author: RYAN, J.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Glen A. Espenscheid, Defendant-Appellant.
    Gen. No. 68-15.
    Third District.
    April 25,1969.
    Rehearing denied June 23,1969.

      Stamm and Makovic, of East Peoria, for appellant.
    Bernard Oltman, State’s Attorney, of Pekin, for appellee.
   RYAN, J.

Defendant, Glen A. Espenseheid, was tried by a jury in the Magistrate Division of the Circuit Court of Tazewell County and was found guilty of driving while his license was suspended, (Ill Rev Stats 1967, c 95%, § 6-303). He was sentenced to six months at the Illinois State Farm at Vandalia and was fined $500. He has appealed contending: (1) that the information was defective in failing to allege the defendant’s mental state and that certain instructions relating to his mental state were improperly refused; (2) that the evidence failed to establish his guilt beyond a reasonable doubt; (3) that an improper remark was made by the Court which was prejudicial to the defendant; and (4) that the sentence imposed was excessive.

Officer Eugene Wamsley, a state trooper, testified for the People that he apprehended the defendant while operating his car on Route 116 in the City of East Peoria, Tazewell County, Illinois between 7:30 and 8:00 p. m. on September 9, 1967. He stopped the defendant for speeding, and upon discovering that defendant had no driver’s license, charged defendant with violation of the aforementioned statute. On cross-examination, he further testified that defendant’s appearance, walk, and behavior gave the officer the impression that defendant was drunk but that after talking with the defendant, the officer determined that defendant wasn’t drunk. The People then introduced into evidence a certificate from the office of the Illinois Secretary of State that the defendant’s license had been suspended by the State of Illinois effective January 10, 1967, and that the defendant did not have a valid license on September 9, 1967.

The evidence for the defendant consisted of the defendant’s own testimony and the testimony of Evelyn Gardner who was employed by defendant in his tavern business. Defendant testified that he owns and operates a tavern in East Peoria known as the Lake Club. He also is employed by Caterpillar Tractor Company. He stated that he had injured his back at Caterpillar about 2:00 p. m. on September 9, 1967. He got off work at 3:18 p. m. and went to his tavern. At the tavern he took a double shot of whiskey because his back hurt. This didn’t do much good so he took two yellow pills that had been prescribed for him approximately two years previously when he had suffered an automobile accident. Then he took another shot of whiskey and one other pill. He said that he had been diagnosed as a diabetic. He stated that his ex-wife had been hiding his car from him. He stated that Thomas Sheidiey, a customer at the tavern, told the defendant that he knew where the defendant’s car was. The defendant and Sheidley left the tavern about 8:00 p. m. in Sheidley’s car to go to defendant’s car. The defendant stated that he remembers nothing that occurred between the hours of 8:00 p. m. that evening and 1:00 a. m. in the morning but that Sheidley told him the next day all about the evening’s events and that they were on their way back to the defendant’s tavern in defendant’s car when the defendant, was arrested. Evelyn Gardner, an employee in defendant’s tavern, confirmed his testimony concerning the defendant’s drinking whiskey, taking the pills, and leaving the tavern with Sheidley.

Defendant contends that the information in this case is fatally defective in that it omits the mental state of the defendant and that the defendant’s instructions relating to his mental state and condition were improperly refused.

The offense of driving a motor vehicle while the operator’s license is suspended, (Ill Rev Stats 1967, c 95%, § 6-303) involves absolute liability. As such, mental state as defined in Ill Rev Stats 1967, c 38, § 4-3 through § 4-7 is not involved in the offense. Though dicta, we believe the Court correctly stated the law in People v. Jensen when it said that the particular intent, knowledge, moral turpitude, if any, or purity of motive, if any, of defendant in a prosecution for driving a motor vehicle on a highway at a time when defendant’s operator’s license was revoked were immaterial on the question of guilt. People v. Jensen, 24 Ill App2d 302, 164 NE2d 228. The only intention necessary to render a person liable to a penalty for a violation of the automobile law is the doing of the act prohibited. People v. Thexton, 188 Ill App 2. Defendant’s proffered instructions 1, 2, 4, 5, 8 and 9 all relate to mental state and condition and were properly refused. For the same reason, we reject the contention of defendant that the information was defective.

Section 4r-9 of the Criminal Code of 1961 provides as follows:

“A person may be guilty of an offense without having, as to each element thereof, one of the mental states described in Sections 4-4 through 4-7 if the offense is a misdemeanor which is not punishable by incarceration or by a fine exceeding $500, or the statute defining the offense clearly indicates a legislative purpose to impose absolute liability for the conduct described.”

The defendant contends that by virtue of this section the court has no authority to construe section 6-303 of chapter 95% as involving absolute liability.

We cannot agree with this contention. The committee comments found in SHA, c 38, § 4-9 indicates that this section is an attempt to establish strict limitations upon the interpretation that mental state is not an element of an offense in the many statutory sections which appear to be absolute in language but which have not yet been interpreted by the courts. We feel that the court in People v. Jensen, supra, in a case which predates the enactment of the Criminal Code of 1961, expressed an interpretation of section 6-303 of chapter 95%. This interpretation views section 6-303 as an offense of absolute liability. Subsequently enacted section 4-9 of the Criminal Code will not affect this interpretation.

Defendant’s instruction No. 3 which was refused is as follows:

“The court instructs the jury that the defendant has raised the issue of a drugged condition. A person who is in a drugged condition is criminally responsible for conduct unless such condition either: (a) Negatives the existence of a mental state which is an element of the offense; or (b) Is involuntarily produced and deprives him of substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law.
“The court further instructs the jury that the State must sustain the burden of proving the defendant guilty beyond a reasonable doubt as to that issue together with all the other elements of the offenses.”

This instruction quotes the provisions of section 6-3 of the Criminal Code as it relates to a drugged condition. The instruction was properly refused. Subparagraph (a) of this instruction refers to mental state which as we have held above is not an element involved in this offense. It would be improper to give an instruction containing this provision. In addition, this instruction refers to a drugged condition and subparagraph (b) thereof refers to such a condition being involuntarily produced. There is no evidence in the case that the defendant was under the influence of any drug. There is evidence that he took some yellow pills. There is no evidence of the composition of these pills. Furthermore, there is no evidence that the yellow pills were consumed other than in a voluntary manner. In light of the lack of evidence relating to a drugged condition or a drugged condition involuntarily produced, it would not be proper to give this instruction.

Defendant’s instruction No. 12 which was also refused is as follows:

“A material element of every offense is a voluntary act, which includes an omission to perform a duty which the law imposes on the offender and which he is physically capable of performing.”

This instruction is in the words of section 4-1 of the Criminal Code. We feel this instruction was properly refused by the trial court. It was one of a series tendered by the defendant by which he attempted to raise the question of mental state and the affirmative defense of “drugged condition.” The reasons stated above for the refusal of defendant’s instruction No. 3 are applicable to instruction No. 12. Although the burden of proving an affirmative defense is not on the defendant, he must however raise the affirmative defense by introducing enough evidence on the subject to raise a reasonable doubt as to his guilt. Once this is accomplished the state has the burden of proving the defendant guilty beyond all reasonable doubt as to that element as well as to all the other elements as to that offense. Ill Rev Stats 1967, c 38, § 3-2; Callaghan’s Illinois Criminal Law, § 4.1, vol 1, page 67. In the case at bar the defendant has introduced no evidence to show that he was coerced into driving the automobile nor has he introduced any evidence to show that he was in a drugged condition involuntarily produced, which condition rendered him incapable of performing a voluntary act. The defendant has offered no evidence which would prove that his act of driving was other than a voluntary act. He merely stated he did not remember driving. Contrary to his contention now that he did not commit a voluntary act, his own testimony stated that he left his place of business for the express purpose of going to look for his automobile. It appears from the testimony that he was arrested shortly thereafter while driving his automobile. Accordingly, we believe that there was no evidence which required the giving of defendant’s instruction No. 12.

Defendant’s contention that the State failed to prove him guilty beyond a reasonable doubt is based on the alleged mental state and condition of defendant and the refusal of the court to grant defendant’s instructions regarding same. For the reasons previously stated, we reject that contention.

Defendant’s contention that the court made an improper remark during defendant’s final argument cannot be considered by this court for the reason that neither the defendant’s final argument nor the comment of the trial court appears in the record. Apparently the same were not preserved. The alleged remark of the trial court was to the effect that defense counsel’s suggestion as to maximum sentence was not necessarily correct and that a guilty verdict could also result in probation. Due to the fact that the final arguments do not appear in the record and to the fact that the exact remark of the judge has not been preserved, this court is unable to say whether or not such remark was prejudicial or whether or not it was justified by previous remarks made by defense counsel. No error is presented, therefore, for our review. People v. Brown, 89 Ill App2d 231, 231 NE2d 262. See also Walsh v. Chicago Rys. Co., 303 Ill 339, 135 NE 709.

