half of the marital assets and the house theretofore owned in joint tenancy. The decree further provided that defendant would not petition for a reduction of alimony unless one of the following events occurred: (1) the plaintiff’s earnings exceeded $60 per week (at the time of the decree she had no income); and/or (2) the minor child reached the age of 22, graduated from college or abandoned her full-time college education.

Defendant made alimony and support payments for 7 years until the filing of the instant petition in August, 1972, requesting a modification of the divorce decree. In the petition, wherein a termination of all alimony payments was sought, it was stated that since the entry of the divorce decree, he has paid $25,000 in alimony and $8,400 in child support. Further, the petition stated that defendants daughter would be 22 in the month following the filing of the petition; that in 2 months from the date of filing she would graduate from college; and that plaintiffs earnings exceeded $60 per week.

At the hearing on the petition, it was established that defendant’s net income had increased from $833 to $1,300 per month and plaintiffs net income, including stock dividends, was $578 per month. Moreover, the house owned by plaintiff had no mortgage, while defendant’s new home, owned with his present wife, was encumbered by two mortgages.

It was also established by plaintiff that, although defendant had made child support payments over the years of $8,400, the expenses for the child’s college education were $13,783, which did not include living expenses when not at school, transportation, books, clothing, allowances and other necessary expenses. In addition, it appears clear that at the time of the original decree it was contemplated by both parties that plaintiff would obtain additional income by seeking employment.

After the hearing, the court ordered that the alimony be reduced to ■ $200 per month and that plaintiffs petition for attorney’s fees be denied. It was from this order that both parties appealed.

OPINION

Whether the alimony to be paid by defendant should have been reduced rested within the sound discretion of the court and, unless the record shows an abuse of that discretion, such an order will generally not be disturbed on review. (Booth v. Booth, 6 Ill.App.3d 62, 64, 284 N.E.2d 506.) However, such modification may not be made arbitrarily or capriciously, and the petitioner must show that a substantial change in the circumstances of the parties has taken place since the entry of the decree. Bowman v. Bowman, 11 Ill.App.3d 719, 721, 298 N.E.2d 339.

In the recent case of Borowitz v. Borowitz, 19 Ill.App.3d 176, 311 N.E.2d 292, this court discussed the factors it would consider in a determination of whether to terminate or reduce alimony. Of paramount importance in the decision to modify and reduce the defendant’s alimony payments was the net worth of the wife at file time defendant’s petition was filed. The court there stated:

“The fact that the wife has acquired a substantial amount of property, or that her property has increased in value, has also been held to be an important consideration in determining whether and to what extent the decree should be modified. [Citations.] Where both the husband and the wife are in receipt of income or possess valuable property, the wealth of the wife as well as the husband should be taken into consideration. [Citations.]”

While the respective incomes of the parties here is considerably less than that of the parties in Borowitz, we believe that the rationale used in Borowitz to reduce the amount of alimony payments should apply here, since plaintiff is no longer without a source of income and has been employed continually since the entry of the decree in 1965. In addition, plaintiff received an inheritance of some $13,000, which contributed materially to her monthly income.

At the time of the petition, she received income of $578.00 per month and, contrasted with the fact that at the time of the entry of the decree she had virtually no independent income, we feel there is substantial support to indicate a material change of circumstances. (Warren v. Warren, 40 Ill.App.2d 286, 189 N.E.2d 401.)

It was pointed out in Borowitz that defendant’s ability to continue paying the support is not the only factor the court should consider in determining whether a change in circumstances has occurred which justifies a modification of the original award. That court cited as an additional factor the amount of alimony already paid to plaintiff from defendant since the decree was entered. Not only did defendant here pay $25,000 over a 7-year period, but he continued to make full alimony payments over the 7 years in the face of the additional earnings and other income received by plaintiff during those years.

In this regard, we note the court in Volid v. Volid, 6 Ill.App.3d 386, 391, 286 N.E.2d 42, stated:

“When the rules regarding the husband’s duty of support were first enunciated, the roles of a husband and wife were more rigid and defined. The husband worked and brought income into the family while the wife maintained and managed the household. The woman generally did not seek outside employment partly, because her place was in the home,’ * * *. Where a woman is trained, healthy, and employable, and where a woman’s efforts have not contributed to her husband’s wealth or earning potential, the necessity for an alimony award upon breakup of the marriage is not great.”

We believe that this same reasoning should apply in instances where a modification of a divorce decree is sought because of the increased earning ability of the wife. Accordingly, we find that under the circumstances here, which included the fact that the parties contemplated at the time of the original decree that plaintiff would obtain employment, the trial court did not abuse its discretion in reducing the amount of alimony from $300 to $200 per month.

Plaintiff also contends the court erred in denying the allowance of attorney’s fees to plaintiff. It is well-established that the allowance of attorney’s fees rests in the discretion of the trial court (Canady v. Canady, 30 Ill.2d 440, 197 N.E.2d 42), and in order to justify such allowance, the plaintiff must show financial inability to pay and the ability of the defendant to do so. (Woodshank v. Woodshank, 13 Ill.App.3d 692, 300 N.E.2d 494.) The trial court found no such inability on plaintiff’s part to pay her attorney’s fees, and there is nothing in this record which would indicate to the contrary. Therefore, we cannot make a finding that the trial court abused its discretion in denying the allowance of attorney’s fees to plaintiff.

