author: MR. JUSTICE THOMAS J. MORAN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Frank Witt, Defendant-Appellant.
    Gen. No. 69-154.
    Second District.
    April 13, 1970.
    Donovan, Dichtl, Atten, Mountcastle and Roberts, of Wheaton, for appellant.
    William V. Hopf, State’s Attorney of DuPage County, of Wheaton, and Frank J. Petru, Assistant State’s Attorney, for appellee.
   MR. JUSTICE THOMAS J. MORAN

delivered the opinion of the court.

The defendant, Frank Witt, was charged with the offense of driving under the influence of intoxicating liquor (Ill Rev Stats 1967, c 95%, § 144). After a bench trial, he was found guilty, fined $100 and assessed $25 in costs.

The sole issue on appeal is whether the evidence introduced supports a finding of guilty beyond a reasonable doubt.

The State introduced the testimony of two police officers. The arresting officer, Farina, testified that he first noticed the defendant driving northbound on Route 53, in the southbound lane of traffic; that he proceeded to follow and while doing so he observed that the defendant’s vehicle was approximately three feet behind a vehicle in front of it and still weaving into the southbound lane; that the defendant then passed the other vehicle and attained a speed of 70 m. p. h. for a distance of two blocks; that the speed limit at this location was 45 m. p. h.; that he then turned on his vehicle’s red lights and attempted to stop the defendant; that the defendant slowed his car to 45 m. p. h., but did not stop; that he pulled alongside of the defendant’s vehicle and motioned the defendant to stop, but he did not; that in the meantime, he radioed for assistance and continued to follow; that when another squad car arrived, Farina pulled in front of the defendant’s vehicle and the second squad car pulled behind the defendant’s car; that he slowed his squad car down and was able to stop the defendant; that he approached the defendant and ordered him out of his car; that defendant alighted from his car and started to walk toward him, staggering from side to side, and was told to remain by his vehicle; that, at this time, while talking to the defendant, he noticed that defendant’s eyes were dilated and observed a strong odor of alcohol on his breath; that he advised defendant of his rights and placed him under arrest; that he handcuffed the defendant, placed him in his squad car and drove to the police station with the second squad car following; that upon arriving at the station, the defendant was let out of the squad car and, as he walked toward the station, he was staggering from side to side; that Farina and the other officer, Bonnell, had to assist by holding the defendant under each of his arms; that upon questioning, the defendant related that he had drank eight beers; that he had commenced drinking at about 7:30 p. m. (the arrest occurring at approximately 10:30 p. m.); that he had eaten breakfast that morning; and that, in the officer’s opinion, the defendant was under the influence of intoxicating liquor. On cross-examinatian, the officer stated that no breathalizer test was administered and that the defendant denied being intoxicated.

Bonnell testified that after receiving a radio call for assistance, he came upon the Farina vehicle which was in pursuit of the defendant; that they were able to maneuver their vehicles so that the defendant’s vehicle was between the squad cars, enabling them to stop the defendant’s vehicle; that when defendant got out of his car, he was unsure of his balance; that he was fumbling when attempting to produce his driver’s license; that, after being arrested and handcuffed, he walked to the squad car and, again, his balance was unsure and he was assisted into the vehicle; that, at the police station, defendant was staggering and became loud and boisterous; that he overheard the defendant, in reply to Farina’s questions, state that he had eight beers; and that, in his opinion, the defendant was under the influence of intoxicating liquor. On cross-examination, the officer admitted that he was mistaken when he testified that the defendant removed his driver’s license from his pants pocket because Farina procured the defendant’s license from the glove compartment of his car.

Three witnesses were called by the defense. The first witness, Butler, testified that, in addition to his regular employment, he had been in the police reserve for ten years; that he was called to the police station by a friend to take the defendant to his car, which had been left at the scene of the arrest; that he knew the defendant; that he arrived at the station about 12:15 a. m.; that he did not notice anything unusual in the defendant’s speech or walk; that in his opinion the defendant was not intoxicated; that he received the keys to the defendant’s car, turned them over to defendant who then drove his car home. On cross-examination, he testified that Farina gave the defendant’s car keys to him and told him that he could “do as I saw fit” with them and he denied that the officer warned him not to let the defendant drive his car.

The next defense witness, Burger, testified that he had known the defendant for 11 years, that on the night in question, he received a telephone call from the defendant requesting that he drive the defendant or come to the station and assist him by way of bond “or someway”; that he called Butler; that he did not notice anything unusual in the defendant’s speech over the phone. There was no cross-examination of this witness.

The third witness called by the defendant was one Hittner. He testified that he and the defendant played 18 holes of golf together that day, finishing about 7:00 or 7:30 p. m.; that he and the defendant had several beers after their game, then took a sauna bath and shower and had dinner; that the defendant did not have anything to drink during dinner and they parted company about 10:00 p. m. and that, at that time, defendant was not under the influence of alcohol.

The defendant testified that, prior to playing golf, he had not had any intoxicating beverages but after finishing his game, he did have two to three beers before dinner; that prior to taking a sauna bath, he took a couple of Coricidin tablets to ward off a cold and that during dinner and thereafter, he did not imbibe in any any alcoholic beverage. The defendant denied that he was intoxicated, exceeded the speed limit or traveled in the wrong lane. He stated that when the squad, with its red lights flashing, pulled alongside of him, he immediately stopped; that he got out of his vehicle, was “frisked and handcuffed” and taken to the police station; and that he requested to make a phone call but was refused. On cross-examination, he admitted telling the officers that he had eight beers and that two squad cars participated in his arrest.

The State recalled Farina in rebuttal. He related that he turned the defendant’s car keys over to Butler with instructions that defendant was not to drive his car and that they had already called the State police and reported to them that defendant’s car would be parked along the roadside but would be picked up the following morning.

The most that can be said of the evidence introduced at the trial on the issue off intoxication is that it was conflicting. It became the duty of the trier of facts to determine the credibility of the witnesses and the weight to be given to the testimony of each and, after doing so, to arrive at a judgment. We are of the opinion, after a reading of the entire record, that the trial court did so, and arrived at a correct conclusion.

Where the evidence is merely conflicting, a reviewing court will not substitute its judgment for that of the trier of facts. The People v. Clark, 30 Ill2d 216, 219, 195 NE2d 631 (1964); People v. Cooksey, 119 Ill App2d 85, 255 NE2d 22 (1970); People v. Miller, 101 Ill App2d 361, 364-365, 243 NE2d 277 (1968). See also People v. Haney, 95 Ill App2d 1, 8, 238 NE2d 110 (1968).

Judgment affirmed.

DAVIS, P. J. and SEIDENFELD, J., concur.


source: Caselaw Access Project

author: MR. JUSTICE ABRAHAMSON

license: Public Domain

text:
    Betty Wilson, Plaintiff-Appellee, v. Brooks Wilson, Defendant-Appellant.
    Gen. No. 69-209.
    Second District.
    April 13, 1970.

      Raymond T. Brasel, of Geneva, for appellant.
    Reese, Schlueter & Ecklund, of Rockford, for appellee.
   MR. JUSTICE ABRAHAMSON

delivered the opinion of the court.

This appeal is from the judgment of the Circuit Court of Winnebago County ordering the defendant, Brooks Wilson, to pay to the plaintiff, Betty Wilson, the sum of $1,985 in arrearages for child support. On December 18, 1968, a motion for rule to show cause why defendant should not be held in contempt of court for failure to make child support payments totaling $3,000 was filed by plaintiff, which motion was subsequently modified by further requesting a money judgment for arrearages in her behalf. Defendant filed a motion to strike or dismiss the amended motion of plaintiff, which was denied. An order was entered on August 23, 1969, denying plaintiff’s motion for rule to show cause, but judgment was entered for plaintiff and against defendant in the sum of $1,985 for arrearages. The defendant appealed.

The issue presented here is whether the defendant is obligated as a matter of law to pay child support for male children between 18 and 21 years of age.

Plaintiff and defendant were divorced on January 9, 1959; the decree was modified three times, the last order being entered on March 2,1962, as follows:

“D. That during the time that said minor children are in the care and custody of the plaintiff, the defendant shall and he is hereby directed to pay to the plaintiff for the care, support and maintenance of said minor children the sum of Ten ($10.00) Dollars per week per child, or a total of Thirty ($30.00) Dollars per week as and for child support the first such weekly payment being due and payable on the date of this order.”

The defendant made support payments until each of the two older boys, Jared and Jack, reached 18 years of age. Joel, the youngest son, is now 17 years of age and the parties stipulated that defendant was $305 in arrears for his support. On July 4, 1963, Jared attained the age of 18 years. He attended college in Iowa but continued to reside with the plaintiff summers, weekends, and vacations. The plaintiff paid for his clothing, insurance, other items, and contributed toward his college expenses. On November 11, 1966, Jack attained the age of 18 years. He attended college in his home town, except for a brief period, and then entered military service in July, 1969. The plaintiff maintained a home for him and paid his living expenses during that time. Both boys were employed part time.