For his final contention defendant asserts that the sentence imposed by the trial court was manifestly excessive, and asks that this court reduce the sentence as authorized by Supreme Court Rule 615 (b) (4), (Ill Rev Stats 1967, c 110A, § 615(b) (4)). The statute (Ill Rev Stats 1967, c 95^, § 6-303), provides that any person who drives a motor vehicle on any highway of the State at a time when his license is suspended shall be punished by imprisonment for not less than seven days nor more than one year, and in addition there may be a fine not in excess of $1,000. In this case the trial judge sentenced the defendant to serve a period of six months at the Hlinois State Farm at Vandalia and assessed a fine of $500. It appears that defendant had previously been found guilty of the same offense and had subsequently violated his probation on that conviction. The sentence was within the limits prescribed by law and proportionate to the offense. Considering the past record of the defendant we cannot say that the trial court abused its discretion in the matter.

The judgment of the Circuit Court of Tazewell County is affirmed.

Affirmed.

STOUDER, P. J. and ALLOY, J., concur.


source: Caselaw Access Project

author: MR. JUSTICE DAVIS

license: Public Domain

text:
    George Cody, Plaintiff-Appellant, v. Ferdinando Ladurini, Nando’s Sportsman’s Lounge, Inc., an Illinois Corporation, and Rita De Bartola, Defendants-Appellees.
    Gen. No. 68-175.
    Second District.
    May 22, 1969.

      Joseph A. Rosin, of Chicago, for appellant.
    Diver, Diver, Brydges and Bollman, of Waukegan, for appellees.
   MR. JUSTICE DAVIS

delivered the opinion of the court.

The issue in this case concerns the relation hack of the second amended complaint to the date of filing of the original complaint, and the question arises under section 46 of the Civil Practice Act (Ill Rev Stats 1965, c 110, par 46), and section 14 of Article VI of the Liquor Control Act (“Dram Shop Act”), (Ill Rev Stats 1965, c 43, par 135).

The order appealed from dismissed the plaintiff’s action against the defendant, Nando’s Lounge, Inc. The pleadings in the cause and their chronology are set forth in that they are pertinent to the issue presented for determination.

On April 6,1967, the plaintiff filed his complaint under the Dram Shop Act against the defendants, Ferdinando Ladurini, individually and d/b/a Nando’s Sportsman’s Lounge, and Rita De Bartola. The complaint stated that on August 20, 1966, the defendant, Ladurini, individually and d/b/a Nando’s Sportsman’s Lounge, was keeper or proprietor of a tavern which gave intoxicants to himself; that he consumed such liquors on the Lounge premises which resulted in his intoxication; and that while intoxicated, he assaulted and injured the plaintiff, without provocation. Summons was issued against the defendants, and Rita De Bartola was promptly served. Ladurini was not served and the sheriff noted on the summons that he was in the Highland Park Hospital and not accessible for service.

On May 4, counsel filed a special and limited appearance on behalf of both defendants, and on June 1, counsel filed a motion to dismiss the complaint on behalf of Rita De Bartola, which asserted that the complaint failed to state a cause of action in that “no cause of action can arise from the wrongful conduct of the operator or owner of a tavern as a result of intoxication brought about by said owner’s or operator’s consumption of alcoholic beverages from said owner’s or operator’s establishment.”

On June 19, the complaint was dismissed and the plaintiff was given leave to file an amended complaint which was forthwith filed and summons issued thereon for service on Ladurini. On this date, the plaintiff served notice and moved to take Ladurini’s evidence deposition. Ladurini filed a motion to quash the notice of taking his deposition in that he had not been served with summons. This motion was granted and Ladurini was subsequently-served with summons on June 21.

On July 19, the defendants filed a motion to dismiss the amended complaint, and on August 16, the plaintiff again served notice and moved to take Ladurini’s deposition on August 24. On August 21, Ladurini filed a motion to quash the taking of his deposition, and on September 1, the plaintiff filed his motion and verified petition for leave to file a second amended complaint, substituting in lieu of “Nando’s Sportsman’s Lounge, a proprietorship,” “Nando’s Lounge, Inc., a corporation.”

The petition recited the difficulties which the plaintiff had encountered in obtaining service of process upon and in taking the deposition of Ladurini—which was ultimately taken August 31; it further asserted that shortly before taking this deposition, the plaintiff was advised that the Lounge was a corporation known as Nando’s Lounge, Inc., and that it was not a proprietorship as he had been led to believe; that the certified list of corporations issued by the State in 1966 and published for use in 1967, failed to list Nando’s Lounge, Inc., as either a domestic or foreign corporation; and that Ladurini deposed that he was president as well as registered agent of this corporation.

The petition further recited that the second amended complaint alleged that Ladurini was a patron of Nando’s Lounge, Inc.; that he purchased, was served and consumed a quantity of alcoholic beverages on said premises and, as a result, became intoxicated; that upon leaving the premises, he assaulted the plaintiff; and that the substitution of Nando’s Lounge, Inc., for Nando’s Sportsman’s Lounge, a proprietorship, rendered moot the issues of law raised by the defendants as the basis for dismissing the amended complaint.

The petition further recited that the plaintiff had moved to file his second amended complaint with all due diligence and in full compliance with section 46 of the Civil Practice Act.

On September 1, the court granted the plaintiff leave “to file his second amended complaint substituting as a party defendant Nando’s Lounge, Inc. in place and stead of Nando’s Sportsman’s Lounge, and for summons to issue.” The second amended complaint was filed and summons issued, and was served on September 7.

On November 2, the defendant, Nando’s Lounge, Inc., filed its motion to dismiss the second amended complaint on the ground that the action was not filed within the time prescribed by the Dram Shop Act. On November 24, the plaintiff filed an affidavit in opposition to the defendants’ motion to strike, which contained allegations essentially similar to those found in the petition for leave to file.

The court heard the arguments of counsel in connection with the motion to strike, requested counsel for the plaintiff and the defendant to submit memoranda of law, and on August 26, 1968, entered an order dismissing Nando’s Lounge, Inc. from the lawsuit; directing Rita De Bartola to file answer within 20 days; and finding that “there is no just reason for delaying the appeal of the order dismissing Nando’s Lounge, Inc.” The plaintiff filed notice of appeal from this order on September 16.

On July 26, 1968, the trial judge wrote a letter to the attorneys for the defendants and forwarded a copy thereof to counsel for the plaintiff, which stated that he dismissed the second amended complaint in that section 46 of the Civil Practice Act did not apply to extend the statute of limitations under the Dram Shop Act. He further asserted that his conclusion rendered it “unnecessary to decide whether or not section 46 (4) (b) was complied with.” However, he stated that it was “clear from the circumstances that failure to join Nando’s Lounge, Inc. . . . was not inadvertent.”

Upon appeal, the plaintiff urges that the trial court erred in dismissing Nando’s Lounge, Inc. from the lawsuit and in refusing to apply section 46 of the Civil Practice Act and its doctrine of relation back to actions arising under the Dram Shop Act.

The defendant, Nando’s Lounge, Inc., contends that section 46 of the Civil Practice Act does not apply to a “by” action under the Dram Shop Act, to permit the plaintiff to add an additional party defendant after the expiration of the one year period prescribed by the Dram Shop Act; and that the plaintiff, on appeal, has not met his burden to overcome the presumption of validity attaching to the order appealed from.

The question of whether a change may be made in the parties to an action after the statute of limitations has run, has been the subject of much controversy. Under the common-law practice, if a plaintiff made a mistake as to the parties who should have been named as defendants, by omitting to join a proper party, he could not, as a general rule, rectify his mistake or omission.

The strict common-law rule with reference to adding parties who were omitted in the first instance was ameliorated by rules of chancery practice and, subsequently, by statutes. However, such statutes were often nullified by court decisions on the theory that the time set by the particular act under consideration, was not a statute of limitations, but a condition of liability itself which required that the plaintiff must bring himself within the terms of the statute in order to recover. See: Fitzpatrick v. Pitcairn, 371 Ill 203, 210, 20 NE2d 280 (1939); and Annotations, 8 ALR2d 6.

The Joint Committee Comments on section 46(4) of the Civil Practice Act (SHA ch 110, par 46(4), pages 255 through 260), adequately outline the Illinois decisions and legislative enactments dealing with this subject. At page 257, the Comments state that section 46(4) “is the solution, which it is believed, deals adequately with the problem and at the same time contains safeguards against the undermining of the statute of limitations.”

The action at bar is one against the defendants for injuries to the person of the plaintiff, inflicted or caused “by an intoxicated person.” The Dram Shop Act also provides a cause of action to persons sustaining injuries to person or property, or means of support “in consequence of intoxication.” Economy Auto Ins. Co. v. Brown, 334 Ill App 579, 583, 79 NE2d 854 (1948). While the defendant, Nando’s Lounge, Inc., contends that section 46(4) does not apply to a “by” action under the Dram Shop Act, we find no logical reason to distinguish between the two types of Dram Shop actions with reference to the application of section 46(4) thereto.