For the reasons stated, the judgment is affirmed.

Affirmed.

BARRETT and LORENZ, JJ., concur.


text:
    Richard S. Ralph, d/b/a Richard S. Ralph & Associates, Plaintiff-Appellee, v. Karr Manufacturing Co., Defendant-Appellant.
    (No. 59211;
    First District (5th Division)
    June 7, 1974.

      Rehearing denied July 25, 1974.

      Víctor G. Savikas, of Friedman & Koven, of Chicago, for appellant.
    James D. Griffith and David H. Pauker, of Pauker & Griffith, Ltd., of Chicago, for appellee.
   Mr. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court:

Defendant appeals from a verdict and a judgment entered thereon in plaintiff's favor for commissions owed pursuant to the terms of a sales and marketing agreement.

Defendant is a manufacturer of metal stampings and plaintiff was a marketing and management consultant. On February 17, 1967, the parties entered into an agreement entitled, “Sales Management and Marketing Consultant Agreement” (“agreement”), which contemplated that plaintiff, using his best efforts, was to manage and increase defendant’s sales program by and through the retention of a sales force comprised of manufacturers’ representatives. As consideration for this effort, plaintiff was to receive a $100 monthly retainer for 3 years and a 3 percent commission on defendant’s sales to non-house accounts. The term of the agreement was to run until January 31, 1970.

On February 28, 1969, plaintiff was dismissed by defendant and thereafter filed this suit to recover unpaid monthly retainers and past and future commissions as provided for in the agreement. Specifically, plaintiff sought to recover the monthly retainers from November, 1968, through January, 1970, $2,700; commissions for the period from November, 1968 through February, 1969, $6,390 and 3 percent of what the sales would have been for the period February, 1969 through January, 1971.

At trial, the following testimony was adduced. Plaintiff testified that after the formation of the agreement, he undertook to fulfill his duties (as provided for in the agreement) in the following manner: He established and cooordinated a sales force of independent manufacturers’ representatives; he assisted in the preparation of a brochure advertising defendant’s services; he instituted a sales control program comprised of several component parts; he conducted what he termed to be “marketing surveys” and established a multi-tier quotation system. In addition, he introduced a stipulation entered into between the parties which reflected that the total sales of defendant, exclusive of house accounts, from December, 1968, through November, 1969, were $626,677.11; from December, 1969, through January, 1970, were $117,461.64; and from February, 1970, through January, 1971, were $1,167,320.33.

Plaintiff called Stan Karr, president of defendant company, under section 60, and elicited that prior to the formation date of the agreement, defendant did no business with Honeywell and Mallory, who later became defendant’s biggest customers. Karr could not recall whether Honeywill and Mallory became and continued to be defendant’s customers through plaintiff or his sales force’s efforts.

In his section 60 examination, plaintiff testified that three-quarters of the representatives hired by him did not bring in a single sale and further, that he had performed no services for Honeywell and, after one meeting in April, 1969, he had no contact with Mallory. Sales to those two companies generated 90 percent of his commissions.

Steven Murray, director of engineering for Mallory, testified on behalf of defendant that he was involved with- every Mallory order sent to defendant from February, 1967, through February, 1969, and that the decision to place orders with defendant was not the result of plaintiff’s efforts. However, on cross-examination, Murray acknowledged that plaintiff’s representative met with him prior to any orders being placed with defendant. In addition, he admitted that he had no knowledge of whether plaintiff’s representative had contact with the other employees in Mallory’s purchasing department.

Michael Ondoe, supervisor of buyers for Honeywell, testified on defendant’s behalf and stated that he never had any contact with plaintiff or any of his representatives and that all of his dealings with defendant were through Stan Karr. On cross-examination, Ondoe admitted the authenticity of an order from Honeywell through plaintiff’s representative prior to any order Ondoe placed directly with Karr.

The jury returned a verdict for $66,284.84. Defendant appeals from this verdict and the judgment entered thereon.

OPINION

Defendant first contends that plaintiff did not sustain his burden of proof in establishing that defendant’s sales increased as the result of his efforts. To sustain this contention, defendant points to section 2 of the agreement, which provides in part that plaintiff shall “put forth his best efforts and to diligently provide the management of Karr’s sales and marketing program and with such efforts to increase Karr’s sales * ” Defendant argues that plaintiff was required to but failed to establish that the increase in defendant’s sales were a direct result of his efforts.

Plaintiff, contrariwise, argues that in conformance with the provisions of the agreement, he formed a sales organization comprised of manufacturer’s representatives, established certain procedures which facilitated the operation of this sales organization, and, in general, performed those functions necessary to the promotion and growth of defendant. Testimony relating to the fulfillment of these tasks, as well as figures representing an appreciable increase in the sales of defendant, were introduced at trial as representative of plaintiff’s compliance with the agreements provisions.

Consequently, the question to have been resolved by the jury was whether plaintiff performed sufficiently so that he met the conditions of tiie agreement and thereby established his right to the compensation provided for therein. Plaintiff argues that in order to establish performance of the conditions requiring his “best efforts”, he had to and did prove that he diligently directed his efforts on defendant’s behalf. Defendant, however, maintains that mere proof of plaintiff’s best efforts did not establish compliance with this condition; rather, plaintiff had the additional burden of establishing that he “increased” the sales of defendant and, in the absence of any causal relationship between effort and result, plaintiff was not entitled to recover. The jury was instructed on plaintiffs theory of his burden of proof and found that plaintiff had performed his condition precedent to the agreement.