The plaintiff testified that she and the two older boys had requested support for them from the defendant after he discontinued payments, and that she consulted an attorney about the arrearages and was advised to wait. She claims that since defendant failed to pay support during the three years prior to Jared’s 21st birthday, defendant owed $1,560 for his support; from the time Jack became 18 years of age and his entry into the military service, defendant should have paid $1,110 for his support; and defendant was $305 in arrears for Joel’s support; a total of $2,975 in arrearage.

Defendant contends that since no provision was made for the duration or termination of the obligation of child support, he should not be required to pay child support for male children between the ages of 18 and 21 years; or in the alternative, that if he is compelled to pay such support, his obligation should be modified with consideration for periods in which the children earned significant sums in employment, and that any payments should be made directly to the children or for their benefit. Defendant further contends that since plaintiff took no action to recover any sums alleged to be due her for almost six years, she should be estopped from asserting any claim on defendant; and that any sums recovered by her would be a “windfall” and unjust enrichment of plaintiff, since neither child resides with her at this time.

Defendant testified that he contributed more than $6,-095 directly to Jared and Jack during the years they were between 18 and 21 years of age.

The trial court held that defendant was responsible for the support of the children of the parties until they attained the age of 21 years; that under the evidence the plaintiff had not agreed nor acquiesced to the cessation of support payments by defendant when the boys reached 18 years of age, and had made requests for same as did the boys themselves; but that defendant’s failure to make payments in this case did not demonstrate any action requiring the exercise of the contempt powers of the court. The court further held that defendant can only be credited with a total of $990 toward contributions, the amount over and above any sums advanced to the children for college expenses, which are not necessarily limited nor ordered by the court; that plaintiff is entitled to the arrearage which defendant failed to pay prior to the dates of the emancipation of Jack and the majority of Jared and the current support of Joel, which total $2,975; but that equity does not require the award of costs and fees. Therefore, judgment was entered in favor of the plaintiff for the sum of $1,975.

The decree as last modified on March 2, 1962, provides for child support of said “minor” children, but defendant claims that the decree does not specifically state the duration or termination of the obligation of child support. He directs the court’s attention to section 32 of the Non-Support of Spouse and Children Act, (c 68, Ill Rev Stats 1967), and section 52 of the Uniform Reciprocal Enforcement of Support Act, (c 68, Ill Rev Stats 1967), and states that under these acts minority ceases upon a child having attained the age of 18. The NonSupport Act is a criminal act under which the State’s Attorney prosecutes when the provisions of that act are violated, and the Uniform Reciprocal Enforcement of Support Act provides for reciprocal action in other states and in matters where the Divorce Act is not applicable. Section 51 (c) of the Reciprocal Act limits the terms including the term “minor” to have the meaning given to them by that section. Chapter 68, section 57, Ill Rev Stats 1967, is as follows:

“This act shall be construed to furnish an additional or alternative civil remedy and shall in no way affect or impair any other remedy, civil or criminal provided in any other statute and available to the petitioner in relation to the same subject matter.”

Chapter 3, section 131, Ill Rev Stats 1967, provides as follows:

“Males of the age of 21 and females of the age of 18 shall be considered of legal age for all purposes . . . and until these ages are attained, they shall be considered minors.”

The Divorce Act, section 19, chapter 40, Ill Rev Stats 1967, provides as follows:

“When a divorce is decreed, the court may make such order touching the alimony and maintenance of the wife or husband, the care, custody and support of the children, or any of them as, from the circumstances of the parties and the nature of the case, shall be fit, reasonable and just and, in all cases, including default cases, the court shall make inquiry with respect to the children of the parties, if any, and shall make such order touching the care, custody and support and education of the minor children of the parties or any of them, as shall be deemed proper and for the benefit of the children.”

Defendant has cited no case to substantiate his contention that the definition of “minor” as contained in section 131, chapter 3, Ill Rev Stats 1967, does not apply. It is clear under Illinois case law that in a divorce action the liability of a spouse for support of a child continues during the minority of the child. (Crane v. Crane, 45 Ill App2d 316, 196 NE2d 27; Leland v. Brower, 28 Ill2d 598, 192 NE2d 831; Kelley v. Kelley, 317 Ill 104, 147 NE 2d 659.) It is our opinion that “minority” in divorce actions is determined by section 131, chapter 3, Ill Rev Stats 1967, namely, that males become of age when they are 21 and females become of age when they are 18 years of age.

Defendant states that plaintiff should be es-topped from asserting any claim of support as she had acquiesced to the termination of support at age 18, but this is not borne out by the record. In fact, the plaintiff and the sons made periodic demands for support after the sons had attained the age of 18, respectively. The defendant cannot terminate child support unilaterally as the decree is a continuing order. (Kaifer v. Kaifer, 286 Ill App 433, 438, 3 NE2d 886.) It is not for the defendant to decide when and for what reasons he shall stop support payments. (Trimble v. Trimble, 16 Ill App2d 408, 413, 148 NE2d 612.) Furthermore, it was held in Hurt v. Hurt, 351 Ill App 427, 431, 115 NE2d 638, that past due installments of alimony and support money are a vested right and that the court has no authority to modify them either as to amount or time of payment.

Defendant contends that a recovery now will be a “windfall” to the plaintiff because the two oldest children reached their majority some time ago and that she could use the money awarded her now for her own benefits. It is previously noted the cessation of child support payments were made against the will of the plaintiff. The law cannot be that if the defendant can avoid making timely child support payments, they are uncollectable after the child reaches his majority. The factual situation here precludes any valid defense of estoppel to assert the claim for child support. . Anderson v. Anderson, 48 Ill App2d 140, 147, 198 NE2d 342.

Finally, defendant maintains that even if it is determined that his sons were minors until the age of 21, he should nevertheless have a setoff for payments made by him for or to the benefit of his sons, and for the periods during which they earned significant sums in employment. The trial judge in determining the setoff to be allowed defendant gave him a credit of $990 against the amount owing under the divorce decree as modified. On the basis of the evidence submitted, we cannot say that the trial judge’s determination was erroneous.

The trial judge’s findings are sustained by the evidence and the judgment appealed from is affirmed.

Judgment affirmed.

DAVIS, P. J. and SEIDENFELD, J., concur.


text:
    County of Winnebago, a Body Corporate Politic, Plaintiff-Appellee, v. Lester E. Willsey and Juanita M. Willsey, Defendants-Appellants.
    Gen. No. 69-146.
    Second District.
    April 15, 1970.
    Rehearing denied May 21, 1970.

      John R Snively, of Rockford, for appellants.
    Philip G. Reinhard, State’s Attorney of Winnebago County, of Rockford, and Alfred W. Cowan, Jr., Special Assistant State’s Attorney, for appellee.
   MR. JUSTICE THOMAS J. MORAN

delivered the opinion of the court.

This appeal is from an order of the Circuit Court of Winnebago County, which permanently enjoined and restrained the defendants from using certain described premises for the storage of commercial truck trailers or truck tractors and uses incidental thereto, or as otherwise permitted in the agricultural district under the County zoning ordinance.

On March 20, 1968, the defendants purchased the land in question which is located at 3101 North Central Avenue in an unincorporated area. Pursuant to ordinance passed in 1947, the premises are zoned for agricultural purposes, which zoning does not permit general business uses or storage of vehicles. The property consists of approximately 6% acres, a substantial part of which defendants used for growing corn, for pasture, for raising some chickens and for horses.

One of the defendants, Lester E. Willsey, appearing pro se at the time of trial, testified that he is engaged in the moving and storage business under the name “Willsey Transfer”; that he owned or had an interest in fifteen semitrailers, eight of which were parked at the rear of the land in question; that the Willsey Transfer office address was 3101 North Central Avenue; that he derived his income from the transfer and storage business and from investments; that he had used two of the trailers for the storage of hay, but that the last bale of hay was gone by the time of trial; that most of the trailers were old and obsolete, and that the basic use for the majority of them was to rent them out to stores such as J. C. Penney for the storage of tires.

The prosecution introduced into evidence an advertisement from the yellow pages of the local telephone directory, which showed the address of Willsey Transfer to be 3101 North Central Avenue.

The first question raised is defendant’s assertion that the complaint did not state a cause of action because (1) the name of the plaintiff was not set forth in the body of the complaint (although it appeared in the caption and introductory paragraph); (2) it did not allege that the plaintiff is a corporation duly organized and existing under and by virtue of the laws of the State of Illinois; (3) it did not allege that the plaintiff has the legal capacity to sue; and (4) it did not allege that the plaintiff had a remedial interest in the cause of action asserted.

The sufficiency of the complaint was not challenged by the defendants in the trial, but is raised for the first time on review. Defendants’ only citation of authority is Ill Rev Stats 1967, c 110, § 21 (4). This particular subsection states, as follows:

“A party shall set forth in the body of his pleading the names of all parties for and against whom relief is sought thereby.”

Defendants’ contention is that, since the plaintiff’s name was not set forth in the body of the complaint and its legal existence was not alleged therein, the complaint was totally defective. This same contention was considered in the case of Federal Ins. Co. v. Ainsworth, 31 Ill App2d 19, 175 NE2d 804 (1961). The court there held that where the introductory paragraph of a complaint stated that plaintiff was a corporation (as in the instant case), there is sufficient compliance with the requirements of section 21(4) of the Civil Practice Act provision, and that the fact that there was no numbered allegation of the corporate status of the plaintiff did not render the complaint insufficient.

