author: MR. JUSTICE SEIDENFELD MOEAN, J.,

text:
    Marie Ingersoll, Administratrix of the Estate of Wayne Ingersoll, Deceased, Plaintiff-Appellant, v. Walter Robert Klein, Also Known as Bob Klein, Individually and as Special Administrator of the Estate of William Klein, Deceased, Defendants-Appellees.
    Gen. No. 68-108.
    Second District.
    February 25, 1969.

      J. Edward Jones, of Blue Island, for appellant.
    Gunner and Keller, of Dixon, for appellees.
   MR. JUSTICE SEIDENFELD

delivered the opinion of the court.

Plaintiff appeals from an order dismissing her complaint for wrongful death. The complaint alleges an action under the laws of Iowa. The order dismissing the complaint states that the right of action of the plaintiff is to be determined by reference to the law of Illinois rather than the law of Iowa.

The plaintiff urges procedural error as well as error in the determination of the applicable law.

The complaint contains four separate counts in which the plaintiff alleges the right to recover from the defendants for the death of Wayne Ingersoll, which occurred by drowning on January 12th, 1963, in the Mississippi River. Count I of the complaint alleges a violation of chapter 321.494 of the Iowa Code. This count charges the defendant, Walter Robert Klein, with “reckless operation” of an automobile in driving on the ice on the surface of the Mississippi River, alleged to be frozen over and safe for driving, except where there were air pockets. It is further alleged that at a point near the Iowa bank of the river, the exact location of which is not known to the plaintiff, there was an air pocket under the ice which was known to the defendants.

A second count of the complaint charges the same defendant, Walter Robert Klein, with driving a vehicle under the influence of intoxicating liquor in violation of the same Iowa statute referred to in count I.

The third count of the complaint is directed against William C. Klein, the father of Walter Robert Klein, on the theory that he was liable for his son’s acts causing the death. This count is based upon chapter 321.493 of the Iowa Code.

Count four of the complaint is also directed against the defendant, William C. Klein, and based upon allegations contained in other counts.

Defendants first filed an answer denying that Iowa law was applicable to the case and also filed interrogatories to be answered by the plaintiff. There was no further activity in the case until almost two years later when plaintiff filed a notice and motion to obtain leave to answer interrogatories and requesting that the court strike the answer of the defendants for the reason that it was not verified and contained general issues. Plaintiff was given leave to file an answer to interrogatories, and defendants’ answer was ordered stricken with leave to file an amended answer. Several days later, on oral motion of the attorneys for the defendants and without notice to the plaintiff, the order was modified to provide that the defendants might answer or plead within the time granted. The defendants filed a request for admissions of facts and the plaintiff admitted the following facts:

“1. That the plaintiff and all that may benefit from the law suit reside in Illinois.
“2. That the deceased Wayne Ingersoll at the time of his death and immediately prior thereto was a resident of Illinois.
“3. That the deceased Wayne Ingersoll met his death by drowning in the Mississippi River.”

Thereafter, defendants filed a motion to strike and dismiss the complaint. In that motion the defendants requested that the court strike the paragraphs of the complaint making reference to Iowa law, alleging that the State of Iowa had no significant interest in the suit and alleging that the State of Illinois had significant interests. Thereafter, defendants amended their motion to set up the restrictions contained in chapter 70, section 2 of the Ill Rev Stats 1961, providing generally that no action shall be brought or prosecuted in Illinois to recover damages for death occurring outside of the State of Illinois.

The court subsequently entered an order holding that the cause of action might be prosecuted in the State of Illinois, but also .finding that the laws of the State of Illinois, rather than the laws of the State of Iowa, determine the rights of the parties. An order dismissing the complaint was entered and the plaintiff was given leave to file an amended complaint. Before the time allotted, plaintiff moved and obtained an order to amend the complaint by substituting the personal representative of the defendant, William Klein, as a defendant in the suit, suggesting the death of Klein; and plaintiff further elected to stand on her complaint as amended.