The express language of the agreement, when read in its entirety, provides for a diligent effort on plaintiff’s part to increase the sales of defendant. It does not, despite defendant’s interpretation, require that the sales of defendant had to increase. It appears, therefore, that there was no requirement that there be an increase in sales solely from his efforts. In addition, we note that the portion of section 2 of the agreement, set forth above, cited by defendant as determinative of the issue of plaintiff’s responsibility, continues with the following: “and with such efforts to increase KARR’S sales by means of recruiting an adequate and qualified sales organization * * (All of section 2 appears in footnote 1.) When considered with the section entitled “Ralph’s Duties” (footnote 1), which delineates the scope of plaintiff’s responsibilities, we believe that all plaintiff was required to establish was his performance vis-a-vis the agreement’s terms. Accordingly, after reviewing the record, we are of the opinion that there was sufficient evidence offered by plaintiff of the performance of his contractual duties to allow the question of satisfactory performance to go to the jury.

Plaintiff is required to plead and prove that he performed all the conditions precedent to the contract before he can recover. (Ill. Rev. Stat. 1973, ch. 110A, par. 133(c); Liberty Export & Import Corp. v. Swift & Co., 231 Ill.App. 1, 25.) However, whether a contract has been performed according to its terms is ordinarily an issue of fact to be decided by the jury. (Pescaglia v. Gianessi, 9 Ill.App.3d 582, 585, 295 N.E.2d 148.) This issue was resolved in favor of the plaintiff, and it is not the function of this court to re-determine questions of fact submitted to and decided by the jury unless the findings of fact are against the manifest weight of the evidence or the verdict is unsupported by any evidence whatsoever. (Dorweiler v. Gleim, 8 Ill.App.3d 190, 195, 289 N.E.2d 471.) In addition, we note that reasonable inferences may be drawn from undisputed or established facts and all that can be reasonably required to establish controverted facts is that the evidence, whether direct or circumstantial, creates a lesser probability leading on the whole to a satisfactory conclusion. (Smith v. Stopher, 125 Ill.App.2d 378, 387, 261 N.E.2d 16.) Here, the jury found that plaintiff performed the conditions precedent to the agreement and, under the instructions given it, we cannot say that its finding was against the manifest weight of the evidence.

This brings us to defendant’s next contention that the court erred in refusing to instruct the jury as to his theory of plaintiffs burden of proof. Specifically, defendant cites the court’s refusal to give his instruction 8B, which defendant claims contained the following essential language not contained in the burden of proof instruction given by the court at the request of plaintiff:

“Plaintiff has the burden of proving each of the following propositions:
** *
Second, that the sales of defendant were increased by reason of plaintiffs efforts.”

As hereinbefore noted, it is our opinion that plaintiff had to establish that he put forth his best efforts on defendant’s behalf and he was not required to show the sales of defendant had to increase before compliance with the agreement was had. Therefore, it follows that the court acted properly in refusing to tender defendant’s instruction as to this point. Moreover, we believe that instruction 5, given at the request of the plaintiff, accurately reflected the burden of proof placed on him. That instruction recited, almost verbatim, the crucial language of the agreement:

“Among his duties Ralph S. Richard was required to use his best efforts to manage Karr Manufacturing Co.’s sales and marketing programs and to increase the company’s sales by recruiting an adequate and qualified sales organization composed of independent [sic] representations.”

In addition, the court’s instructions 8A and 8C sufficiently apprised the jury of what plaintiff was required to prove and, in view thereof, we find no error was committed in refusing to give defendant’s instruction 8B.

Defendant also contends that plaintiff was not entitled to commissions after his dismissal because he failed to show that he was the procuring cause of sales made subsequent thereto.

Section 7 of the agreement provides:

“7. Compensation After Termination. Upon termination of this Agreement, however occurring (including the death of RALPH), KARR shall, for and during the one (1) year period immediately following the date of termination, pay RALPH or his legal representative, as the case may require, three per cent (3%) commission on sales made during such year to which this Agreement is applicable.”

We think that the agreement provides that plaintiff does not have to be the procuring cause of subsequent sales, because (1) section 7 provides that payments for 1 year were to be vested upon termination even if plaintiff died (in which event no additional sales could be attributable to him); and, of more significance, (2) section 6 provides that “RALPH shall receive a commission of three per cent (3%) of the net selling price * * * on all sales made by KARR during the term of this Agreement * * Thus, by the express terms of the agreement, plaintiff is entitled to commission on sales governed by the provisions of the agreement, which exclude only house and tooling accounts in existence at the time of the agreements formation.

The cases cited by defendant to support his theory are inapplicable in the face of express contractual provisions controlling this issue. As stated in Walgreen Co. v. American National Bank & Trust Co., 4 Ill.App.3d 549, 554, 281 N.E.2d 462:

“The principal function of a court in construing a written agreement is to discern and to give effect to the intention of the parties as expressed in the language of the document when read as a whole. [Citation.] A court cannot remake a contract and give- a litigant a better bargain that he himself was satisfied to make; and when the terms of a contract are clear and unambiguous, they must be enforced. [Citations.]”