In addition, section 45 (1) of the Civil Practice Act (Ill Rev Stats 1967, c 110, § 45(1)) provides, “All objections to pleadings shall be raised by motion,” which “. . . shall point out specifically the defects complained of, and shall ask for appropriate relief. . . .” Section 42(3), (2) of the Act further provides that, “All defects in pleadings, either in form or substance, not objected to in the trial court are waived,” and also recites that, “No pleading is bad in substance which contains such information as reasonably informs the opposite party of the nature of the claim or defense which he is called upon to meet.”

The rule to be applied when the question of the sufficiency of a pleading is raised for the first time on appeal, is that it will only be considered when the complaint fails wholly to state a cause of action and will not be considered when the allegations are merely defective or imperfectly set forth. Lion Specialty and Properties, Inc. v. Chicago Zoning Board of Appeals, 107 Ill App2d 354, 247 NE2d 30 (1969).

In the case at bar, the defendants answered the complaint in its present form, without objection, and the case proceeded to trial. This court is of the opinion that the complaint substantially alleged a cause of action, although somewhat imperfectly, and that defendants waived any defect therein. Further, the complaint contained sufficient information to reasonably inform the defendants of the nature of the claim they were called upon to meet.

The defendants’ next contention is that an affirmative defense raised in their answer was admitted by the failure of the plaintiff to reply to the same. Again, no objection was raised at the trial and defendants produced evidence in support of the affirmative defense as alleged in their answer.

In the case of Sottiaux v. Bean, 408 Ill 25, 29, 95 NE2d 899 (1951), our Supreme Court had before it a similar circumstance and, in quoting from Cienki v. Rusnak, 398 Ill 77, 75 NE2d 372, said:

“Where, in the absence of a reply, defendant introduces evidence to prove an affirmative defense, the failure to file a reply is waived and the absence of a reply does not constitute an admission.”

Defendants next contend that the evidence was insufficient to support the order for injunction. It is claimed that the proof shows that some of the semitrailer trucks were used for storing hay and materials for building and that the principal use of the land was for agricultural purposes.

Willsey, on cross-examination, testified that some of his tractors and trailers, located on the premises in question, were used in his transfer and storage business; that his transfer and storage business is advertised in the yellow pages, stating that his business address is 3101 North Central Avenue, and that the last of the hay he had stored had been removed from the trailers by the time the trial commenced.

The issue at trial, as developed by the evidence (which included the defendants’ affirmative defense) , was whether defendants’ use of the premises was for agricultural purposes and uses incidental thereto. Since this was a bench trial, it became the duty of the trial court to weigh the evidence and to draw therefrom proper inferences and conclusions. Having done so, such conclusions will not be disturbed on review, unless contrary to the manifest weight of the evidence. Walz v. Traders Development Corp., 80 Ill App2d 386, 224 NE2d 483 (1967). We find that there is ample evidence in the instant case to support the trial court’s findings in favor of the plaintiff and that its decision was not against the manifest weight of the evidence.

Defendants’ final contention is that the order for injunction is void because it does not set forth the reasons for its issuance, it does not describe in reasonable detail the act or acts sought to be restrained and it is not specific in its terms, all of which are required under Ill Rev Stats 1967, c 69, § 3-1.

The finding portion of the order, in essence, states that the cause came on for hearing on plaintiff’s complaint for injunction and the defendants’ answer thereto, both parties appeared, the court was fully advised in the premises and heard testimony of the witnesses, and finds the issues for the plaintiff and against the defendant.

The ordering portion states:

“THEREFORE, IT IS ORDERED that the defendants and each of them and their agents, employees and assigns be permanently enjoined and restrained from using the following described premises for the storage of commercial truck trailers or truck tractors and uses incidental thereto, or as otherwise permitted in the Agricultural District under the Winnebago County Zoning Ordinance, and that a writ of permanent injunction shall issue therefor: . . . .”

Section 3-1 primarily concerns itself with the issuance of temporary restraining orders which is not the case before us. In the instant case, after a full hearing, a final decree was entered wherein a permanent injunction was issued. Section 64(4) (Ill Rev Stats 1967, c 110, § 64(4)) of the Civil Practice Act is applicable in the present situation and reads:

“No special findings of fact . . . are necessary in any case in equity to support the decree.”

See also, Peoples Gas Light & Coke Co. v. Slattery, 287 Ill App 379, 390, 5 NE2d 285 (1936).

Defendants have not specified wherein the order is too broad. From a reading it can be seen that, contrary to the defendants’ contention, it does specify in detail the acts sought to be restrained. The order was drawn in conformance with the pleadings and proof that was presented to the court.

For the reasons herein stated, the judgment of the trial court will be affirmed.

Judgment affirmed.

DAVIS, P. J. and SEIDENFELD, J., concur.


author: JUSTICE THOMAS J. MORAN

text:
    Doris Thorson, Plaintiff-Appellant, v. Joseph L. Aronson, Defendant-Appellee.
    Gen. No. 69-171.
    Second District.
    April 20, 1970.

      Covey, McKenney & Powers, of Crystal Lake, for appellant.

      Joslyn and Green, of Woodstock, for appellee.
   JUSTICE THOMAS J. MORAN

delivered the opinion of the court.

This is an appeal from a judgment non obstante veredicto and an order denying a new trial.

The plaintiff and her husband were tenants of the defendant. The leased premise was a one-family dwelling which was erected in 1951. A condition of the lease was that the plaintiff and her husband were to generally maintain the premises.

A cement stoop with four steps up to a landing was constructed at the front entrance. The landing was protected by two guardrails; however, there were no handrails on either side of the stairs. To exit, a person would open the double doors, take one step down to the landing and then walk two or three steps to the head of the stairs.

Subsequent to the construction of the home, the McHenry County building ordinance was amended to provide that stairways in single-family residences must be equipped with a handrail on at least one side. It is not argued that the ordinance was so drawn as to have retroactive effect.

In 1965, the defendant engaged an independent contractor to install wrought iron handrails on the staircase leading to the rear entrance of the premises. Inadvertently, the contractor erected the handrails on the front stairs, and two days later, the defendant ordered them to be removed from the front and placed at the rear as originally intended. This was done.

On the evening of November 2, 1966, the weather was “nasty” in that it was snowing and raining. The plaintiff and her husband returned home from shopping at about 9:00 p. m. and, after putting her groceries on the table, the plaintiff remembered that she had left her purse in the car. While returning to her car, the injury complained of occurred. She testified that she left the front entrance, was walking on the landing toward the stairs and, as she started to take a step down on the stairway, her foot went from under her and she landed at the bottom; that she “went to grab for something and there was nothing to grab onto”; that there was no foreign debris on the landing; that she was stunned for a second and then started screaming; that her husband came out and carried her into the house, placed her on the davenport and that she remained on the davenport until November 14, 1966, at which time she was taken to the hospital and remained there until December 9,1966.

The husband’s testimony revealed that, immediately prior to the accident, and also after the accident, he had shoveled the snow; that he generally maintained the premises and that he had never discussed the question of handrailings with the defendant.

Medical testimony was then introduced and the plaintiff closed its case in chief. The defendant moved the court for a directed verdict and, after hearing, the court allowed the motion. Thereafter, the plaintiff moved for a new trial which was denied by the court.

The plaintiff claims that her proofs established a prima facie case and the court erred in directing a verdict because a) the plaintiff’s contributory negligence, or freedom from the same, was a jury question, b) whether the absence of a handrail was the proximate cause of the injury was also a question of fact for the jury and, c) the defendant owed a duty to maintain handrailings on the stairway to the front entrance of premises in compliance with the McHenry County Building Code.

It is to this last contention that we will first direct our opinion. If there was no duty upon the defendant to either install or furnish a handrail, which is the principal basis upon which the plaintiff’s claim of liability rests, then his failure to do so could not amount to a breach of duty. Breach of duty is a necessary element to be alleged and proved in a personal injury action if the plaintiff expects to establish a prima facie case in chief.

As a general rule of law, a landlord is not liable for injuries on premises leased to a tenant and under the tenant’s control. The exceptions being (1) where a latent defect exists at the time of the leasing, which defect is known or should have been known to the landlord in the exercise of reasonable care and which could not have been discovered upon a reasonable examination of the premises by the tenant; (2) where the landlord fraudulently conceals from the tenant a known, dangerous condition; (3) where the defect causing the harm, in law, amounts to a nuisance; and (4) where the landlord promises the tenant to repair the premises at the time of the leasing. Woods v. Lawndale Enterprises, Inc., 302 Ill App 570, 573-574, 24 NE2d 193 (1939). See also, Roseman v. Wilde, 106 Ill App2d 93, 245 NE2d 644 (1969). The evidence in the case at bar does not place the plaintiff within any of the exceptions stated, therefore the general rule must apply since the premises in question were under the plaintiff’s, and her husband’s, control.