Generally, section 46(1) deals with the joinder of parties and causes of action or defenses, and subsection (2) provides that amendments may be made if the matter introduced by the amended pleadings “grew out of the same transaction or occurrence set up in the original pleading.” Subsection (4) applies to the situation in which the plaintiff sued the wrong defendant but served process upon the agent or officer of the right defendant, and the statute of limitations ran before the mistake was rectified. The decision in Fitzpatrick v. Pitcairn, supra, presented a problem for statutory solution. The legislature met this challenge by subsection (4) and therein provided safeguards against undermining the statute of limitations.

The pertinent provision of the Dram Shop Act states: “Every action hereunder shall be barred unless commenced within one year next after the cause of action accrued.”

We believe that the provisions of section 46 of the Civil Practice Act and section 14 of Article VI of the Liquor Control Act are in pari materia and that they must be construed together to determine the intent of the legislature. The primary object of statutory construction is to ascertain and give effect to such intent, and courts should consider the reason or necessity for the enactments, the contemporaneous conditions, existing circumstances, and the object sought to be obtained by the statutes. City of Highland Park v. Curtis, 83 Ill App2d 218, 227, 226 NE2d 870 (1967).

In Waller v. Cooper, 49 Ill App2d 482, 200 NE2d 105 (1964), the court held that an amendment to a timely filed complaint after the expiration of the statutory two-year period for the commencement of the action, for the purpose of identifying the decedent’s next of kin and the pecuniary loss not set forth in the complaint, was permissible under section 46(2) of the Civil Practice Act. This decision fully reviewed and analyzed some of the then current decisions dealing with the question of whether an amendment under section 46 of the Civil Practice Act relates back to the original filing of the action.

In Metropolitan Trust Co. v. Bowman Dairy Co., 292 Ill App 492, 11 NE2d 847 (1937), affd 369 Ill 222, 15 NE2d 838 (1938), the court construed the limitation of the Injuries Act and section 46 of the Civil Practice Act, and its requirement that the cause of action set up in the amendment “grew out of the same transaction or occurrence set up in the original pleading.” At page 228 the court stated:

“Section 46 of the Civil Practice Act makes several noticeable changes in the prior statute. Presumably the legislature knew the import of our pronouncements under the former acts, and had in mind remedial legislation to overcome and correct such statutory faults. . . .”

And at page 230 the court stated:

“. . . These changes, together with the judicial construction of the prior statutes, evince the legislative intent to remedy the evils incident to the former legislation and to preserve causes of action against loss by reason of technical rules of pleading. This is manifest from the concluding language of paragraph 2 which specifically declares the purpose of preserving the cause of action.”

In Simmons v. Hendricks, 32 Ill2d 489, 207 NE2d 440 (1965), the defendant moved to dismiss the plaintiff’s Dram Shop action for loss of means of support occasioned “in consequence of” the intoxication of their husband and father. The ground for dismissal was that the action had not been instituted by proper parties plaintiff within one year after it accrued. The trial court dismissed the complaint; the appellate court reversed the trial court and the supreme court affirmed the appellate court. At pages 492 and 493, the court stated:

“The defendants do not suggest that they would in any way be prejudiced, or even inconvenienced, by the substitution of Leroy Simmons as nominal plaintiff in lieu of the parties beneficially interested. Eather it is their contention that because the Dram Shop Act, like section 2 of the Injuries Act which governs actions for wrongful death, gives a right of action unknown to the common law and requires that the action be commenced within one year, the original complaint must be totally disregarded because it failed to comply precisely with the requirements of the statute. They read the language of the time limitation in the Dram Shop Act as expressing a ‘condition of liability’ that relates to substantive rights and to jurisdiction, rather than as expressing a procedural limitation. . . . But we need not pursue this matter, for we are of the opinion that under section 46 of the Civil Practice Act (Ill Rev Stats 1959, c 110, par 46) the result would be the same whether the time limitation is regarded as prescribing a condition of liability or as stating an ordinary period of limitations.”

And, at page 494, further stated:

“By its express terms section 46 applies to ‘any statute or contract prescribing or limiting the time within which an action may be brought or right asserted.’ The section is thus applicable whether a particular time limitation is regarded as a prescription governing the right to sue or as a statute of limitations. The leading case upon the construction of section 46 is Metropolitan Trust Co. v. Bowman Dairy Co., 369 Ill 222, in which this court held squarely that the section is applicable to a wrongful death action.”

We believe that the rationale of Simmons establishes beyond doubt that section 46 of the Civil Practice Act extends the statute of limitations in the Dram Shop action at bar.

The cited cases have not dealt with the question of whether an amendment whereby a corporate defendant was substituted for an individual defendant, will relate back to the original filing of the complaint and, thus, extend the statute of limitations.

However, in Lau v. West Towns Bus Co., 16 Ill2d 442, 158 NE2d 63 (1959), a personal injury action was brought against a reorganization trustee in bankruptcy of the bus line and, thereafter, the reorganized corporation, West Towns Bus Co., took over the operation of the bus line. The defendant there contended that any cause of action against it was barred by the statute of limitations. At pages 448, 449 and 450, the court stated:

“We next consider the plea of the Statute of Limitations. Section 46 of the Civil Practice Act, (Ill Rev Stats 1957, c 110, par 46) liberally provides for amendments, at any time before judgment, introducing any party who ought to have been joined as plaintiff or defendant. . . .
“As we stated in Geneva Construction Co. v. Martin Transfer and Storage Co., 4 Ill2d 273, at pages 287, 289 and 290: ‘The present section 46 is the culmination of continuing efforts on the part of the General Assembly to enact a provision under which the relation back of an amended pleading would be governed by considerations of fairness to the litigants, rather than by technical and formal considerations. . . . Statutes of limitation, like other statutes, must be construed in the light of their objectives. The basic policy of such statutes is to afford a defendant a fair opportunity to investigate the circumstances upon which liability against him is predicated while the facts are accessible. That purpose has been fully served here.’ ”

In Cain v. New York Cent. R. Co., 35 Ill App2d 333, 182 NE2d 910 (1962), the philosophy underlying the rationale of section 46 was adequately expressed at page 338:

“This section is to be construed liberally to the end that the controversy may be decided upon its facts and its merits and in furtherance of justice. (Citations.) The basic policy concerning the Statute of. Limitations in a case under Section 46 is contained in Geneva Const. Co. v. Martin Transfer & Storage Co., 4 Ill2d 273, 122 NE2d 540, which points out that when the defendant has had notice from the beginning that the plaintiff is trying to enforce a claim against him because of specific conduct, the reason for the Statute of Limitations does not exist and the liberal rule should be applied.”

In Silver v. Lee Shell Equipment Corp., 31 Ill App2d 266, 175 NE2d 287 (1961), the complaint was dismissed against I. W. Shell and William Shell on the ground that they had not been made parties defendant within the period of limitations provided by law. The plaintiffs maintained that section 46(4) provided that an amendment may be filed which adds parties defendant and which relates back to the filing of the original action, even though the statute of limitations had expired, upon the following conditions, which are set forth at page 268:

“(a) the period of limitations had not expired when the original action was commenced;
“(b) failure to join the additional party was inadvertent;
“(c) service of summons was in fact had upon the person, his agent or partner, even though he was served in the wrong capacity or as agent of another;
“(d) the additional defendant, within the time that the action might have been brought or asserted against him, knew that the original action was pending and that it grew out of a transaction involving him;
“(e) it appears from the original and amended pleadings that the cause of action asserted in the amended pleadings grew out of the same transaction or occurrence.”

And, at page 270, the court stated:

“Statutory construction must always begin with a study of the language of the act itself. The history of the legislation may be inquired into for the purpose of clarifying an ambiguity or a doubtful meaning. It cannot be used to impose a new condition or limitation on a right granted by the act which is not contained in or suggested by the language of the act itself. To us it appears that the legislature sought to provide a remedy for the inequities growing out of the confusion that may result from the changing entities under which contemporary business and industry is conducted. At the same time the legislature created conditions which would safeguard against the undermining of the statute of limitations. ... In other words, it took account of the problem that lawyers in our time have of determining the right defendant. That is particularly true in a densely populated city where one may deal for years with a business and not know the character of its organization—whether corporate, partnership, individual, or a common law trust.
“The primary basis for allowing such an amendment is knowledge of the suit through actual service on the person sought to be added or substituted or his partner or agent within the period of the statute of limitations, albeit he was served in the wrong capacity.”