It appears to us that section 7 Of the agreement does not, as defendant contends, provide that plaintiff must show he was the procuring cause of sales made subsequent to his dismissal in order to allow him to recover commissions. Accordingly, we believe plaintiff is entitled to commissions for 1 year from the date of his termination on all sales made after that date and which are not specifically excluded by the terms of the agreement.

With regard to this point, it was plaintiff’s position at trial, and the court instructed the jury at the request of plaintiff, that he was entitled to commission on sales made up to January 31, 1971, 1 year from the expiration date of the agreement, and not just to February 27, 1970, 1 year from the date of his termination. In order to buttress this position, plaintiff points to section 19 of the agreement and claims that when it is read in conjunction with section 7, heretofore noted, there is ample support to show that he is entitled to commission up to the expiration date as well as 1 year thereafter. We cannot agree with this construction of the agreement.

It is our opinion that section 7 is controlling on the question of continued commissions in the event of termination by defendant. Section 19 deals with the duration and the renewal provisions of the agreement, and we think it is specifically limited so that it will be operative only in the absence of termination prior to the date of expiration (“unless terminated sooner by reason of a material breach”). Here, the defendant, by preventing plaintiff from performing under the agreement, materially breached the agreement, and we must therefore turn to the provision dealing with termination and compensation in the form of continued commissions. Section 7 contemplates this situation and by its express terms allows for continued commissions for 1 year from the date of termination, no matter how the termination occurs. Therefore, the date of termination being February 28, 1969, we believe the court erred in allowing evidence and in instructing the jury on sales made by defendant after February 27, 1970.

In view of this determination, defendant’s contention that plaintiff’s computation of damages was speculative and based on conjecture is no longer an issue here. We agree that an approximation of defendant’s sales (when actual sales figures were available) for a period of time after termination based on an “increase factor” which was predicated on past performance is unacceptable and unreliable.

Where damages are susceptible to proof in dollars and cents, direct and tangible proof must be offered. Leon v. Thorlief Larsen & Son, Inc., 133 Ill.App.2d 911, 913, 272 N.E.2d 799.

Finally, as to commissions earned for sales made to Western Electric, we believe that plaintiff is entitled to 3 percent commission on all net invoiced sales and not on the purchase order prices introduced at trial.

For the reasons stated, the resolution of the measure of plaintiff’s damages must be remanded for a determination based upon defendant’s sales figures from the period February 28, 1969, to February 27, 1970, plus any arrearages owed to plaintiff as the result of sales prior to February 28, 1969.

Accordingly, we affirm the findings of the trial court as to defendant’s liability for the breach of the agreement and remand for the determination of damages not inconsistent with this opinion.

Affirmed in part.

Reversed in part.

DRUCKER and LORENZ, JJ., concur.

       “2. Best Efforts. RALPH agrees to exert and put forth his best efforts and to diligently provide the management of KARR’S sales and marketing programs and with such efforts to increase KARR’S sales by means of recruiting an adequate and qualified sales organization composed of independent exclusive representatives who will effectively and diligently devote themselves to the promotion and sale of metal stampings manufactured by KARR. In the course of performing such duties and responsibilities, RALPH shall consult with KARR on all sales management and marketing problems and in the formulation and administration of Company’s policies dealing with matters of sales promotion and marketing.
      3. Ralph’s Duties. RALPH’S functions, duties and responsibilities shall include the following:
      (a) To create markets and to develop sales representation for the promotion and sale of KARR’S metal stamping services.
      (b) To recruit a complement of independent exclusive manufacturers’ representatives sufficient to properly promote the sale of KARR’S metal stamping services throughout the United States.
      (c) To conduct sales seminars and meetings with the independent sales representatives and to assist such individuals in the performance of their duties and responsibilities as sales representatives of KARR.
      (d) To prepare marketing surveys and make studies and analyses necessary to determine the most suitable manner in which the metal stamping products and services of KARR can best be presented to customers and prospective customers.
      (e) To develop, institute and maintain a sales control system which will provide KARR with current information on the activities of the independent sales representatives.
      (f) To confer with KARR and develop programs for future sales and promotional activities.
      (g) To recruit and enter into formal agreements with independent sales representatives in various areas throughout the United States in which KARR’S metal stamping services will be offered.
      (h) To perform such other and further duties as may be reasonably required to effectively accomplish the primary duties as herein-above described."

       "Court’s Jury Instruction No. 8A
      3) ‘If you find that the Defendant has failed to pay the Plaintiff the $100.00 monthly retainer specified in the contract and that Plaintiff put forth his best efforts to increase sales on behalf of Defendant corporation, you may find in favor of the Plaintiff for this monthly sum, but not for any period extending beyond:
      a. February 28, 1969, if you find that the Plaintiff has committed a material breach of the contract, or

        b. January 31, 1970, if you find that the Plaintiff has not committed a material breach of the contract.’
      Court’s Jury Instruction No. 8C
      ‘Plaintiff has the burden of proving each of the following propositions:
      ‘First, that the plaintiff duly performed all conditions required on his part to be performed under the terms of the contract betwen the parties.
      ‘Second, that plaintiff used his best efforts to increase defendant’s sales.’ ”

       “19. Duration. This Agreement shall be effective as of the date hereof and unless terminated sooner by reason of a material breach or mutual agreement of the parties shall continue in force and effect to and including January 31, 1970, and shall automatically renew itself from year to year thereafter unless either party shall given written notice to the other of an intention to cancel this Agreement not less than thirty (30) days prior to January 31, 1970, or January 31 of any subsequent year during which this Agreement is in force and effect.”


text:
    United States Fidelity & Guaranty Company, Plaintiff-Appellant, v. Globe Indemnity Company et al., Defendants-Appellees.
    (No. 59774;
    First District (5th Division)
    June 7, 1974.