The defendant argues that when the defendant ordered wrought iron handrails for the rear entrance and they were inadvertently installed at the front entrance, this act proved that the defendant retained control over the premises. We cannot agree with this conclusion. The evidence, as disclosed by the record, with this one act as an exception, is uncontradicted in establishing the fact that the plaintiff was to maintain and have control of the whole of the leased premises.

The plaintiff does not contend that the defendant was required to install a handrail at the front stairway under the building ordinance; however, it is argued that since the defendant did so, he thereby complied with the building ordinance which, in turn, created the duty necessary to her cause of action.

If the circumstances were such that the defendant had ordered the placement of a handrail at the front stairway but later removed the same, more credence would be lent to plaintiff’s position. However, such is not the circumstance in this case. The uncontradicted evidence is that the defendant never intended to erect a handrail at the front entrance; that an independent contractor, through error, did so and that, within two days of the discovery of the error, it was remedied by the defendant. This, in our opinion, cannot be said to be an act in compliance with the building ordinance, ergo, the creation of a duty.

We conclude, as did the trial court, that the evidence presented by the plaintiff in her case in chief did not establish any duty upon the defendant and, therefore, the trial court was correct in directing a verdict in favor of the defendant and denying the plaintiff’s motion for a new trial.

Having reached this conclusion, there is no need to discuss the remaining contentions raised by the plaintiff.

Judgment affirmed.

DAVIS, P. J. and ABRAHAMSON, J., concur.


author: STOUDER, J.

text:
    Dona Jones, Plaintiff-Appellant, v. T. M. Lukas and William D. Griffin, Defendants-Appellees.
    Gen. No. 69-55.
    Third District.
    April 23, 1970.

      Letter, Newlin, Fraser, Parkhurst & McCord, of Peoria, for appellant.
    Arthur B. Copeland, and Heyl, Royster, Voelker & Allen, of Peoria, for appellees.
   STOUDER, J.

Plaintiff-Appellant, Dona Jones, brought this action in the Circuit Court of Peoria County seeking damages on account of the alleged medical malpractice of Defendants-Appellees, T. M. Lukas and William D. Griffin. The court dismissed the complaint pursuant to the motion of defendants for summary judgment from which judgment the plaintiff has appealed.

The complaint alleged that plaintiff, Dona Jones, entered Proctor Community Hospital May 27, 1964, under the care of Dr. T. M. Lukas, defendant, who recommended surgery by Dr. William D. Griffin, defendant. Surgery was performed June 9, 1964, to repair a diaphragmatic hernia, and for resection of a diverticulum of the duodenum. She remained in the hospital until June 30, 1964, she suffered great pain thereafter and on July 10, 1964, entered another hospital for medical attention. On June 18,1964, she was informed that X rays had shown a curvilinear surgical needle to be imbedded in her person. Additional surgery was performed August 8, 1964, for the drainage of an abscess, and she alleged that the abscess formed in the same area in which Doctor Griffin had operated upon her. Defendants were charged with the want of due care and skill in the leaving of the needle in plaintiff’s body.

Answers were filed by defendants denying the allegations of negligence. At the request of plaintiff, evidence depositions were taken of Doctors Berney, (Roentgenologist), Warren (consulting physician at time of both operations) and Eastman (surgeon performing second operation).

Defendants moved for summary judgment, and the motion executed by defendants’ attorney referred to the depositions and, in particular, to the deposition of Berney. Plaintiff moved to strike the motion for summary judgment but the record does not reveal the court’s ruling on the motion. In any event, the plaintiff thereafter filed counterproofs which consisted principally of references to portions of the depositions of Doctors Berney, Eastman and Warren.

The trial court, after considering the pleadings, depositions and affidavits, concluded that no triable issue of fact existed and thereupon dismissed the complaint.

Plaintiff first argues that the motion for summary judgment does not comply with Ill Rev Stats 1967, c 110, § 57, and Supreme Court Rule 191. According to plaintiff, the evidence depositions of the doctors referred to were not properly considered by the trial court.

Plaintiff’s motion to strike, objecting to defendants’ motion and supporting documents, does not appear to have been considered by the trial court nor ruled upon. Since it is the duty of the movant, in this case the plaintiff, to bring such motions to the attention of the court and preserve any rulings thereon, the failure to do so waives any objections relating thereto. In any event, we find no merit to the objection.

Blonar v. Inland Steel Co., 57 Ill App2d 99, 207 NE2d 124, quotes with approval the following from City of Quincy v. Sturhahn, 18 Ill2d 604, 165 NE2d 271, “The statements in the affidavit were declaratory of matters and things apparent on the face of the exhibits. Their authenticity was not denied. Since the affidavit met the requirements of the statute, it was sufficient in law to raise the questions decided on plaintiff’s motion for summary judgment.” In Blonar, references to statements made in depositions were considered proper, even though as to affiant they would have been hearsay.

In the case at bar, no question is raised concerning the authenticity of the evidence depositions or the references to matters therein stated, and in our opinion, the motions and depositions were properly considered.

This brings us to the principal issue of the case, namely, whether as contended by plaintiff, triable questions of fact were presented by the documents filed and hence, the trial court’s conclusion to the contrary was error. The parties are in general agreement concerning the principles applicable to summary judgment proceedings. The purpose of summary judgment proceedings is not to try an issue of fact but to determine whether there is an issue to try. Patterson v. Stern, 88 Ill App2d 399, 232 NE2d 7, and Elm Lawn Cemetery Co. v. City of Northlake, 94 Ill App2d 387, 237 NE2d 345. Summary judgment supporting affidavits are to be construed most strongly against the movant and must leave no question of movant’s right to judgment, whereas the counteraffidavits (counterproofs) are construed liberally.

Plaintiff’s basic premise is that a needle was left in her body by defendants. Whether a triable question of fact exists depends on whether the documents disclose any competent facts from which the presence of a needle in plaintiff’s body may be inferred. Doctor Berney, the Roentgenologist, supplies the only facts related to this question and a review thereof reveals that plaintiff’s hypothesis concerning the presence of the needle is not supported by his testimony.

On July 18, 1964 (after the first but before the second operation) Dr. Berney made a roentgenological examination. In his written report he refers to “. . . what apparently is a curved metallic surgical needle overlying this diverticulum on the right anterior oblique films. . . During the course of his evidence depositian taken some four years later, Berney gave as his opinion based on the same X rays taken in July, 1964, that such X rays did not reveal the presence of any needle in plaintiff’s body. According to Berney’s testimony he admittedly had changed his mind and conceded that his present opinion was contrary to that previously expressed.

Plaintiff is placed in the unenviable position of having commenced this action predicated on testimony which either no longer exists, or is unavailable. Berney’s initial report or initial opinion, no matter how contrary to his present opinion, is not binding on defendants and is not independently admissible. While such prior contrary statements would be admissible for impeachment of Berney’s later opinions such impeachment evidence still remains impeachment evidence and does not support inferences concerning the truthfulness of the prior inconsistent statements.

Although the X rays were available for examination by other qualified persons, plaintiff has failed to present the testimony of any other qualified person offering an opinion based on the examination of such X rays favorable to plaintiff. No claim is made, and indeed it' could not be supported that the X-ray films without interpretation or explanation, offer any support for plaintiff’s claim. Thus there is absent any competent evidence that a needle was left in plaintiff’s body.

The depositions of Doctors Eastman and Warren likewise offer no support for any inference that a needle was present in plaintiff’s body. Eastman testified that when he operated, he found no needle but indicated that the needle might have exited through certain drains which he had inserted. While the testimony that no needle was found does not disprove its presence, there is nothing in such negative evidence from which the presence of any needle may be inferred. Dr. Warren’s testimony concerning diagnosis of patient’s condition is likewise unrelated to the presence of any needle.

For the foregoing reasons we find no error in the judgment of the Circuit Court of Peoria County and accordingly, said judgment is affirmed.

Judgment affirmed.

RYAN, P. J. and ALLOY, J., concur.


author: ALLOY, J. STOUDER, J.

text:
    Nino Cabry, Plaintiff-Appellant, v. Harry E. Ionidas, Defendant-Appellee.
    Gen. No. 69-107.
    Third District.
    April 23, 1970.
    Rehearing denied May 18, 1970.

      STOUDER, J., dissenting.

      Donald O’Shea, of East Moline, for appellant.
    Ted Jackson, of East Moline, for appellee.
   ALLOY, J.

Nino Cabry, a licensed real estate broker, filed an action against defendant, Harry E. lonidas, to recover a commission alleged to have been earned through sale of defendant’s house. The listing of the house which was located in East Moline specified that plaintiff was to act as broker in the sale of the house which was to be sold for $23,500, with $5,000 to be paid down and the balance to be paid in monthly installments at 6% interest. The broker was to be paid the 6% commission in the event of such sale.