In the case at bar, Ladurini knew that the complaint erroneously named him, individually and d/b/a Nando’s Sportsman’s Lounge, as defendant. The record indicates that he did business as Nando’s Sportsman’s Lounge, and so advertised by means of pad-matches. He avoided and postponed the taking of his depositions and thereby aided in secreting the correct name of the tavern. However, he knew, from the time of the filing of the original complaint, the nature of the claim sought to be enforced against Nando’s Lounge, Inc., and the specific conduct which was the basis for it; that the time prescribed for commencing suit had not expired when the original action was filed; and that the claim grew out of a transaction or occurrence which involved Nando’s Lounge, Inc.

Service of summons was had upon Ladurini, individually and d/b/a Nando’s Sportsman’s Lounge, at a time when he was president and registered agent of Nando’s Lounge, Inc. The allegations of the original and second amended complaints related to the same occurrence, and the specific conduct giving rise to the Dram Shop action asserted in said complaints, was identical.

While it appears that the trial court only considered the question of compliance with section 46 (4) of the Civil Practice Act by way of dictum, both parties have treated it as one of the issues on appeal, and we will determine such issue.

The plaintiff filed an affidavit in support of his petition for leave to file a second amended complaint, and filed an affidavit in opposition to the defendant’s motion to dismiss his second amended complaint. Each affidavit contained the allegations heretofore stated and the defendant, Nando’s Lounge, Inc., filed no counteraffidavits or other responsive pleadings thereto.

The defendant’s motion to dismiss was filed under section 48(1) (e) of the Civil Practice Act. Subsection (3) of section 48 provides:

“ (3) If, upon the hearing of the motion, the opposite party presents affidavits or other proof denying the facts alleged or establishing facts obviating the grounds of defect, the court may hear and determine the same and may grant or deny the motion. If a material and genuine disputed question of fact is raised the court may decide the motion upon the affidavits and evidence offered by the parties, or may deny the motion without prejudice to the right to raise the subject matter of the motion by answer and shall so deny it if the action is one at law and a jury demand has been filed by the opposite party in apt time.”

The defendant’s motion was not supported by affidavit and contained no verification other than that which referred to service of a copy thereof on the parties litigant. The motion was grounded on the plaintiff’s failure to file the second amended complaint within one year from the date of the occurrence in question.

No evidence, other than the plaintiff’s affidavit in opposition to the motion to dismiss, was offered. Consequently, the facts before the court were those set forth in the second amended complaint (which were admitted by the motion to strike), and in the affidavit in opposition to the motion to dismiss.

The record indicates that the motion to dismiss was granted on the basis that, as a matter of law, section 46 of the Civil Practice Act was not applicable to extend the statute of limitations in the action. We believe that the court erred in granting the motion to dismiss for the reasons heretofore stated.

We also find that the plaintiff has complied with all the conditions required by section 46(4), including the specification of (b) thereof that “failure to join the person as a defendant was inadvertent.” The facts heretofore recited establish this required condition.

The term “inadvertent” has been defined and it has been held to be synonymous with excusable ignorance. Fields v. 6125 Indiana Ave. Apartments, Inc., 47 Ill App2d 55, 56-57 incl., 196 NE2d 485 (1964); Robinson v. Chicago Nat. Bank, 32 Ill App2d 55, 60, 61, 176 NE2d 659 (1961). In the case at bar, we believe that, under the facts heretofore related, the plaintiff acted with reasonable diligence—in fact, with dispatch—after the identity of the true defendant became known. Consequently, he met the test of inadvertency.

The defendant also urges that by the amendment to paragraph 135 of the Dram Shop Act in 1965, the legislature in effect overruled Simmons v. Hendricks, supra, with respect to the joinder of parties plaintiff. The pertinent part of the amendment caused the section to read:

“Such action, if the person from whom support was furnished shall be living, shall be brought by any person injured in means of support in his or her name, or his or her benefit and the benefit of all other persons injured in means of support; however, any person claiming to be injured in means of support and not included in any suit brought hereunder may join by motion made within the time herein provided for bringing such action, . . . .”

The defendant’s contention can avail it nothing on this appeal, for two reasons: (1) the case at bar involves the question of the propriety of an amendment which substitutes a corporate defendant for an individual doing business under a proprietorship name; and (2) generally, a statute should not be construed to effect a change in the settled law of the state unless its terms clearly require such construction. People v. Bernette, 30 Ill2d 359, 374, 197 NE2d 436 (1964); Sternberg Dredging Co. v. Estate of Sternberg, 10 Ill2d 328, 333, 334, 140 NE2d 125 (1957). We do not believe that the above quoted amendment requires such construction.

Simmons, and the cited cases which held the provisions of section 46(4) applicable with reference to an amendment relating back to the filing of the original action, so held regardless of the express limitation of paragraph 135 of the Dram Shop Act, which stated: “provided that every action hereunder shall be barred unless commenced within one year . ...” Wé do not find the language of the amendment which states that “any person claiming to be injured in means of support . . . may join by motion made within the time herein provided for bringing such action,” any more compelling than that of the one-year provision of the statute.

We find the record on appeal sufficient to overcome the presumption that the order appealed from is valid. The record, which was certified to by the Clerk of the Court as complete, fails factually to sustain the presumption urged by the defendant in this respect. It further indicates that the dictum of the trial court—that the plaintiff’s failure to join Nando’s Lounge, Inc., as a defendant, Was not inadvertent—was against the manifest weight of the evidence.

In Elgin Lumber & Supply Co., Inc. v. Malenius, 90 Ill App2d 90, 232 NE2d 319 (1967), at page 97, we stated:

“Upon appeal, we are required to review cases not only as to law, but also as to the facts, (citations), and it is our duty to review the evidence and to reverse the . . . judgments of trial courts whenever we find such . . . judgments . . . clearly against the manifest weight of the evidence.”

In the fulfillment of our duty, we find the trial court’s dictum with reference to the plaintiff having failed to fulfill the test of inadvertency, to be against the manifest weight of the evidence, and we find the trial court’s ruling with reference to the inapplicability of section 46 of the Civil Practice Act to extend the Statute of Limitations in the case at bar, contrary to existing law.

In view of our conclusions, the judgment of the trial court is reversed and the cause is remanded for further proceedings consistent with the views expressed herein.

Reversed and remanded with directions.

MORAN, P. J. and ABRAHAMSON, J., concur.


author: CRAVEN, J.,

text:
    Country Mutual Insurance Company, Petitioner-Appellee, v. The National Bank of Decatur, Administrator of the Estate of Ronald Lee Brown, Deceased, Respondent-Appellant. Country Mutual Insurance Company, Petitioner-Appellee, v. Raymond Wattles, Administrator of the Estate of Darrell Wayne Wattles, Deceased, Respondent-Appellant.
    Gen. Nos. 11,030,11,031. (Consolidated.)
    Fourth District.
    May 22, 1969.
    Rehearing denied July 1,1969.

      Woollen, Brown & Hawkins, of Decatur (Rex L. Brown and Elmer C. Hawkins, of counsel), for appellants.
    Marshall A. Susler and Robert D. Owen of Greanias & Owen, of Decatur, for appellee.
   CRAVEN, J.,

delivered the opinion of the court.

This is an appeal in two separate cases by administrators of deceased automobile passengers from orders and judgments of the circuit court vacating and setting aside the awards made by an arbitrator in two arbitration proceedings held pursuant to arbitration clauses in automobile insurance policies issued by Country Mutual Insurance Company under uninsured-motorist endorsements.

The accident involved occurred May 13, 1962, when Ronald Lee Brown and Darrell Wayne Wattles, passengers in an automobile driven by George Campbell, allegedly driven at a high rate of speed, were injured and died that date from such injuries. The driver of the automobile had no liability insurance. Decedents had insurance policies containing uninsured-motorist endorsements.

While The National Bank of Decatur, as administrator of the estate of Judy Burns, another passenger who died from injuries received in the same accident, filed suit against Virgil Hanks, the driver of another car involved in such occurrence, and received a $5,000 settlement of that case, no suits against Hanks were filed for the wrongful deaths of Ronald Brown or Darrell Wattles.

On April 21, 1965, nearly three years after the deaths, appellants filed demands for arbitration with the American Arbitration Association under the uninsured-motorist endorsements to the policies issued by Country Mutual Insurance Company to Wattles and Brown. Answers to these demands were filed asserting that the claims were barred by the provisions of the Illinois Wrongful Death Statute which made their filing within the two-year statutory period a condition of the cause of action. The cases were heard by an arbitrator appointed by the American Arbitration Association. He entered an award in favor of the administrator of the estate of Ronald Lee Brown, deceased, for $17,500 and an award in favor of the administrator of the estate of Darrell Wayne Wattles, deceased, for $16,000.

Upon applications to the circuit court to vacate the awards, the court vacated and set aside the awards, which orders we have on appeal.

The precise matter presented is whether the arbitrator’s awards were properly vacated. The trial court held the arbitrator had exceeded his powers in granting awards in that the two-year statute of limitations in wrongful-death actions applied and that the rights of action had expired when the demands for arbitration were filed.