      Osterkamp, Jackson & Byrnes, of Chicago (Walter H. Osterkamp, Jr., of counsel), for appellant.
    Kralovec, Sweeney, Marquard & Doyle, of Chicago (John C. Doyle and Edward V. Scoby, of counsel), for appellees.
   Mr. JUSTICE LORENZ

delivered the opinion of the court:

Plaintiff appeals an adverse finding on its declaratory judgment action against defendant Globe Indemnity Co. (Globe) arising out of a dispute as to which company is responsible under their respective policies for defense and judgment of a personal injury action filed by J. P. Turner against Sealy Mattress Co. (Sealy) an insured in both policies. Plaintiff sought in the trial court: (1) a determination and the adjudication of Globe and the respective liabilities of plaintiff and Globe under their respective policies to Sealy; (2) a declaration that Globe be required to defend Sealy against Turners suit; (3) a declaration that with respect to the Turner suit, Globe is primarily liable and plaintiff liable only for monies in excess of the Globe policy limits; and (4) any other appropriate relief that the court deemed proper. The trial court found that the Globe policy specifically excluded coverage for Turner’s injuries under an “employee exclusionary” clause. Plaintiff contends on this appeal that the “employee exclusionary” clause in the Globe policy is inapplicable to Turner’s claim because he was not an employee of Sealy.

The facts are not in dispute. Hawthorn Leasing Co. (Hawthorn) entered into an agreement on November 16, 1967, to lease trucks to Sealy. The agreement provided, in pertinent part, that Hawthorn service and maintain the tracks and furnish insurance for bodily injuries with Globe naming Sealy as an additional insured. On February 1, 1968, a comprehensive general automobile liability insurance policy previously issued by Globe to Hawthorn was amended to specifically name Sealy as an additional insured. Sealy also carried a comprehensive general automobile liability insurance policy with plaintiff. Hawthorn additionally carried a workmen’s compensation policy with Globe.

While the foregoing policies were in effect, Turner, a Hawthorn employee, reported to the Sealy lot to service certain of the leased trucks. He was standing on a ladder repairing a trailer’s defective signal light when the vehicle was put into motion by a Sealy employee causing him to fall and sustain injuries. Turner received $5,000 under Hawthorn’s workmen’s compensation policy with Globe. He then sued Sealy to recover common law damages for his personal injuries on the theory of negligence of the Sealy employee in moving the trailer. Plaintiff, under its policy with Sealy, entered into defense of Turners lawsuit. Globe, however, relying on the aforementioned exclusionary clause, denied that its policy written for Hawthorn with Sealy as an additional insured provided Sealy with coverage for Turner’s injuries and refused plaintiff’s tenders to defend that suit. Plaintiff agreed to a $70,000 consent judgment in settlement of Turner’s claims against Sealy after having first filed this declaratory judgment action.

The purely legal question before this court is whether Sealy is entitled to coverage for Turner’s injuries as an additional insured under Hawthorn’s policy with Globe.

The pertinent provisions in Globe’s Comprehensive General Automobile Liability Insurance policy under consideration here provide:

1. Coverage C — Bodily Injury Liability.

“The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because ° * * bodily injury * * *.
Exclusions
This insurance does not apply:
(c) to bodily injury to any employee of the insured arising out of and in the course of his employment by the insured * *
Definitions — [The severability clause]
“The insurance afforded applies separately to each insured against whom claim is made or suit is brought * * *.”

It should be noted here that there is no dispute that Sealy is an additional insured in the Globe policy.

OPINION

Plaintiff contends that the exclusion of coverage for injuries to employees in the policy issued by Globe is inapplicable to Turner because he was an employee of Hawthorn and not Sealy. It is argued that the “severability clause” contained in that policy dictates this result by providing, in effect, that the insurance coverage involved is to be considered only as to the insured being sued. Defendant argues on the other hand that the “severability clause” does not affect the exclusion from coverage of Turner’s claim since he is an employee of a named insured (i.e., Hawthorn).

The legal precedents for the construction of insurance policies with respect to the “employee exclusion” clauses are not in controversy by the parties except as to their application to the particular facts in this case. The decisions in other jurisdictions are hopelessly irreconcilable. (50 A.L.R.2d 97-104.) In our jurisdiction four Illinois appellate court decisions and three decisions of the United States Court of Appeals for the Seventh Circuit (two decided under Illinois law) have considered these clauses. (General Accident Fire & Life Assurance Corp. v. Brown, 35 Ill.App.2d 43, 181 N.E.2d 191; Ohio Casualty Insurance Co. v. United States Fidelity & Guaranty Co., 79 Ill.App.2d 457, 223 N.E.2d 851; Midwest Contractors Equipment Co. v. Bituminous Casualty Corp., 112 Ill.App.2d 134, 251 N.E.2d 349; Schomas v. Farmers Automobile Association, 14 Ill.App.3d 598, 302 N.E.2d 196; Michigan Mutual Liability Co. v. Continental Casualty Co., 297 F.2d 208 (7th Cir., 1961); United States Fidelity & Guaranty Co. v. American Fidelity & Casualty Co., 299 F.2d 215 (7th Cir., 1962); Ferrell v. State Automobile Insurance Association, 303 F.2d 897 (7th Cir., 1962).) These seven decisions held, in effect, that if the injured party is the employee of either a named or an additional insured under the policy, the “employee exclusion” clause is applicable and operates to exclude coverage even though the injured party may not have been an employee of the insured committing the tort. Nevertheless, with the exception of Ohio Casualty, the cases did not contain the severability clause relied upon here by plaintiff. In Ohio Casualty, the court was called upon to consider the effect of the severability clause (added by the insurance industry in 1955 to standard policies) on the “employee exclusionary” clauses. The court stated: “If it [the severability clause] were intended to avoid the conflict in decisions, it could have been stated in clear language to reconcile or avoid these conflicts.” In 1966 the severability clause was altered to the language here under review, and it is plaintiff’s allegation that the change was made in response to that criticism.