We will approach the procedural question first. Plaintiff argues that by filing an answer to the complaint the defendants have admitted the sufficiency of the complaint. They further argue that since the order as originally entered gave leave to file an amended answer, it was not proper to get leave from the court to plead rather than answer without having given notice in advance to the plaintiff. (A further portion of the procedural argument is directed at defendants’ amended motion referring to chapter 70, section 2, supra, but defendants have conceded that this portion of the statute is unconstitutional under the full faith and credit clause of the U. S. Constitution, under a U. S. Supreme Court ruling on a similar provision. The defendants state that they no longer rely upon that portion of their amended motion to strike.)

Plaintiff’s argument that the defendants by first answering have irrevocably admitted that the complaint states a cause of action is not persuasive. The Civil Practice Act expresses a purpose to construe pleadings and amendments liberally with a view to doing substantial justice between the parties and determining cases according to the substantive rights of the parties, consistent with fair and orderly procedures. See Ill Rev Stats 1965, c 110, §§ 4, 83, 46. The trial court acted within its discretion under the Civil Practice Act, in permitting the defendant, after the answer had been stricken on the motion of the plaintiff for technical deficiencies, to further plead by way of motion. The question of the nonapplicability of the Iowa law set forth in the complaint was raised in the answer and the plaintiff has not shown in what manner she has been damaged or has lost any rights by allowing the motion to dismiss to be filed. Morris v. Goldthorp, 390 Ill 186, 189, 60 NE2d 857 (1945); Kovalik v. Baldwin, 3 Ill App2d 210, 212, 121 NE2d 53 (1954). While in the authorities cited the court granted defendant leave to withdraw his answer, and in the instant case the answer was stricken on motion of the other party, we can make no meaningful distinction based on those differences.

Plaintiff has properly complained of the action of the defendants in securing a change in the language of the order dismissing the answer by ex parte application to the court below. We most strongly disapprove of such conduct. However, under the circumstances of this case we can find no such damage to the plaintiff by this conduct that would justify the striking down of the motion.

An issue has also been raised as to whether the motion to dismiss was sufficient to properly raise the dispute of applicable law. While the motion is not labeled, defendants contend that the motions made under section 45 of the Civil Practice Act could equally be considered proper under section 48(1) of the Civil Practice Act, and. that their request for admissions of fact can be used as an affidavit in connection with such motion. Plaintiff argues that the matters relied upon by the defendants to contest the applicable law do not appear on the face of the complaint and that, therefore, the motion that defendants have made is under section 48. Plaintiff continues that such motion is incorrect as the ground contested does not fall under any of the enumerated sections of section 48, supporting his position with the case of Hansen v. Raleigh, 391 Ill 536, 63 NE2d 851 (1945).

That case lends support to the proposition that affidavits cannot properly be considered on the motion made under the provisions of section 45. But section 48 is intended to supplement section 45. (See Smith-Hurd Illinois Annotated Statutes, chapter 110, section 48, page 354.) Both sections presuppose that the moving party considers a pleading attacked to be so insufficient as to obviate further pleading (Barrett v. Continental Ill. Nat. Bank & Trust Co. of Chicago, 2 Ill App2d 70, 118 NE2d 631 (1954)), and a motion to dismiss may be properly sustained whether it be regarded as filed under section 45 or under section 48 where the motion points out particular defects which render the complaint insufficient. See Greenberg v. Waukegan-Caldwell Bldg. Corp., 27 Ill2d 620, 624, 190 NE2d 335 (1963).

It is noted that section 48, subsection (i) of the Civil Practice Act was added subsequent to the decision in Hansen v. Raleigh (supra). Section 48 provides for a motion to be pleaded where “the claim or demand asserted against defendant is barred by other affirmative matter avoiding the legal effect of or defeating the claim or demand.” (Subsection i.) We believe this to be sufficiently broad to encompass the basic issue as to which state’s law is to apply to the action.

We consider next the merits of the judge’s ruling on the motion. We consider the well pleaded facts admitted by the motion to be as follows: The plaintiff as administratrix is a resident of Illinois and the Estate is pending in Illinois; the deceased was a resident of Illinois at the time of his death; the accident occurred in that part of the Mississippi River in the territorial jurisdiction of the State of Iowa (a disputed fact but well pleaded and therefore presumed to be true) ; the suit has been brought in the Hlinois court for wrongful death of the decedent; the defendants are Illinois residents. The request for, and the admissions of fact add the additional circumstance that all persons who may obtain any benefit from the lawsuit are residents of Illinois. It further appears from the answer to interrogatories that the sole eyewitness, Walter Robert Klein, is a resident of Illinois, the people arriving on the scene were Illinois residents, the photographer was an Illinois resident, the people having knowledge of the defendant’s intoxication were Illinois residents, that places where defendant drank prior to the incident were Illinois establishments, that deceased worked in Illinois and that all of the next of kin of decedent were Illinois residents.