We are confronted with the question of the trial court’s vacating awards of an arbitrator concerning an issue which the parties contracted to arbitrate, and the further question of whether the two-year limitation period in Uli-

nois for commencing wrongful-death actions bars recovery (Ill Rev Stats 1967, c 70, pars 1 and 2), or whether the ten-year statute of limitations as to written-contract actions is applicable to the claims presented (Ill Rev Stats 1967, c 83, par 17).

In 1961, Illinois enacted the Illinois Uniform Arbitration Act (Ill Rev Stats 1967, c 10, par 101, et seq.). Our Supreme Court, in Flood v. Country Mut. Ins. Co., 41 Ill2d 91, 242 NE2d 149 (1968), interpreted that statute in connection with an uninsured-motorist endorsement clause in a standard automobile insurance policy which was virtually identical to the clause in the instant cases. Among other provisions of the statute, the court, in that case, recognized that the statute empowered courts to vacate arbitrators’ awards, setting forth the grounds and procedures for such action. (Ill Rev Stats 1967, c 10, par 112.)

While there was considerable conflict in the cases passing upon arbitration at common law, even at common law an arbitration award could be reviewed by the courts. Arbitration awards have been set aside upon a showing of fraud, corruption, evident partiality, that the arbitrator exceeded his authority, irregularities in the proceeding which deprived a party of a fair and impartial hearing, gross errors of fact or law, a plain mistake of law if the submission agreement required the arbitrator to determine the rights of the parties according to law, and a mistake of law if the award showed on its face that the arbitrator intended to decide according to the law but mistook or misconstrued it. These common-law grounds of vacation were fully discussed in White Star Min. Co. v. Hultberg, 220 Ill 578, 77 NE 327 (1906). See also 6 CJS, Arbitration and Award, §§ 104-105.

The arbitration clause in the instant policy endorsement provides: “Such person and the Company each agree to consider itself bound and to be bound by any award made by the arbitrators pursuant to this endorsement.” Appellants contend that by this clause the parties agreed to be bound by the arbitrator’s awards. This clause does not purport to and could not waive or bar the parties from all rights of court review of the awards. Section 12 of the Uniform Arbitration Act (Ill Rev Stats 1967, c 10, par 112), among other grounds for a court vacating an arbitration award, sets forth the ground that “(3) The arbitrators exceeded their powers; . . . .” As was said in Arlington Towers Land Corp. v. John McShain, Inc., 150 F Supp 904, 923 (DC Dist Columbia 1957):

“Although the Arbitration Agreement specifically provides that the award of the Arbitrator shaU be final and binding, that neither party will contest such findings and that neither party will appeal from any portion of the final judgment, there appears to be no doubt but that the plaintiffs are within their rights in challenging the Arbitration award, particularly on the grounds that the Arbitrator exceeded his authority and upon the grounds of fraud, bias and prejuduce.”

There are certain legal rights and doctrines which the parties cannot waive or stipulate away. Some examples of these are: the requirement of law of filing a timely notice of appeal (McHale v. Marrs, 48 Ill App2d 171, 197 NE2d 736 (2nd Dist 1964)) and the requirement that the tribunal have jurisdiction of the subject matter of a case (Lawn Savings & Loan Ass’n v. Quinn, 81 Ill App2d 304, 225 NE2d 683 (1st Dist 1967)). Of the same nature as these is the right of judicial review. If, in fact and in law, there was no cause of action available here to claimants, the arbitrator exceeded his powers in entering awards and the court was correct in vacating the awards.

The uninsured-motorist endorsement clause in the instant policies bound Country Mutual Insurance Company in the “Insuring Agreements”:

“To pay all sums which the Insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury, including death resulting therefrom, . . . ; provided, for the purposes of this coverage, determination as to whether the Insured or such representative is legally entitled to recover such damages, and if so the amount thereof, shall be made by agreement between the Insured or such representative and the Company, or, if they fail to agree and the Insured so demands, by arbitration.” (Emphasis added.)

Likewise, the arbitration clause was conditioned:

“If any person making claim hereunder and the Company do not agree that such person is legally entitled to recover damages from the owner or operator of an uninsured automobile . . . .” (Emphasis added.)

The uninsured-motorist coverage came into existence to furnish a solution to the problem of the financially irresponsible motorist and the demand for a solution of the problem of compensating the innocent victim injured as a consequence of the negligence of this uninsured motorist who was financially incapable of responding in damages for the injuries so caused.

The effect on such uninsured-motorist clauses of statute of limitations, survival of actions statutes, and limitation provisions in wrongful-death statutes has been the subject of much conjecture and of specialist articles (see Insurance Counsel Journal, January, 1962, p 127, et seq.).

Assuredly, as held in the Flood case, supra, the issue of liability of the uninsured motorist to the insured is one of the issues which the arbitrator was to consider. The essential question in the instant cases, therefore, was whether claimant was “legally entitled” to recover damages from the owner of the uninsured automobile.

Appellants contend that the ten-year written-contract statute of limitations is the only limitation statute applicable to these awards as the claims are based upon the insurance contractual provision. Appellee contends, and the trial court held, that the two-year limitation time for commencing a wrongful-death action bars the claim, as claimant would not be “legally entitled” to recover from the owner or operator of the uninsured automobile since the claim was not commenced within two years after the deaths involved.

It is evident that the awards were based upon wrongful deaths and that the demands for arbitration were made approximately three years from the date of the accident and deaths.

The Illinois courts consistently have held that the right of action for wrongful death is wholly statutory and that the provision in the statute creating the right that requires the action to be brought within the specified time is a condition attached to the right to sue and is not merely a statute of limitations. Hartray v. Chicago Rys., 290 Ill 85, 124 NE 849 (1919). This is unlike a general statute of limitations which may serve as a defense to an action which a defendant may interpose or waive as he sees fit, but it is a condition of the statute of any right to liability whatsoever.

Thus, in Wilson v. Tromly, 404 Ill 307, 89 NE2d 22 (1949), a counterclaim filed for wrongful death after the then one-year statutory time in an action for wrongful death brought within the one-year period, was held barred.

In Fitzpatrick v. Pitcairn, 371 Ill 203, 20 NE2d 280 (1939), receivers for defendant railroad company, who were such at the time the original suit was filed, were not permitted to be substituted for the railroad company after the statutory limitation period had expired.

We have not had cited to us nor do we find any cases passing on the specific point here involved. The cases cited by appellants of Application of Ceccarelli, 204 NYS 2d 550 (1960), Application of Traveler’s Indemnity Co., 226 NYS2d 16 (1962), Schleif v. Hardware Dealer’s Mut. Fire Ins. Co., 404 SW2d 490 (1966), and others, do not persuade us that we should depart from the long line of Illinois cases interpreting the two-year requirement of suit in a wrongful-death case as a condition of liability. Those cases involved statutes which were only statutes of limitations.

It is manifest that when appellants filed their demands for arbitration, no cause of action for wrongful death existed. At that time they were not “legally entitled” to recover damages from the owner or operator of the uninsured automobile within the meaning and requirements of the policy endorsement. Hence, as a matter of law, no cause of action existed and the arbitrator had no power or authority to do anything but deny the claims. The awards made by the arbitrator exceeded his power. The circuit court properly vacated the awards.

Judgments affirmed.

TRAPP, P. J. and SMITH, J., concur.


author: MR. JUSTICE SEIDENFELD

text:
    LaVerne Murphy, Administratrix of the Estate of La Wana Murphy, Deceased, Plaintiff-Appellant, v. Harvey J. Vodden, Defendant-Appellee.
    Gen. No. 68-164.
    Second District.
    May 28, 1969.

      Joseph A. Rosin, of Chicago, for appellant.
    Matthews, Jordan, Dean and Suhler, of Aurora, for appellee.
   MR. JUSTICE SEIDENFELD

delivered the opinion of the court.

A verdict was directed for the defendant at the close of plaintiff’s evidence in a suit for wrongful death. The plaintiff appealed on the theory that the court erred in finding in favor of defendant, as a matter of law, on the issues of contributory negligence, proximate cause and defendant’s freedom from wilful and wanton misconduct.

The accident occurred on March 9th, 1965, shortly after 10:00 p. m. on North Avenue (Illinois State Route 64) at or near its intersection with Edgewood. North Avenue is a four-lane highway with two eastbound and two westbound lanes separated by a double yellow line. There are shoulders abutting the paved portion of the highway.

On the evening of the accident it was cold, and the moisture left on the pavement from a day of thawing had apparently frozen to a glaze, making the road surface slippery in the vicinity of the accident.

The decedent, LaWana Murphy, had left her employment, located on North Avenue approximately five blocks east of the scene of the occurrence, shortly after 10:00 p. m., and proceeded in a westerly direction on North Avenue.