We have given careful consideration to the language in Globe’s policy and are of the opinion that the 1966 change in the “severability” clause makes clear that the “employee exclusionary” clause does not operate to exclude an additional insured from protection under the policy against an injury suffered by an employee of the other named insured. Our view is that the policy’s intent is to treat each insured separately, as if each had separate coverage. The exclusion from coverage of employees injured in the course of employment applies only to employees of the insured being sued and not to the employees of any other insured covered in the same policy. Since Tinner is suing Sealy, and Sealy is not Tmner’s employer, it follows that Sealy is entitled to coverage under Globe’s policy. In short, we view the “employee exclusionary” clause in the Globe policy as applicable only to the situation where the litigants are themselves in an employee-employer relationship.

The judgment of the circuit court is reversed and the cause is remanded for the determination of remaining issues.

Reversed and remanded with directions.

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


author: Mr. PRESIDING JUSTICE HAYES

text:
    The City of Chicago, Plaintiff-Appellee, v. La Salle National Bank Trust No. 34471 et al., Defendants — (Henning Hotel Systems Corp. et al., Defendants-Appellants.)
    (No. 55855;
    First District (2nd Division)
    June 10, 1974.
    William Henning Rubin, of Chicago, for appellants.
    Richard L. Curry, Corporation Counsel, of Chicago (William R. Quinlan and Harvey N. Levin, Assistant Corporation Counsel, of counsel), for appellee.
   Mr. PRESIDING JUSTICE HAYES

delivered the opinion of the court:

On 3 January 1969, the City of Chicago filed a two-count complaint in the Circuit Court of Cook County against the La Salle National Bank as trustee under Trust No. 34471, the Henning Hotel Systems Corporation and the Henning Construction Corporation (both beneficiaries of Trust No. 34471), and the Federal Mortgage Association as mortgagee. The complaint alleged that a six-story building, located at 869 West Buena in Chicago and then being converted by the Henning Corporations from a hotel to an apartment building, violated the Municipal Code of the City of Chicago in several specified respects. Count I of the complaint prayed for a fine against defendants in the amount of $1600 for each day the violations existed. Count II of the complaint prayed for a mandatory injunction, the appointment of a receiver, an order allowing plaintiff to demolish the structure, and for a judgment and lien for demolition costs.

On 24 February 1969, the Federal Housing Authority, as assignee of the Federal Mortgage Association’s mortgage on the subject property, filed a bill to foreclose the mortgage in the appropriate Federal district court. Thereafter, a receiver was appointed to collect rents. The decree of foreclosure was entered on 20 June 1969, and both Henning Corporations were enjoined from interfering with the operation of the property. On 1 August 1969, the Standard Securities and Management Company came into possession of the property as agent of the Federal Housing Authority.

The action in the circuit court continued while the foreclosure action was pending and after its termination. On 29 April 1969, the attorney for the Henning Corporations told the Mai court of the progress the corporations were making to comply with the Municipal Code. Other hearings and continuances followed. On 2 April 1970, the Management Company was impleaded in the instant action as an additional party defendant. On 27 April 1970, in an ex parte proceeding, a mandatory injunction and an order imposing a fine of $800 were entered against the defendants, with leave given to defendants to file within 2 weeks a petition to vacate the injunction and the fine.

The fine and injunction were vacated on 11 May 1970 on petition of the Henning Corporations. Defendants were then given 90 days in which to cure the remaining defects on the premises. Upon the expiration of the 90-day period, further continuances were allowed. Full compliance was effected by 5 October 1970. After a hearing in aggravation and mitigation on that date, defendants were fined $400 plus costs. It is from the fine that the Henning Corporations appeal.

Appellants’ first contention is that the assessment of a fine against them was in violation of the 5th Amendment to the United States Constitution. We note that this 5th Amendment issue was not raised during the proceedings in the trial court or in appellants’ post-trial motion. Therefore, this question will not be considered for the first time on appeal. See Little Sister Coal Corp. v. Dawson (1970), 45 Ill.2d 342, 259 N.E.2d 35.

Appellants next contend that the trial court was without jurisdiction to levy a fine against them on 5 October 1970 because they were not responsible for the property in light of the decree of foreclosure and the injunction entered against them by the Federal district court. We assume that the appellants could not be held responsible for violations initially occurring after the effective date of the Federal injunction. But the alleged violations, for which the fine was sought and imposed, were in existence prior to the filing of the foreclosure proceedings in the Federal court and while the appellants were in unimpeded possession of the premises. Each day on which the alleged violations existed constituted a separate violation of the Municipal Code. Therefore, a fine for these violations could be properly imposed against appellants.