On May 16, 1968, plaintiff arranged for the purchase by buyers, Mr. and Mrs. R. F. Brown, who signed a document which was called “Purchase Agreement and Receipt for Earnest Money.” The form was prepared by the broker. As part of the purchase agreement, Browns gave the plaintiff-broker $100 “as earnest money deposit on the purchase of the following described property.” The agreement further provided for sale of the property at $22,000 with $100 as earnest money and $3,900 additional to be paid at the time of closing. The $18,000 balance was to be carried on a contract for deed payable in installments of $192 per month with interest at 6% per annum payable monthly. Following the signature to such document by the Browns, plaintiff brought the document to defendant who also signed the agreement below words which had been prepared by plaintiff, “I hereby accept the terms and conditions above and agree to pay Nino Cabry Real Estate Agency . . . the regular rate of . . . commission.”

Plaintiff acted as a broker in selling the home of the Browns prior to the time fixed for closing of the transactian with defendant. The closing of defendant’s transaction with the Browns, including the cash payment and the execution of the installment contract was to take place in the office of attorney Costigan. At such closing, the purchasers were not able to pay the balance of $3,900 as down payment and thus no papers were signed nor was there any sale made as between defendant and the Browns. The parties agree that the Browns were not able to purchase the premises through payment of the down payment.

Nevertheless plaintiff-broker filed action against defendant home owner for commission for sale of the house contending that defendant had accepted the Browns as buyers by signing the “Purchase Agreement and Receipt for Earnest Money.” At the trial, plaintiff objected to any evidence showing that the Browns were not able to make the $3,900 down payment and that they did not, in fact, enter into an installment contract with' defendant Ionidas and close the deal. The basis of the objection was that plaintiff in his complaint had stated that after the Browns had signed, the defendant “accepted” the buyers’ and written contract, a copy of which was attached as “Exhibit B.” A copy of such contract was attached to the complaint. In the answer of defendant, defendant admitted the execution of the agreement in the language hereinabove quoted. Defendant admitted that the copy attached was correct, but stated that the Browns could not procure the balance of the down payment at the time of the closing and moved from the State of Illinois. Defendant counterclaimed for the $100 which had been paid to plaintiff-broker as “earnest money.” The trial judge found that no commission was owing to the plaintiff, and that defendant was entitled to the $100 being held by plaintiff.

It is clear that in Illinois before a broker is entitled to his commission, he must show that he furnished a purchaser who is ready, willing, and able to buy the property upon terms set forth or agreed to by the owner (Lang v. Hand, 57 Ill App 134; Tackett v. Powley, 130 Ill App 97). As stated in Greenwald v. Marcus, 3 Ill App2d 495, 123 NE2d 139, at 499:

“It is true that an agent generally must prove that the prospective buyer was ready, willing, and able to buy at the price fixed/’

Before a purchaser can be ready, willing and able to buy he must have sufficient funds on hand or be able to command the required funds needed to complete the purchase insofar as cash requirements are involved within the time agreed upon by the parties. In Adams v. Hall, 168 Ill App 569, where the purchaser was required to pay down $10,000 and had only $6,000 in cash and was attempting to negotiate a second mortgage on other property for $4,000, the court held that there was no showing that the second mortgage could be negotiated and it was, therefore, held that the broker had not furnished a purchaser who was able to buy.

In the case before us, the purchase agreement provided that the purchasers were to pay $3,900 at the closing with the balance of $18,000 to be set up on a 10-year installment contract. The purchasers were unable to make the $3,900 down payment, with the result that the transaction was not concluded as between the parties. It is clear from the record that the prospective purchasers who were obtained by the broker were not “able” to conclude the purchase, and, so far as that aspect of the case was concerned, the broker did not establish that he had provided a buyer or buyers who were ready, willing, and able to purchase the premises. Therefore, unless the broker was able to show that the defendant had waived this requirement and had agreed to accept the Browns as purchasers, regardless of their ability to make the payment or had waived such requirements in such a manner that would justify the conclusion that the sellers were taking a chance on the buyer being able to complete the purchase, the broker would not be entitled to recover the commission.

The basic question before the court, therefore, is whether the defendant waived the right to question whether the purchaser furnished by the broker was ready, willing, and able to buy the property when the purchaser signed the acceptance notation at the bottom of the preliminary agreement. There was no other act which defendant had done which in any way showed any waiver other than the execution of the document which

was tendered to defendant by the broker. The record indicates that defendant did not know the Browns and did not know of their financial inability to purchase until they appeared for the closing. The acceptance which was signed was simply one which stated that the seller accepted the “terms and conditions” specified in the agreement. One of the conditions was that there be the cash down payment at the closing. A contract of the type which was involved in this case must, if possible, be construed to give effect to the intention of the parties (Cedar Park Cemetery Ass’n v. Village of Calumet Park, 398 Ill 324, 75 NE2d 874; Katz v. Brooks, 65 Ill App2d 155, 212 NE2d 508). The instrument must also be construed most strongly as against the author, the broker (Cedar Park Cemetery Ass’n v. Village of Calumet Park, supra, at page 333). In applying such rules of construction to the agreement before us, it is clear that when the defendant signed the agreement, he was not accepting the Browns as purchasers irrespective of whether or not they could later make the cash down payment at the closing.

Obviously, in signing the acceptance notation, defendant was merely accepting or assenting to the terms of a sale arrangement which he was to enter into with the Browns. From the time of the original listing with the broker which provided for a substantial down payment of $5,000, until the time of appearance for actual closing, seller had clearly indicated that the substantial down payment (reduced to $4,000) would be required to be made. The new terms of sale had been specified by the broker in the agreement which he prepared, and it was specified that the understanding as to sale was dependent upon payment of the down payment. Any ambiguities in the understanding, insofar as it relates to the broker and the claim of the broker as against the owner, should be resolved in favor of the owner since the broker prepared the agreement. It is apparent that the seller was relying on the fact that the purchaser furnished by the broker would be ready, willing, and able to make the down payment as outlined in the preliminary purchase document. The fact that the defendants signed an acceptance of “the terms and conditions above” did not mean that the defendant in any manner waived the basic requirement that the purchaser must be able to pay the down payment.

In the case before us there was no showing that defendant was given an opportunity to investigate the Browns to determine their ability to comply with the contract. It is apparent that there was no opportunity for an investigation nor was there any showing that the owner waived the need for an investigation. Since the broker asserted a waiver by defendant, the burden was on the broker to establish that there was, in fact, a waiver of the requirement that the purchasers be ready, willing, and able to fulfill the requirement by making payment of the down payment. On the basis of the record, it is clear that there was no unqualified acceptance of the Browns as the purchasers, irrespective of whether they were able to obtain the cash funds to complete the purchase arrangement.

In Burnett v. Potts, 236 Ill 499, 86 NE 258, the owner of 417 acres of land authorized a broker to sell his land for $35,000 net cash to the owner with the understanding that the broker could keep all of the sale price over $35,000. A written contract of sale was entered into between the broker and a prospective purchaser for sale of the property. The broker received $1,000 when the contract was executed and the balance of $35,000 was to be paid to the owner by March 1 of the following year. Purchaser never paid anything else on the contract other than the $1,000 down payment. After the March 1 deadline the owner sued the broker for the $1,000 which he was holding and which the prospective purchaser had paid down and the court awarded the $1,000 to the owner. The court in such case stated (at page 501):

“Appellant was not entitled to any compensation for making this sale until appellees received the $35,000, unless their failure to so receive it was the result of their own fault. That it was not the fault of appellees is determined against appellant by the affirmance of this judgment by the Appellate Court.”

The principle involved is relatively similar to the situation in the case before us and differs only in that the broker in the instant case was to receive a percentage of the sale price. The court in the Burnett case commented on this difference (at page 502) when it stated:

“Such contracts differ from the usual agency contract where the compensation of the agent is a per cent of the price at which the sale is made, only in that the compensation is contingent upon the agent’s obtaining more for the land than the owner has agreed to accept. If appellant had sold this land for $35,000 he would have been compelled to turn the entire proceeds over to his principals. We do not see upon what legal grounds he can be allowed to retain any part of the purchase money when only $1000 has been paid.”

In Farber v. Fleck, 51 Ill App2d 145, 200 NE2d 903, the broker obtained a buyer for property and buyer made a $1,000 down payment. The agreement contemplated that the owner and buyer would enter into an installment contract for the balance of the purchase price with an additional $4,000 down payment. The articles of agreement for warranty deed were signed by both parties and buyer took possession and made payments for two years and then defaulted. The owner repossessed and retained all payments as liquidated damages and then sued to recover the commission he had paid the broker. The Appellate Court correctly held that the commission did not have to be returned as the broker had earned his commission when the installment contract was signed and the balance of the purchase price was paid. In the case before us, the cash payment was not made, and the installment contract described in the “purchase agreement” was never entered into by the parties. The sale arrangement which would entitle the broker to his commission was never consummated nor was there any waiver by the owner of the requirement that such down payment be, in fact, made or that the owner would take his chances or would conduct an independent investigation which would satisfy him.