Florence Adkins, a co-worker of the decedent, testified that she was a passenger in a car driven by her father westbound on North Avenue and directly behind the Murphy car. She testified that shortly after leaving the place of her employment, because of extremely slippery conditions, her father slowed down to a speed of ten or twelve miles per hour. He was traveling in the inner lane. The Murphy car was two or three car lengths in front of her father’s car, also traveling at approximately ten to twelve miles per hour in the outer lane. The Murphy car slid from the outer lane into the inner lane in front of her father’s car, at which time her father took his foot off the gas and slowed down to about eight miles per hour. The Murphy car similarly slowed down. The Murphy car then went into the outer lane, continued for a short distance, then went out of control again and slid all the way across the eastbound traffic lanes of North Avenue onto the south shoulder of the highway, and came to a rest fully off the paved portion of North Avenue. She observed the position of the Murphy car as her father passed. Her father then proceeded in a westerly direction at a speed of eight to twelve miles per hour, and after going approximately three or three and one-half blocks she heard a loud crash.

On cross-examination, the witness admitted that she had given defense counsel a court reporter’s statement in which she said that she was in a vehicle behind that of decedent; and that she watched decedent’s automobile slide out of control into the eastbound traffic lane where she saw defendant’s automobile strike the vehicle of decedent. In the statement she then proceeded to describe how the collision rocked decedent’s vehicle and pushed it sideways.

The explanation offered by the witness as to why she had told a different story of what she witnessed in plaintiff’s case was that she “was not under oath” when she gave the statement to defendant’s counsel.

Jim Stockham testified that he was traveling westbound on North Avenue and the Murphy car was two or three cars in front of him. He testified that the highway was extremely slippery and he was compelled to travel at a very slow rate of speed. He noticed the Murphy car swerve completely across the eastbound traffic lanes. As he passed the Murphy car it was his impression that the car was almost completely on the south shoulder of the highway. He proceeded in a westerly direction and after traveling approximately a block and a half heard a loud crash. Mr. Stockham was a fellow parishioner of decedent and decedent’s family in a local church.

The investigating police officers, Fred Duwrant and Clarence Mack, testified that they received a radio call shortly after 10:00 p. m. relative to the accident. At that time they were west of the scene of the accident and proceeded on North Avenue in an easterly direction. As they approached from the west at some distance North Avenue was relatively dry, but approximately five blocks from the scene North Avenue was covered with a glaze of ice and became exceptionally slippery so that the officers were compelled to proceed to the scene of the accident for this five-block distance at a very slow rate of speed.

When they arrived on the scene they found the two automobiles, the occupants having already been taken to the hospital. They testified that the Murphy car was completely on the south shoulder of the highway facing in a southerly direction and the right side thereof was caved in and the car completely demolished. The Vodden car was also mainly off the highway, and the left rear portion and wheel was on the roadway. Extensive damage was shown to the left front end.

The officers also testified that they found debris on the south shoulder of the highway and the southernmost edge of the outer eastbound traffic lane.

Deputy Duwrant testified that, in his opinion, the impact occurred in the outer eastbound traffic lane.

Robert Quackenbush, a tow truck operator, corroborated the officers’ testimony as to the location of the cars on the shoulder of the highway and the finding of debris on the shoulder of the outermost edge of the eastbound traffic lane.

The defendant, Harvey J. Vodden, was called under section 60. He testified that approximately four blocks west of the accident scene he had been traveling forty to forty-five miles per hour; that when he first observed the Murphy car he slowed to thirty miles per hour. He first noticed the Murphy car crossing the center line of the inner eastbound lane when it was 100 feet away. He applied his brakes when he was about 50 feet away from the point of impact. His speed when he applied his brakes was thirty miles per hour. He further testified that his car did not slide when he applied his brakes.

Vodden placed the impact in the outside eastbound traffic lane near the south shoulder of the highway and testified that decedent’s car was moving in a southwesterly direction across the eastbound traffic lanes at the time of the impact. He denied that decedent’s car was standing still near the east edge of the pavement at the time of the impact.

On examination, Vodden was confronted by his deposition wherein he testified that, at the time of the accident, both cars were off the pavement and on the shoulder of the highway, and he further testified that at the time he was so deposed that is where he thought the accident had happened.

Both parties seek support in the Pedrick rule. (Pedrick v. Peoria & Eastern R. Co., 37 Ill2d 494, 229 NE2d 504 (1967).)

This, of course, involves a determination of whether all the evidence, when viewed in its aspect most favorable to the plaintiff, so overwhelmingly favors the defendant, that no contrary verdict based on the evidence could ever stand.

The rule, however, does not allow the trial court to substitute its judgment for that of the jury, if there is any substantial factual dispute. Pedrick, supra, at page 504. The issues of negligence, contributory negligence, or willful and wanton misconduct may be proven by facts and circumstances from which such conduct may be reasonably inferred; and if both the facts and the inferences to be reasonably drawn therefrom could support a verdict under the Pedrick rule, the trial court may not direct a verdict. Larson v. Harris, 38 Ill2d 436, 440, 231 NE2d 421 (1967); Luker v. Contract Steel Carriers, Inc., 103 Ill App2d 296, 306, 243 NE2d 6 (1968).

We first approach the question of whether LaWana Murphy was guilty of negligence as a matter of law which contributed to her injury and resulted in her death. It is undisputed that the decedent slid across the center line of the roadway. There is no explanation for this conduct other than the fact that the surface of the roadway was icy. A number of recent cases have held, that when a car collides with that of another in the lane of traffic where the other has a legal right to be, there is a duty to show that the car in the wrong lane is there due to some reason other than his own negligence. This is additionally supported by evidence that other cars passing at the same time were under sufficient control to remain in their own lane. Sughero v. Jewel Tea Co., 37 Ill2d 240, 242, 226 NE2d 28 (1967); Nikkinen v. Evans, 90 Ill App2d 438, 441, 232 NE2d 774 (1967) and Calvetti v. Seipp, 70 Ill App2d 58, 63, 64, 216 NE2d 497 (1966).

Under the facts and circumstances we do not find merit in plaintiff’s argument that decedent’s action was not an act of negligence as a matter of law.

The plaintiff contends, however, that even if LaWana Murphy were to be considered negligent in sliding into the wrong lane of traffic, such negligence abated when the car was stopped off the road on the shoulder, and was not the proximate cause, therefore, of the accident. Plaintiff further urges that there is substantial evidence that the cause of the accident was the defendant’s sliding off the highway, failing to keep a proper lookout, and traveling at a grossly unreasonable rate of speed, taking into consideration the prevailing circumstances and the condition of the highway.

In this connection, we note the testimony of Florence Adkins that at the time the car in which she was riding passed the Murphy car, that car had completely crossed the highway and was stopped facing south on the south shoulder. She did not see the accident but heard the crash after they had proceeded three or three and a half blocks. We note also that in cross-examination this witness was confronted with her previous statement that indicated she saw the actual collision as an eyewitness. While the previous statement made no reference to where the accident happened, that is, on the shoulder or on the road, the trial court could well have considered her testimony highly equivocal in view of her prior inconsistent statements as to what she did actually observe. See Pedrick, supra, page 511; Dimitrijevic v. Chicago Wesley Memorial Hospital, 92 Ill App2d 251, 262-3, 236 NE2d 309 (1968).

Stockham’s testimony that the Murphy car was stopped “mainly off the road,” (“I would say most of it was off”) offers evidence that the Murphy car was partly off, partly on the highway and that it was stopped when Stockham passed before the collision.

The deputies who arrived at the scene and the tow truck operator observed debris, we note, on the south shoulder of the highway and on the south side of the outer eastbound traffic lane. All of these witnesses placed the Murphy car completely off the highway on the shoulder when they arrived, after the collision.

Defendant Vodden’s testimony, under section 60, that the impact took place in the eastbound lane near the shoulder was sought to be impeached by his statement on deposition that both cars were off the pavement when the accident occurred. He admitted on the witness stand, “that is what he thought at the time.” He explained that the question asked at the deposition was whether “some part” of the Murphy car was on the shoulder when the collision occurred; and that he had also testified at the deposition that “at the time of the impact we were half-way off.” Viewed as a whole, Vodden’s testimony was not equivocal on the material issue of the cause of the collision.

It was further brought out that Vodden’s testimony at the deposition was that the Murphy car was sliding across the road in a southwesterly direction when the impact occurred as he was moving east. This testimony by the only eyewitness to the collision, although an interested party, appears to be the only reasonable explanation of how the accident happened, considering all of the testimony and the physical facts in aspect most favorable to the plaintiff. That there was some factual dispute as to exactly where the impact occurred is not material when the record is viewed in its entirety under the Pedrick rule.

The plaintiff is bound by the testimony of the adverse witness to the extent it stands uncontradicted and unrebutted. Kapraun v. Kapraun, 12 Ill2d 348, 355, 146 NE2d 7 (1957).