Appellants’ final contention is that they were somehow placed in former jeopardy by the trial court’s imposition of a fine on 5 October 1970 after it had vacated its earlier decree on 27 April 1970. The doctrine of former jeopardy is inapplicable to the facts of the case at bar. This was at most a quasi-criminal proceeding, and jeopardy has strict application to criminal prosecutions only. See Village of Maywood v. Houston (1956), 10 Ill.2d 117, 139 N.E.2d 233.

For the foregoing reasons the judgment below is affirmed.

Affirmed.

STAMOS and LEIGHTON, JJ., concur.


author: Mr. JUSTICE LEIGHTON

text:
    Patricia Slater, Adm’r of the Estate of David Slater, Deceased, Plaintiff-Appellant, v. Missionary Sisters of the Sacred Heart, d/b/a Columbus Hospital, Defendant-Appellee.
    (No. 56688;
    First District (2nd Division)
    June 10, 1974.

      Frederick J. Bertram, of Chicago, for appellant.
    Clausen, Hirsh, Miller & Gorman, of Chicago (John R. Caffrey, James T. Ferrini, and William J. Sneckenberg, of counsel), for appellee.
   Mr. JUSTICE LEIGHTON

delivered the opinion of the court:

This is an appeal from a judgment entered in a suit filed by David Slater against the Missionary Sisters of the Sacred Heart, a corporation doing business in Chicago as Columbus Hospital. In a complaint sounding in tort, he sought recovery for personal injuries he allegedly suffered while he was a patient in defendant’s hospital. Slater died while the suit was pending. Therefore, his daughter Patricia, administrator of his estate, was substituted as the party plaintiff. She thereafter filed an amended complaint and the case was heard by a jury. At the close of her case, after the trial court refused to admit certain exhibits she offered in evidence, defendant moved for a directed verdict. The motion was sustained, post-trial motions were later overruled and judgment was entered on the verdict.

Three issues are presented for our review. (1) Whether the trial court erred when it refused to admit certain exhibits offered by plaintiff. (2) Whether, on the facts of this case, the trial court erred in not applying the doctrine of res ipsa loquitur. (3) Whether the trial court erred in sustaining defendant’s motion for directed verdict.

On June 30, 1964, David Slater was admitted to the Columbus Hospital for treatment of a bilateral inguinal bulging. This was the only diagnosis made of his condition; there was no indication of any emotional or psychiatric illness. An operation was recommended, and on July 1, 1964, this was successfully performed. After the necessary surgical procedures, he was returned to a private room on the second floor of the hospital. The post-operation entries in his medical record showed a normal period of recovery after surgery; no neurological difficulty of any kind developed.

At about midnight on July 4, when the supervising nurse looked in on him, Slater had no complaint; he was in bed, reading. She asked him if he needed anything to sleep; he said he did not. Then, in an off-hand comment to the nurse, Slater said, “I usually stay up nights reading anyway.” After hearing this, the nurse left. However, at about 4:30 A.M. the following morning, the nurse found Slater lying in an ambulance driveway 25 feet below his room, having apparently either jumped or fallen from the window. He was banging his head against the pavement saying, “Let me die, leave me alone, just let me die.” Slater was brought back into the hospital, given emergency treatment and later listed as in critical condition. A neurological consultant was called; and after examining Slater, he concluded that the patient had developed delirium tremens at about 4:20 A.M. that morning. In an interview, Slaters mother informed the attending physician and the consultant that her son was a chronic alcoholic who was mentally disturbed as a result of his war experience. From this information, the hospital learned that Slater was a veteran. Consequently, on July 9, 1964, he was transferred to the Veterans Administration Hospital in Chicago. He remained there until November 24, 1964, when he was discharged. Then, unrelated to his injuries of July 5, 1964, Slater died of aspiration pneumonia on November 18, 1966.

At the trial, plaintiff called three witnesses who testified before the jury. The first was the Columbus Hospital supervising nurse who described her inspection of Slaters room at about midnight on July 4, 1964, and how she found him on the ambulance driveway during the early morning hours of July 5. The second was a Veterans Hospital file clerk who brought to court the medical records of Slater’s hospitalization in that institution between July 9 and November 24, 1964. The third was the plaintiff who told the jury of the circumstances under which her father was admitted to Columbus Hospital and the condition in which she saw him after he was found on the ambulance driveway.

In presenting her case to the jury, plaintiff offered in evidence Slater’s medical record at the Veterans Hospital, a statement of the charges that hospital made for the period of hospitalization, a portion of Slater’s Veterans Hospital record, a set of the standards for hospital accreditation, a section of the Illinois Hospital Licensing Act, a copy of the State requirements for hospital licensing and a set of the bylaws, rules and regulations of the Columbus Hospital. To each of these, defendant made an objection which the court sustained.

With regard to the Veterans Hospital records, no nurse, doctor or other person was called to testify to the authenticity of the entries they contained. It is well established that hospital records are generally not admissible without the testimony of the persons who made the entries which comprise the medical records. (Messina v. Zody, 13 Ill.App.3d 566, 300 N.E.2d 851; Flesberg v. Prince Warehouse Co., 37 Ill.App.2d 22, 184 N.E.2d 813.) Obviously, on plaintiffs offer of them, these exhibits were not admissible in evidence. Therefore, the trial court was correct when it sustained defendant’s objections. See Wright v. Upson, 303 Ill. 120, 135 N.E. 209; In re Estate of Rupinski, 131 Ill.App.2d 393, 266 N.E.2d 190.