On the other issue as to whether the defendant’s answer admitted that defendant had accepted the Browns as purchasers, irrespective of their ability to conclude the purchase, it is clear that all defendant did, in effect, in his answer, was to admit that he signed the acceptance form at the bottom of the purchase agreement referred to which was attached to the complaint. It is clear that the acceptance of the owner was conditioned expressly upon making of the down payment and that there was no waiver of such requirement either by conduct or by express agreement. In Valois v. Pelletier, 84 RI 176, 122 A 148, the court emphasized that in that state, the rule (which enunciated that a broker is entitled to a commission after he has produced a customer who is accepted by his principal), is modified by the consideration that a broker in producing a person as a purchaser, impliedly represents to the vendor (insofar as his right to commission is concerned) that such person is “able financially as well as ready and willing to purchase,” provided the vendor relies solely upon the broker and does not, before entering into the contract, exercise his independent judgment of the customer’s ability to purchase. This wholesome limitation prevents imposition of an unreasonable obligation upon the seller where the broker has obtained the signature of an irresponsible person to a purchase agreement, even though the broker is not guilty of any misrepresentation.

We are aware that there have been many general expressions to the effect that when the broker has obtained the signature of an owner to a purchase and sale agreement he has earned his commission. This is not, and cannot be the rule in all cases. We are cognizant of the method by which most sales of real estate are made in the State of Illinois. A proposal to purchase is obtained from a prospective purchaser and the broker then seeks to obtain the signature of the seller for the purpose of expediting the transaction. If an acceptance is made subject to certain terms and conditions specified in the agreement, and those terms and conditions require payment of a cash down payment, there is obviously a conditional acceptance. Unless there is a waiver on the part of the seller, there is no sale agreement completed, unconditionally, which would entitle the broker to his commission. If the seller in the instant case had stated that he would make an independent investigation of the prospective purchasers, or if he had stated that he knew the purchasers and still signed the agreement, this could conceivably have been construed as a waiver. Under the circumstances present in the instant case, however, where the purchasers were presumably unknown to the seller and where the arrangements for sale were made as shown by the record, it is obvious that there was no waiver of the condition as to payment of the cash sum required to be paid. The trial court correctly concluded that the broker was not entitled to be paid a commission where the transaction did not in fact amount to a conclusive arrangement between the buyers and the seller, where the buyer was ready, willing, and able to make the down payment required.

On the basis of the record before us, we must, therefore, conclude that the judgment of the trial court was correct and should be affirmed.

Affirmed.

RYAN, P. J., concurs.

DISSENTING OPINION

STOUDER, J.

I disagree with the majority of the Court. Based on well-established principles, the plaintiff broker was entitled to his commission and the trial court erred in holding to the contrary.

To me, the reasoning employed and the result reached in the majority opinion are contrary to, or are unsupported by the Illinois authorities cited. Since the majority opinion ignores much of what is said in many of the opinions cited, it is difficult to ascertain whether the majority believes it is applying Illinois rules or whether it is adopting new rules contrary to those enunciated in prior Illinois authorities.

The first three cases cited in the majority opinion (Lang v. Hand, 57 Ill App 134, Tackett v. Powley, 130 Ill App 97 and Greenwald v. Marcus, 3 Ill App2d 495, 123 NE2d 139) support the general proposition that a broker is entitled to his commission if he secures a purchaser ready, willing and able to buy the property on terms acceptable to the seller. Such cases go much farther than enunciating the general rule and indicate rules which are applicable in determining whether the broker has fulfilled the conditions.

In Lang v. Hand, supra, the Court affirmed a judgment in favor of the broker for his commission. The facts are not extensively set forth, but it does appear that the defendant seller had entered into a contract with a buyer which contract for some reason was not performed. The court stated, “Whether the contract was ever carried out for reasons existing between the parties to it, and for which the broker was not responsible, cuts no figure so far as either the merits or the law of this case is concerned.”

The defendant seller had entered into a contract with a buyer in Tackett v. Powley, supra, and the court held the broker entitled to his commission where title problems had developed and the contract was rescinded by the mutual agreement of seller and buyer. The court approved the following quotation from Wilson v. Mason, 158 Ill 304, 42 NE 134, “When the agreement of the real estate broker is to make a sale, his commission is earned when a contract is entered into, which is mutually obligatory upon the vendor and vendee, even though the vendee afterwards refuses to execute his part of the contract of sale or purchase.” It also approved the following quotation from Jenkins v. Hollingsworth, 83 Ill App 139, “If vendor accepts the purchaser and enters into a valid contract with him the broker’s commission is earned even though the purchaser declines to complete the sale.”

Greenwald v. Marcus, supra, holds that a real estate broker was entitled to his commission where a written offer in accord with the seller’s terms was submitted but did not ripen into a contract and was not performed because the seller (previously representing himself as the sole owner) was unable to purchase the interest of his partners. The court observed that, the purchaser’s proposal being satisfactory to the seller, the broker had complied with his duty and was not required to prove the financial ability of the purchaser.

In Katz v. Brooks, 65 Ill App2d 155, 212 NE2d 508, the court held the broker not entitled to his commission, but it does so on account of facts so diametrically opposed to those in the instant case that it supports a result opposite to that reached by the majority. In Brooks, a written offer was submitted by a purchaser which offer was specifically declined by the seller because it was not in accord with the terms upon which the broker was authorized to sell the property. Specifically, the offer included two contingency clauses, one relating to financing and the other to leases which could have rendered the entire contract void. In addition, the price described in the offer was less than that specified by the seller. If a seller specifically rejects a purchaser’s offer, it can hardly be said that the same reasoning and consequences ought to be applicable to the case where the purchaser’s offer is approved by and acceptable to the seller.

The broker was denied his commission in Adams v. Hall, 168 Ill App 569. This is the only case cited in the majority opinion where any broker was held not entitled to a commission because of the financial inability of his proposed purchaser. The facts in the Adams case are so sketchy and incomplete that any comparison or argument by analogy is impossible. It does appear that no contract was entered into between seller and buyer and the buyer’s offer was never accepted or approved. The case although decided in 1912, does not appear to be of sufficient significance to have been cited or followed in any subsequent case involving real estate broker’s commissions. In Spitzer v. Bradshaw-Praeger & Co., 10 Ill App2d 445, 135 NE2d 114, the court in commenting on the Adams case stated, “It is true that Adams v. Hall, 168 Ill App 569, cited by defendant in support of its position, does glance in the other direction. However that myopia was definitely corrected by the subsequent decisions we have before cited.” The most that can be said about this case is that it is irrelevant to any of the issues to the case at bar.

Farber v. Fleck, 51 Ill App2d 145, 200 NE2d 903, also cited by the majority, decided that the broker had earned his commission even though a purchaser under an installment contract had defaulted thereon. The court concluded that the listing contract between broker and owner had been performed by the broker even though the terms of sale were more restrictive than usual and customary. The court concluded that the execution of the installment contract was in accord with the terms of the listing contract and consequently the nonperformance of the installment contract by the purchaser could not prevent the broker from earning his commission. To the extent there is any analogy between this case and the case at bar, it would indicate a result contrary to that reached by the majority.

Burnett v. Potts, 236 Ill 499, 86 NE 258, the only other Illinois authority cited in the majority opinion, holds that under the circumstances therein involved, the broker was not entitled to a commission. The Burnett case is inapplicable by its own terms to the case at bar. The broker was denied his commission because of the “net cash” provision of the listing contract, the court construing such provision to require that the seller receive the specified price in cash before the broker could earn his commission. The court neither discusses, applies nor mentions the general rule that a broker is entitled to his commission when he procures a buyer ready, willing and able to purchase the property on terms acceptable to seller. If the general rule is not applied neither the result nor what was said by the court can be of any assistance in the case at bar.

Fox v. Ryan, 240 Ill 391, 88 NE 974 (not cited in majority opinion) holds that a broker is entitled to his commission even though the contract between seller and buyer is abandoned or rescinded. The court declares, “But, where the seller accepts the purchaser and enters into a valid contract of sale with him, the broker’s commission is earned whether the purchaser subsequently fails to perform his contract and make the payments agreed upon or not.” The court further states, “The vendor of property is not required to accept a purchaser without opportunity for investigation as to his ability to comply with the terms of the contract, but where he does accept such purchaser, uninfluenced by fraud or misrepresentation, it is a determination by him of the purchaser’s ability to perform his contract, and, if the purchaser afterwards fails to perform it, the seller cannot defeat - the broker’s commission on the ground that the purchaser was not able to buy the property.”

In Rushkiewicz v. St. George, 226 Ill App 310 (not cited by majority) the significant facts cannot be distinguished in my view from those in the instant case. The court concluded the broker was entitled to his commission even though the sales contract might have been unenforceable because of want of mutuality. The court emphasizes that the broker is entitled to his commission when he has performed his agency contract to the satisfaction of the seller. In Rushkiewiez the court concluded that the acceptance of the purchaser’s offer, even though no enforceable contract resulted, established the broker’s performance to be satisfactory and acceptable. Furthermore, since the broker’s right to his commission did not depend on the purchaser’s performance of the sales contract, neither the failure of the purchaser to perform the contract nor his financial ability were relevant considerations.