While Stoekham testified that the Murphy car was stopped when he passed it and that he heard the sound of the collision when he had gone one or one and one-half blocks, he did not see the cars at the moment of impact. This testimony alone would not be sufficient to sustain the plaintiff’s burden of proving that the decedent’s legally unexplained presence, at least partially, in the wrong lane of travel, was merely a condition and not the proximate cause of the collision.

Also, the trial court could properly consider the impeaching statement of Florence Adkins as corroborative of Vodden’s testimony that the impact occurred as the Murphy car slid out of control in defendant’s lane of travel; corroborated also by the physical evidence.

Considering all the evidence in its aspect most favorable to the plaintiff on the questions of negligence and proximate cause, we are of the opinion that the evidence so overwhelmingly favors the defendant on these issues that no contrary verdict based on the evidence could stand. The trial court was correct in directing a verdict for the defendant on the issue of plaintiff’s contributory negligence.

We also are of the opinion that the trial court correctly found, as a matter of law, that the defendant was not guilty of willful and wanton misconduct, sufficient to overcome the negligence of plaintiff’s decedent.

It is true that Vodden’s testimony under section 60 as to the extent of the icy conditions was contrary to the testimony of all other witnesses and that he admitted to speeds of forty down to thirty miles an hour before braking, when all other testimony showed the necessity for markedly slower speeds and the need for an extremely cautious approach to the scene because of the icy condition. But we believe that this was insufficient to create a jury issue that the defendant had been conscious his conduct would probably result in injury to anyone, or that he exhibited a conscious or reckless indifference to the consequences of his acts, as required under the cases. Bernier v. Skripek, 86 Ill App2d 118, 128, 229 NE2d 890 (1967).

The judgment of the court below is affirmed.

Affirmed.

ABRAHAMSON and DAVIS, JJ., concur.


author: GEORGE J. MORAN, J.

text:
    Deanna M. Akin, Plaintiff-Appellant, v. Robert F. Akin, Defendant-Appellee.
    Gen. No. 68-66.
    Fifth District.
    May 26, 1969.
    Rehearing denied June 25,1969.

      Sprague, Sprague & LeChien, of Belleville (John R. Sprague and Thomas A. LeChien, of counsel), for appellant.
    Robert E. McGlynn, McGlynn & McGlynn, of East St. Louis, for appellee.
   GEORGE J. MORAN, J.

Plaintiff, Deanna M. Akin, appeals from a divorce decree of the Circuit Court of St. Clair County, awarding her husband, Robert F. Akin, custody of Sheila Akin, the minor child of the parties. She also appeals from a denial of her petition to modify the decree so as to grant her custody of Sheila. These appeals have been consolidated in this court for review.

Plaintiff filed a complaint for divorce on February 15, 1967, charging defendant with extreme and repeated cruelty and asking for custody of their seven-year-old minor child, Sheila. Defendant filed a counterlcaim for divorce and asked for custody of the child. Both plaintiff and defendant alleged that they were separated November 22,1966. The trial of this cause commenced on March 16, 1967 and at the conclusion of the hearing on that date, the defendant withdrew his counterclaim for divorce and the parties agreed to a stipulation as to the property rights between them whereby plaintiff waived all right to alimony or support for herself and agreed to pay all of her own costs and attorney’s fee. The only matter left in dispute was the final custody of Sheila and therefore our discussion of the evidence will be confined to that issue.

TESTIMONY

March 16,1967 Hearing

Deanna Akin, plaintiff, testified that Sheila had been residing with plaintiff’s mother and father in Collinsville, Illinois since the November 22, 1966 separation; that defendant was never close to Sheila and that he never had time for her when she wanted him to read or play with her; that he had a habit of looking at pictures of nude women in front of Sheila and leaving them lie around the house and when she would complain to him about this he would say, “She has to learn some day, anyway.” She also testified that her husband drank a lot, causing his temper to become uncontrollable and that he had beaten her at various times. She further testified that Sheila had improved quite a bit since the separation, was not nearly so nervous as she had been, and seemed happy in her new surroundings; that Sheila had been held back a year in school while living with plaintiff and defendant, but her grades had improved and she had been attending school regularly since November of 1966.

On cross-examination plaintiff testified that she had lived with her sister and her sister’s husband for about five weeks immediately after the separation; that she then went to Sparta, Illinois, where she stayed with a friend for about a week until she got her own apartment which she has had since about December. She stated that she had not worked since the separation. She also testified that it was possible that she, herself, could have been partially responsible for the nervousness of the child; that she had been in Alton State Hospital for a couple of weeks and had been treated for nervousness for the past two years. She said that the reason her daughter lost a year in school was because she had been sick and absent.

The trial judge asked plaintiff what plans she would make if the custody would be awarded to her. She answered that she had been looking for work and had just moved back with her mother and father the past week. She had not been looking for work in Collinsville where her mother and father live, but rather in Sparta.

Robert Akin, defendant, was called under Section 60 and testified that he had spanked his daughter only three times in her life and then only to correct her; that he had never beaten her, just spanked her. He further stated that his wife had been sick quite often with nervous disorders throughout their married life; that he had a good job and a three bedroom mobile home and that if awarded the child he intended to have his eighteen year old niece, who had a five months old baby, live in his home and take care of Sheila.

At the conclusion of this hearing, the court entered the following order:

“Defendant’s counterclaim for divorce withdrawn. Cause heard. Divorce granted to plaintiff on grounds of cruelty. Custody of minor child to remain with Lorena Elliott, grandmother, pending investigation in re final custody of minor child.
ENTER: Francis E. Maxwell
Judge of the Circuit Court”

August 17,1967 Hearing

Deanna Akin testified again and stated that at times her husband displayed affection for the child and at other times did not bother or want to be bothered; that he was not home very much; that he was generous with Sheila at times and at other times he was not; that her husband quarreled often with her mother and did not want her mother to keep the child; that she had seen Sheila every Sunday and had called her throughout the week while she, was living in Sparta; that since Sheila has resided with her mother, she is much better and is now happy and well contented.

Robert Akin also testified again and said that he was thirty-four years of age and lived at the Santa Barbara Trailer Court on Route 50 in French Village with his mother who had been there about four months; that he had a three bedroom trailer which he was buying on payments; that he had been a switchman for the Burlington Railroad for about ten years and was earning $130 per week working straight days. He stated that when he and the plaintiff lived together, Sheila was very nervous and in his opinion this was caused by her mother who was always nagging at her. He further stated that he and the plaintiff did not get along very well and that they quarreled constantly; that he had a lot of affection for Sheila and had suitable living quarters for her; that he had not visited her for the past couple of months because of his mother-in-law with whom he had never been very friendly; that he was dating a woman who had two children. His mother, who was separated from her husband and had been living with him since just after the March hearing would assist in taking care of Sheila.

Mrs. Lorena Elliott, the mother of Deanna and the grandmother of Sheila, testified that Sheila was living with her at 1311 Leland Street, Collinsville, Illinois; that she had another daughter, Cathy, fifteen; that her husband worked out of a construction local and they had a three-bedroom home; that Sheila had been with her since last November and had gone to school since that time; that her performance in school had been good and she was no longer nervous; that she would be forty-five soon and her husband would be fifty-two in September; that her husband earned about $150 per week and he loves Sheila as his own; that they were keeping the child because the mother and father had brought Sheila to them until they could find out what they were going to do; that she did not have occasion to visit her daughter and husband’s home often inasmuch as they would bring Sheila to her home because “they were gone a lot.”

Mrs. Elliott went on to say that neither plaintiff nor defendant had much patience with the child, “I don’t want to hurt anyone, but I did feel sorry for Sheila. They were always hollering at her when she wanted something to eat. When you are sick you don’t have patience. That child was just starved all the time. They just didn’t let her do things like a child should.” She also stated that the child wanted to live with her all the time; that plaintiff and defendant would bring the child to her home frequently when Sheila was sick or for some other reason; that Sheila stayed with her mother quite often and that her mother stayed at plaintiff and defendant’s home when Deanna was sick and took care of Deanna and Sheila.

She further testified that the plaintiff did not presently have a large place to keep Sheila, just a sleeping room in Sparta where she was working; that Sheila was now in good health; that she had taken Sheila for her tetanus shot and that the child was doing very well. She also stated that she was not asking to have custody of the child awarded to her but that she would be glad to take her if it was the court’s decision.

Leona Littel, the grandmother of Deanna Akin and the mother of Mrs. Lorena Elliott, testified that Sheila lived under intolerable conditions when residing with plaintiff and defendant; that the child was very nervous, upset and unhappy because there was no peace in the family and that Sheila’s condition was the fault of both plaintiff and defendant. She further testified that Deanna had been and still was a sick person; that Sheila’s condition had been considerably improved during her stay with Mrs. Elliott.