Plaintiffs other exhibits were a set of standards for hospital accreditation, a section of the Illinois Hospital Licensing Act and a copy of certain parts of the State’s hospital licensing requirements. These were documents; and as such, their admission in evidence was governed by the principles which apply to oral testimony: they must be competent and relevant, or material. 4 Callaghan’s Illinois Evidence § 8.01.

It appears from the pleadings that there was no issue in the case concerning defendant’s compliance with standards for hospital accreditation. In fact, plaintiff did not allege that David Slater was injured as a result of defendant’s noncompliance with hospital accreditation standards. Nor was there any issue between the parties concerning comphance by defendant with the Illinois Hospital Licensing Act or with the State’s requirements for the licensing of a hospital. This being so, the exhibits were irrelevant and immaterial. Exhibits which are irrelevant or immaterial are properly excluded when objections to them are made. (See Kitchell v. Chicago & Illinois Midland Ry. Co., 285 Ill.App. 368, 2 N.E.2d 164; Feeley v. McAuliffe, 335 Ill.App. 99, 80 N.E.2d 373; Rockwood Sprinkler Co. v. The Philips Co., 265 Ill.App. 267; compare Tenebaum v. City of Chicago, 11 Ill.App.3d 987, 297 N.E.2d 716.) Therefore, the trial court did not err when it refused to admit in evidence those certain exhibits which plaintiff offered in evidence.

Nor did the trial court err when it failed to apply the doctrine of res ipsa loquitur to this ease. The doctrine known as res ipsa loquitur is an exception to the general rule which governs burden of proof in medical malpractice cases. (Estell v. Barringer, 3 Ill.App.3d 455, 459, 278 N.E.2d 424.) It applies where a doctor, nurse or other hospital personnel is so grossly remiss that their conduct falls within the common knowledge of a layman, or is so contrary to acceptable and customary medical practices and standards that the injury complained of would not have occurred but for negligence in the course of such conduct. (Estell v. Barringer, 3 Ill.App.3d 455, 459, 278 N.E.2d 424; see Annot, 9 A.L.R. 3d 1315.) In the case she made to the jury, plaintiff did not prove that David Slaters injuries would not have occurred but for defendant’s negligence. Therefore, on the record before us, it is plain that the doctrine had no application. See Simmons v. South Shore Hospital, 340 Ill.App. 153, 91 N.E.2d 135.

In fact, even on the theory that defendant was negligent when David Slater was injured, the evidence at the close of plaintiff’s case, construed most strongly in her favor, did not show that a verdict for her, based on that evidence, could ever stand. (See Pedrick v. Peoria & Eastern R.R. Co., 37 Ill.2d 494, 229 N.E.2d 504.) For example, plaintiff’s evidence did not explain what caused David Slater to jump or fall from the window of his second floor room in defendant’s hospital. None of defendant’s personnel had any knowledge that Slater was inclined to acts of self-destruction. When he was admitted to the hospital, there was no disclosure that he had a history of psychiatric illness. His hospitalization during surgery was normal and up till the time that he suffered his injuries, he did not develop any emotional disturbance or difficulty of any kind. When he was last seen, before he was injured, his comment was normal and natural, all leading the supervising nurse to conclude that he needed no special attention. When plaintiff testified concerning the circumstances of Slater’s hospitalization, she did not say anything to indicate that there was any suggestion in his condition which would have put defendant and its personnel on notice that precautions should have been taken to protect Slater from himself.

Although a hospital is not an insurer of a patient’s safety, it owes him a duty of protection and it must exercise the degree of reasonable care toward him as his known condition may require. (Mounds Park Hospital v. Von Eye (8th Cir. 1957), 245 F. 2d 756.) This duty extends to safeguarding a patient from dangers due to mental incapacity where that incapacity is known, or by the exercise of ordinary care ought to have been known. (Sylvester v. Northwestern Hospital (1952), 236 Minn. 384, 386, 53 N.W.2d 17.) Foreseeability of harm is an essential element to actionable negligence against a hospital for breach of duty of care to a patient under the circumstances claimed by plaintiff in this case. (Frederic v. United States (E.D. La. 1965), 246 F. Supp. 368.) Knowledge, then, that a patient requires reasonable precautions to protect him from self-destruction, is essential before liability can be imposed on a hospital for injuries the patient suffers at his own hands. (See Johnson v. Grant Hospital (1972), 32 Ohio St. 2d 169, 291 N.E.2d 440; State v. Washington Sanitarium & Hospital (1960), 223 Md. 554, 165 A. 2d 764; Clements v. Swedish Hospital (1958), 252 Minn. 1, 89 N.W. 2d 162.) Plaintiffs evidence was not sufficient to raise a jury issue on this essential fact. Therefore, the trial court did not err when it sustained defendant’s motion for a directed verdict. The judgment is affirmed. Dimitrijevic v. Chicago Wesley Memorial Hospital, 92 Ill.App.2d 251, 236 N.E.2d 309.

Affirmed.

HAYES, P. J., and DOWNING, J., concur.