In summary, I believe all of the foregoing authorities are in accord with the general view that in the absence of fraud or misrepresentation, the execution of a sales contract by the seller establishes the broker’s performance of his obligation, thereby entitling him to his commission. No fraud or misrepresentation was charged or proved. In the absence of fraud or misrepresentation, the seller having approved the purchaser, the latter’s financial ability was not an issue in the case. The most the record discloses is that the purchaser declined to perform the contract, and the seller declined to enforce the contract. The trial court apparently concluded, and in my view erroneously, that it was the duty of the broker to prove the financial ability of the proposed purchaser notwithstanding the seller’s approval of the purchaser.

The majority opinion suggests that the seller ought to be excused from liability because he was deprived of an opportunity to investigate the purchaser’s financial ability, but such views are without support either in the record or in the cases cited. All the record shows is that the seller voluntarily entered into the sales agreement. Again, in the absence of misrepresentation or fraud, the execution of the agreement itself negates any such assertion. Also, the record is barren of either any assertion or evidence that the defendant seller’s execution of the sales contract was conditional or that the terms of the purchase agreement were in any way unsatisfactory to him.

Lastly, in view of the Illinois authorities, I see no reason for applying Rhode Island law as represented by Valois v. Pelletier, 84 RI 176, 122 A 148, cited in the majority opinion. Indeed Valois v. Pelletier, supra, concedes that the rule in Rhode Island is contrary to the weight of authority. Furthermore, the issues in the trial court were not based on the violation of any implied warranty and the interjection of such an issue at this stage in the proceedings is unwarranted.

In conclusion, I believe that all of the Illinois authorities are consistent with the view that the trial court erred in denying the plaintiff his commission. If the Illinois rule ought to be changed, it should be done so forthrightly but only in the case where the issue is presented to, and decided by the trial court.


author: MR. PRESIDING JUSTICE DAVIS

text:
    Manchester Insurance & Indemnity Company, a Corporation, Plaintiff-Appellant, v. Marjorie Strom, Ronald Strom, Constance Marie Lindell Strom, Edna L. Meints, Eddie F. Meints, State Farm Mutual Automobile Insurance Company, a Corporation, Cynthia Meints, Teresa Meints and Shirley Meints, Defendants-Appellees. Edna L. Meints, Cynthia Meints and Teresa Meints, Third-Party Plaintiffs-Appellants, v, Marjorie Strom, Ronald Strom, Constance Marie Lindell Strom, State Farm Mutual Automobile Insurance Company, a Corporation, American Family Insurance Group, a Corporation, and American Family Mutual Insurance Company, a Corporation, Third-Party Defendants-Appellees.
    Gen. No. 69-184.
    Second District.
    April 24, 1970.

      Knight and Knight, of Rockford (William D. Knight, Jr., of counsel), for plaintiff-appellant, and Canfield, Canfield, Franks, Wylde and Hoad, of Rockford (Robert R. Canfield, of counsel), for third-party plaintiff s-appellants.
    Canfield, Canfield, Franks, Wylde & Hoad, of Rockford Robert R. Canfield, of counsel), for defendants-appellees Edna L. Meints, Cynthia Meints, and Teresa Meints, Sreenan & Ellsworth, of Rockford (Gilbert N. Ellsworth, of counsel), for third-party defendants-appellees Marjorie Strom, Ronald Strom, and Constance Marie Lin-dell Strom, Maynard & Brassfield, of Rockford (Eugene E. Brassfield, of counsel), for third-party defendant-oppellee American Family Mutual Insurance Company, and Gilbert, Powers & Graves, of Rockford (Edwin T. Powers, Jr., of counsel), for third-party defendant-appellee State Farm Mutual Automobile Insurance Company.
   MR. PRESIDING JUSTICE DAVIS

delivered the opinion of the court.

Manchester Insurance & Indemnity Company, the plaintiff, has appealed from an adverse decision of the trial court in its action for a declaratory judgment that an endorsement to its insurance policy relieved it of the obligation to defend and to pay certain judgments which had been entered against Constance Marie Lindell in prior personal injury and property damage suits.

It appears that during the summer of 1964, the plaintiff sought permission from the Department of Insurance of the State of Illinois to use a restrictive endorsement on certain of its insurance policies which provided that: “It is hereby understood and agreed that the Insuring Agreement ‘Definition of Insured’ is eliminated and such insurance as is afforded by the policy applies only to the named insured or members of his or her immediate family.”

On September 18, 1964, the Department of Insurance notified the plaintiff that the endorsement, was not acceptable for use in this State and directed the plaintiff to discontinue using it. The plaintiff took no action to review the propriety of the decision of the Department of Insurance.

Thereafter, on December 13, 1965, the plaintiff issued the policy in question to Marjorie Strom, as the insured. She is the mother of Ronald Strom, who was listed in the policy as a driver of the car. At the time in question, he was a minor. The plaintiff claims that at some time between December 15, 1965, and January 6, 1966, it sent a copy of the restrictive endorsement in question, to Marjorie Strom. She denies that she received the endorsement and denies that the signature thereon is hers. Evidence was introduced to the effect that it was not her signature; no contrary evidence was offered.

On March 12, 1966, Constance Marie Lindell, who later married Ronald Strom, was driving the insured vehicle and was involved in an accident. As a result of this accident, the two judgments — one for personal injury and one for property damage — were entered against Constance Marie Lindell. The plaintiff defended both of those lawsuits. However, it claims that it did so under a reservation of rights, which is denied by the persons who were defendants in the two lawsuits.

The plaintiff then instituted this declaratory judgment action against Marjorie Strom, their named insured, Ronald Strom, Constance Marie Lindell Strom, the plaintiff s-judgment creditors in the previously mentioned two lawsuits, and the insurance company with whom the plaintiffs-j udgment creditors carried uninsured motorist coverage. The judgment creditors then brought a third-party action against the insurance company which insured Constance Marie Lindell on the date of the accident.

The declaratory judgment action was heard by the court without a jury. The trial court found that the restrictive endorsement was null and void in that it had been disapproved by the Department of Insurance; that the restrictive endorsement had not been received, accepted or signed by the named insured; that the plaintiff had not defended under a valid reservation of rights; that the plaintiff was unreasonable and vexatious in bringing the declaratory judgment action; that the suit was frivolous and without sound legal basis; and that, therefore, the defendants and third parties were entitled to reasonable attorneys’ fees and expenses under the provisions of Ill Rev Stats 1967, c 110, par 41, and c 73, par 767.

Section 143 of the Insurance Code (Ill Rev Stats 1967, c 73, par 755) provides that casualty companies transacting business in this state shall file policies, certificates of insurance, endorsements, riders and bylaws that are incorporated in any insurance policy with the Director; and that if the Director finds from his examination that any such policy or endorsement “violates any provision of this Code, contains inconsistent, ambiguous or misleading clauses, or contains exceptions and conditions that will unreasonably or deceptively affect the risks that are purported to be assumed by the policy, he shall order the company or companies issuing such forms to discontinue the use of the same.”

The section further provides that if policies have been issued which are found to be in conflict with the subsection, the legality of the policies would not be affected, but the policies would be subject to the provisions of section 442 of the Insurance Code.

Section 442 of the Code (Ill Rev Stats 1967, c 73, par 1054) provides that if any policy of insurance, endorsement or rider used in connection therewith, is issued which includes provisions prohibited by the Director, the policy shall nevertheless be valid, but shall be construed so that the rights and obligations of the company thereunder shall not be less favorable to the holder of the contract and the beneficiary thereunder than is required by the provisions of the Insurance Code.

The Department of Insurance, during the summer of 1964, conducted an examination in which it reviewed all policy forms connected with the issuance of automobile insurance policies by the plaintiff company in the State of Illinois. During the course of the examination, the Director raised some question with regard to the restrictive endorsement which is the subject matter of this lawsuit. After some correspondence, the Director concluded his examination by a letter dated September 18, 1964, advising the plaintiff that the restrictive endorsement in question would not be permissible for use in the State of Illinois, and that the company must discontinue the use of such endorsements within the State.

The Director of Insurance, under the provisions of sections 143(2) and 401 (Ill Rev Stats 1967, c 73, pars 755 and 1013), clearly had the power to examine the automobile insurance policy forms intended for use by the plaintiff company within the State of Illinois, and to order the discontinuance'of any provision found unacceptable.

Under section 407 of the Act (Ill Rev Stats 1967, c 73, par 1019), the plaintiff was given a right to, and a procedure for obtaining, a court review of this decision of the Director. It is undisputed that the Director disapproved the endorsement in question in September of 1964 and that no judicial review was sought from this decision. Yet, the plaintiff’s basis for seeking to avoid liability under its policy of insurance is the very endorsement which it was ordered not to use by the Director, and which was issued subsequent to the decision of the Director. This precise point was raised in Linkens v. Furman, 52 Ill App2d 1, 7, 8, 201 NE2d 645 (1964), where it was held that an endorsement issued by a company after the Director of Insurance had expressly advised that the endorsement was not acceptable for use within this State could not be availed of by the company to otherwise restrict the terms of its policy.

Also, the trial court found that the endorsement had neither been received nor signed by Marjorie Strom; that the plaintiff had not defended the original actions under a qualified reservation of rights; and that there was no evidence to support the allegation that Constance Marie Lindell had been operating the vehicle in question without the permission of the insured. These findings, likewise, are supported by the record and are not against the manifest weight of the evidence. They will not be disturbed by this Court. Sawchyn v. Samlow, 109 Ill App2d 363, 370, 248 NE2d 763 (1969); Johnson v. Fischer, 108 Ill App2d 433, 437, 247 NE2d 805 (1969).