Robert M. Crabtree, the court’s witness who was a youth counselor and probation officer for the Courts Service of St. Clair County, then testified that he had investigated the condition of the properties of the Elliotts and Robert Akin and that both properties were suitable for the raising of a minor child. However, he did not make any recommendation as to custody of the child.

December 21, 1967 Hearing

The trial judge announced at the commencement of this hearing that he had been puzzled about the matter and apologized for putting off a decision for as long as he had. He stated that he had written a letter to the lawyers telling them that the custody of the child should be vested in the defendant, but then had received a petition for rehearing and for additional testimony from a new lawyer who said he now represented the plaintiff. He further stated that he would not sign the order until he heard the additional testimony.

Deanna Akin testified that she wanted custody of the child and always had wanted custody; that she was then employed at Weber’s Steak House in Sparta, which is a restaurant where they do not serve liquor; that she was earning $45 a week plus tips; that she had rented for $85 a month a three room furnished apartment in Sparta about five blocks from work and four blocks from school; that she was also attending high school two nights a week, studying math, history, English and science; that she had been living in the new apartment only since the previous week; that she had been told by her lawyer and the trial judge that she did not have to make arrangements about an apartment before that time.

Robert Akin testified that under Section 60 that he was now married to Carlene Sullivan Oliver and had been married since the spring of 1967; that Carlene had a boy six years of age and a girl, nine, and that they went to school on a school bus; that he had not seen Sheila for two or three months because of disagreements with his mother-in-law.

Sheila Akin was also called to the stand during this hearing. She stated that she loved both her father and mother, but would rather live with her mother because her mother was good to her and bought her things.

On January 19, 1968, the court entered a final decree awarding custody of the minor child to defendant. Plaintiff filed a post trial motion which was denied after a hearing on March 7,1968.

OPINION

Both parties agree that the determinative factor in awarding custody of a minor child is the best interest of the child. The guiding star is and must be, at all times, the best interests of the child. Nye v. Nye, 411 Ill 408, 105 NE2d 300. It is thus the rights of the child and not the rights of the parents which are to be decided.

Our Supreme Court in Nye v. Nye, supra, at page 414 further specified how the best interests of the child are to be discerned:

“Under our divorce statute the court is clothed with a large discretion in determining to which parent a child will be given. It is usual in such cases, due to the tender years of the child and in consideration of its best interests, to entrust its care and custody to the mother, she being a fit and proper person to rear the child. (Miner v. Miner, 11 Ill 43; Draper v. Draper, 68 Ill 17.) The maternal affection is more active and better adapted to the care of the child. Especially is this true in the case of a minor daughter, where the care and guidance of a mother’s hand is doubly important. This principle has become so well fixed and followed in this State that this court has not in recent years been called to rule upon it. Therefore, compelling evidence must be presented, proving the mother to be an unfit person, to cause the custody of her minor daughter to be denied her or, there must be a positive showing that to deny custody to the mother would be for the best interests of the child.”

The Nye case thus not only establishes the general rule that it is the best interests of the child which must be determinative in child custody cases, but also establishes the corollary that these best interests are served by awarding custody to the mother. This corollary can be upset only by compelling evidence proving the mother to be unfit or by a positive showing that a denial of custody to the mother would be in a child’s best interests.

In the instant case the trial court in a letter sent to counsel on both sides, specifically found that Deanna was a fit person for the care of the minor child. A determination of this case must therefore turn on whether there can be said to be a positive showing that the best interests of the child would be served by denying plaintiff custody.

Plaintiff has strongly urged application of the Nye doctrine because she claims that the necessity of her maternal influence is particularly relevant in this case, as it will be in the next few years that this child will begin to develop into a woman, and that the child should not be placed in a situation in which the only female counseling she will receive during this critical stage of her life will be from a person who is a total stranger, namely, defendant’s new wife.

We agree with plaintiff’s contention as to the manner in which it expresses the basic understanding of why the Nye doctrine was evolved, but we still must persist to determine if there was a positive showing that the denial of custody to her was in the child’s best interests.

It was the trial court’s finding that plaintiff lacked sufficient interest in the minor child. This finding was based on the fact that plaintiff did not acquire quarters which were adequate for the raising of a minor child until one week before the December hearing and the trial court’s understanding the plaintiff was seeking an award of custody for her mother rather than for herself.

Plaintiff contends that the trial court’s finding that she lacked interest in acquiring custody of her child was an improper consideration and against the manifest weight of the evidence. She argues that the reasons she had not acquired suitable quarters until recently were that she could not afford such quarters and that she had been told by her lawyer and the trial judge that such facilities were unnecessary until such time as custody would be awarded to her. It is unjust and illogical, she contends, to expect a woman who had previously totally relied upon her husband for financial stability to be able to support a family by herself, immediately subsequent to a divorce with no aid from her husband. She further points out that if she had been awarded custody, defendant would have been obliged to provide for support, thus enabling her to acquire sufficient funds to properly provide for her daughter.

Plaintiff also argues that the trial court’s feeling that she wanted her mother to have custody of the child was a misconception and was improper because the hearings were to determine custody only as between parties to the suit. She also reasons that the mere fact that she enlisted counsel to petition the court for custody of her daughter is indicative of her interest.

Defendant’s answer to plaintiff’s arguments consists of continued references to her lack of suitable facilities for the care of a minor child. It is defendant’s position that plaintiff’s lack of suitable quarters can only be attributed to her lack of interest in the minor child.

Defendant also argues that the trial court was correct in concluding that the plaintiff was seeking custody of the child for her mother. He says that this can be seen in the manner in which plaintiff testified that the child was getting along so well and progressing so well now that the child was under Mrs. Elliott’s care. Also, plaintiff’s witness, her grandmother, directed her testimony to the well-being of the child living with Mrs. Elliott.

Defendant points out that it was only when plaintiff learned that the child was in fact to be taken from Mrs. Elliott and custody given to him that she became so aggressive in seeking new quarters and custody of the child. He therefore maintains that it was only plaintiff’s hatred for him rather than her maternal instinct which prompted her to change her course of conduct in less than a week.

After carefully reviewing the evidence and arguments in this case, we find it impossible to say that there is a positive showing that the best interests of the child would be served by denying plaintiff custody. We cannot resist the argument that plaintiff was simply financially unable to obtain suitable living quarters for the child. It is extremely difficult for a divorced wife who had previously only served as mother and housewife to adjust to the economic burdens which are suddenly placed upon her. This is especially so when the wife is receiving no alimony or support from her husband. In this regard, plaintiff’s failure to obtain suitable quarters is only a positive showing of one of the economic realities of our society and is not sufficient, standing alone, to indicate her lack of interest in her child.

We are also not convinced that plaintiff was not seeking custody of the child for herself. That she testified that the child was getting along so well with Mrs. Elliott indicates nothing more than the truth. We cannot fault plaintiff for being content while Mrs. Elliott had custody because it was during this period that Sheila began to develop normally and that Sheila’s prior nervous condition began to disappear. Allowing her daughter to remain in such an environment may have been nothing more than an unselfish act on the part of plaintiff. Accordingly, it was only natural for plaintiff to react when she learned that defendant was to be given custody. She did not wish for her daughter to be removed from surroundings where the child was happy and was progressing so well and placed in a home where she felt the child would not be happy and where her progress would be hindered. The aggressive efforts of plaintiff in December, 1967 are understandable in view of the nature of a change of custody from Mrs. Elliott to defendant. Not only would the child have to adjust to a new home, she would have to adjust to a new stepmother, stepsister and stepbrother. She would be forced into a situation where she would have to compete with two natural children for the love and counsel of their mother.

Then too, there was no showing at any of the hearings that Sheila’s interests would be better served by awarding custody to the father who at the first hearing testified that his eighteen-year-old niece, who had a five-months-old baby, would care for Sheila. At the second hearing his niece had moved, but his plans were for his mother, who was in the process of getting a divorce, to care for Sheila. Finally, at the third hearing defendant was married to a woman with two children of her own and it was his intention for her to provide the maternal guidance necessary for his daughter.

There is no doubt that the discretion of the trial court in custodial awards is subject to review. Cohn v. Scott, 231 Ill 556, 83 NE 191. However, it is difficult to reverse a trial court’s decision because he is in a far better position to assess the demeanor of the parties and to judge their emotional stability. We are especially reluctant to reverse the instant decision because of the emotional impact another change of custody may have on this minor child. However, we are unable to say that the requirement of a positive showing that the best interests of the child would be served by denying plaintiff custody has been met.

For the foregoing reasons the order of the trial court of St. Clair County awarding the care, custody and control of Sheila Akin to the defendant is reversed and this case is remanded to the trial court for further proceedings not inconsistent with this opinion. However, the trial court is directed not to transfer the custody of Sheila until this judgment becomes final.

Our view of the case makes it unnecessary to consider arguments relating to a denial of plaintiff’s petition to modify the custody decree.

Reversed and remanded.

GOLDENHERSH and EBERSPACHER, JJ., concur.