We next turn to the question of whether the trial court was correct in allowing the defendants and third-party plaintiffs reasonable attorneys’ fees and expenses under the provisions of the Civil Practice Act and Insurance Code. (Ill Rev Stats 1967, c 110, par 41 and c 73, par 767.) Under the circumstances of this case, we believe that the trial court properly allowed such fees and expenses.

The ultimate basis of the plaintiff’s case, as disclosed in both its complaint and appeal to this Court, is that the restrictive endorsement barred coverage when the car in question was driven by Constance Marie Lindell, a person who was neither the named insured nor a member of the immediate family of the named insured. This restrictive endorsement was issued after the plaintiff had been advised by the Director that its use was not permissible in this State. The plaintiff does not suggest that it was unaware of this determination, and the records of the Department of Insurance indicate otherwise.

Section 41 of the Civil Practice Act provides that allegations not made in good faith shall subject the party-pleading them to the payment of reasonable expenses actually incurred by the other party by reason of the untrue pleading, together with a reasonable attorney’s fee. It appears to us that bad faith is implicit in the bringing of this action. Section 41 of the Civil Practice Act is an attempt to penalize a litigant who pleads frivolous or false matters, or brings a suit without any basis in law, whereby another party is put to the burden of expending money for an attorney to make a defense against an untenable suit. This section is properly invoked to prevent litigants from being subjected to harassment by the bringing of actions against them which are vexatious, and based upon false statements, or brought without any legal foundation. Ready v. Ready, 33 Ill App2d 145, 161, 162, 178 NE2d 650 (1962).

The defendants and third parties have petitioned this Court for the award of additional attorneys’ fees and expenses in connection with this appeal. We believe that the bringing of this action was without any basis and in bad faith, and that the appeal is a needless extension of a baseless lawsuit. By this appeal, it appears that the plaintiff has remained stubbornly litigious and has caused the defendants and third parties additional unnecessary expenses for which they are entitled to reimbursement under the provisions of section 41 of the Civil Practice Act.

We believe that the amount of reasonable attorneys’ fees and expenses incurred in connection with the appeal should be determined at a full hearing, and that such determination should be made by the trial court, upon petition and answer or other appropriate pleadings, and after the evidence has been received on this issue.

Thus, we affirm the judgment of the trial court and grant the petitions for the assessment of additional reasonable attorneys’ fees and expenses incurred in connection with this appeal, and we remand the case to the trial court for further proceedings in this respect, consistent with the views expressed herein.

Judgments affirmed; petitions for an award of reasonable attorneys’ fees and expenses in connection with this appeal allowed, and such petitions are remanded to the trial court to determine the amount of such fees and expenses.

ABRAHAMSON and SEIDENFELD, JJ., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Robert Newby, Defendant-Appellant.
    Gen. No. 11,122. (Abstract of Decision.)
    Fourth District.
    April 28, 1970.


author: SMITH, P. J.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Marjorie Christeson, Jack Canady and Robert Stanton, Defendants, Marjorie Christeson and Jack Canady, Defendants-Appellants.
    Gen. No. 11,130.
    Fourth District.
    April 28, 1970.

      Edgar R. Kelly, of East Alton, for appellants.
    Thomas P. Carmody, State’s Attorney of Macoupin County, of Carlinville, and Joseph P. Koval, Assistant State’s Attorney, for appellee.
   SMITH, P. J.

The defendants, Marjorie Christeson and Jack Canady, appeal from convictions of burglary and theft and sentences of one to eight years for Christeson and two to ten years for Canady. Errors assigned are (1) failure of the State to prove entry into the building burglarized, (2) the indictment was defective for a failure to allege ownership of the property, and (3) the trial court denied a motion to suppress evidence obtained as a result of an illegal search. The errors assigned are without substance and are purely illusory.

The Landreth Lumber Company in Bunker Hill, Macoupin County, Illinois, was burglarized and some fifty-nine items of power tools and office machines were taken. On the following day, police officers in Madison County searched the property at #6 Forest Drive, Godfrey, Illinois, under the authority of a search warrant issued for the seizure of a television set taken in a theft from the Alton Home Improvement Company. They found the set in the dining room, confirmed its identification and seized it. The officers observed numerous power tools on the floor of the bedroom at the end of the hall.

The bedroom door was open and the power tools were plainly visible from the area where the officers were standing. They confirmed the report from the Macoupin County sheriff’s office that similar property had been stolen and ordered the tools seized. They were subsequently identified on the trial as the property of Landreth Lumber Company. The defendants were arrested at the time of the seizure of these items.

The defendants contend that the officers were unlawfully on the premises when they seized the property involved in this case for the reason that the affidavit authorizing the issuance of the warrant for the recovery of the television set did not state that the informant of the affiant had obtained his information from personal knowledge and not from hearsay. For that reason they assert that the search warrant was within the perimeter of United States v. Davis, 402 F2d 171, and defendants’ motion to suppress the evidence in this case should have been allowed. The affidavit in this case is not subject to the infirmities mentioned in Davis. The affidavit stated that a police officer had stopped one Weinrich after receiving a report from one Larry Parks that he had seen Weinrich unloading large crates at #6 Forest Drive, and that the officer found an identification card in the car of Weinrich, together with the confirmation card of the establishment from which the television set was taken. It is clear that there were adequate grounds for the issuance of the search warrant and that the officers were thus properly upon the premises when they seized the tools and office equipment involved in this case. Their seizure comes squarely within what has been called the “plain view” or “wandering eye” doctrine. People v. Barbee, 35 Ill2d 407, 220 NE2d 401; Harris v. United States, 390 US 234, 19 L Ed2d 1067, 88 S Ct 992; People v. Vaglica, 99 Ill App2d 194, 240 NE2d 271. The trial court properly denied the motion to suppress. It is a contradiction within itself to say that it is necessary to search for that which is within plain sight. As was stated in Harris v. United States, 19 L Ed2d 1067, 1069, “It has long been settled that objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence.” The trial court properly denied the motion to suppress.

Defendants also complain that the indictment in the case charges that the owner of the stolen property was Herman Landreth doing business as Landreth Lumber Company whereas the testimony showed that he was in partnership with his nephew, Charles Landreth. Defendants cite no authority for their position and indeed the authorities appear to be otherwise. In People v. Dell, 77 Ill App2d 318, 222 NE2d 357, the indictment charged the stealing of 129 pair of pants owned by an individual. At the trial it was testified that he was just a partner with another. The partner also testified that they were partnership property. It was there held that the specific ownership of the stolen property is not necessary if it is shown the individual in whom ownership is alleged had some possessory interest in the property at the time of the offense. Indeed the Criminal Code defines an owner as a person, other than the offender, who has possession or any other interest in the property involved. In People v. Foster, 30 Ill2d 106, 195 NE2d 700, the indictment charged the defendant with breaking and entering one Nickerson’s house and the proof showed that Nickerson was merely a tenant. The proof in that case also showed that some of the stolen property was owned by another person. The court denied the defendant’s contention of a variance between the indictment and the proof and held that it is not necessary to allege or prove the legal ownership of the property but that a possessory interest is sufficient.

The State’s case is based upon the proposition that the exclusive and unexplained possession of recently stolen property by an accused person gives rise to an inference of guilt which may be sufficient to sustain a conviction unless there are other facts and eircumstances which leave in the mind of the jury a reasonable doubt as to guilt. This is a correct statement of the law. People v. Pride, 16 Ill2d 82, 156 NE2d 551; People v. Barnes, 26 Ill2d 563, 188 NE2d 7; People v. Reynolds, 27 Ill2d 523, 190 NE2d 301. The requirement of exclusive possession is satisfied by joint or shared possession. People v. Voleta, 57 Ill App2d 279, 206 NE2d 737; People v. Moore, 76 Ill App2d 326, 222 NE2d 95; People v. Reynolds, 27 Ill2d 523, 190 NE2d 301; People v. Strutynski, 367 Ill 551, 12 NE2d 628. Christeson did not testify on the trial. Canady did and testified that he had an apartment elsewhere. Three witnesses testified that Canady resided with Christeson at #6 Forest Drive. When the officers arrived at Christeson’s residence to conduct a search, Christeson was at home and admitted the officers. While the search was going on, Canady drove up in Christeson’s 1966 Lincoln Continental, entered the house without knocking and demanded to know what was going on. Subsequently Canady entered the bedroom with Christeson when she changed her clothes prior to leaving the premises with the arresting officers. From this record, the jury could reasonably conclude that Canady’s interest in the premises and in the defendant Christeson was more than casual, that they did live together at #6 Forest Drive, and that the exclusive possession of recently stolen property without explanation in both defendants was clearly established.

The verdict of the jury and the judgment entered thereon were in accordance with the law and the evidence and the judgment is accordingly affirmed.

Affirmed.

TRAPP and MILLS, JJ., concur.