We are of the opinion that the record establishes that Illinois has the most significant relationship with the occurrence and with the parties to the occurrence, while the only contact with the State of Iowa is the alleged situs of the decedent’s death; and that the application of the Illinois Wrongful Death Act with reference to its residents should not offend the comity of interstate relationships between the states of Illinois and Iowa. While we are urged by plaintiff to apply the mechanical rule of the lex loci delicti, for the reasons which we have indicated in the majority opinion in Graham v. General U. S. Grant Post No. 2665, 97 Ill App2d 139, 239 NE2d 856 (1968), we are not so inclined. We believe that the choice influencing considerations which we there referred to, when applied to the admitted facts in the case, dictate that the cause of action here should be determined under Illinois law.

The parties are all residents of Illinois and no citizen of Iowa is involved so that no harm is involved to the interests of Iowa by the selection of applicable law. The law of the forum differs from that of Iowa in the areas of recovery limits, nature of the proof and owners’ liability, and Illinois therefore advances its interest in applying its policy determinations to its residents appearing in its courts. Only the last event occurred in Iowa while it is apparent that much of the conduct leading to that event occurred in Illinois, and was witnessed by Illinois residents.

Illinois, as both the forum state and the domicile of potential beneficiaries, has a more significant interest in the recovery of damages for wrongful death than does Iowa, whose only interest arises from the fortuitous occurrence of the accident in that state.

We, therefore, affirm.

Affirmed.

DAVIS, J., concurs.

MOEAN, J.,

dissents:

In the case of Graham v. General U. S. Grant Post No. 2665, 97 Ill App2d 139, 239 NE2d 856 (1968), the majority opinion gave the Illinois Dram Shop Act (Ill Rev Stats 1965, c 43, § 94 et seq.) extraterritorial life by applying its provisions beyond our state border to an accident occurring in the State of Wisconsin. After doing so, it then became necessary to depart from the lex loci delicti commissi rule followed by our Supreme Court, and the majority did so.

In the instant case, although the question of extraterritorial jurisdiction of the Wrongful Death Act (Ill Rev Stats 1961, c 70, §§ 1 & 2) was not raised, still the question of whether the Act is applicable is present. In effect the trial court extended the Act into Iowa where the incident took place. It should be noted that this holding took place before this Court decided the Graham case, supra. Eegardless, the application of the rule of lex loci delicti is the main question presented herein.

While I concur with the opinion as it relates to the procedural holdings, I must dissent from the majority’s view as it pertains to the question of the substantive law involved.

Where the issue is one of procedure, the law of the forum will apply; however, if the issue is one of substantive rights of the parties, then the lex loci delicti or law of the place of the wrong generally governs, except where to do so would be contrary to the public policy of the forum. Marchlik v. Coronet Ins. Co., 40 Ill2d 327, 329-330, 239 NE2d 799 (1968); Millsap v. Central Wisconsin Motor Transp. Co., 41 Ill App2d 1, 8, 239 NE2d 285 (1963). Further, if the foreign law sought to be enforced is different than the law of the forum, this in and of itself does not make it unenforceable as against public policy, Marchlik case, supra, page 333.

The defendant has not shown the Iowa law, upon which the plaintiff seeks recovery, to be against the public policy of Illinois; therefore, the Iowa law should be enforced.

For the reasons stated above, I would reverse and remand.

       “The owner or operator of a motor vehicle shall not be liable for any damages to any passenger or person riding in said motor vehicle as a guest or by invitation and not for hire unless damage is caused as a result of the driver of said motor vehicle being under the influence of intoxicating liquor or because of the reckless operation by him of such motor vehicle.”

       “In all cases where damage is done by any car by reason of the negligence of the driver, and driven with the consent of the owner, the owner of the car shall be liable for such damage.”

       “2. Plaintiffs in action—Beneficiaries—Amount of damages— Distribution—Limitation of actions—Right of action outside of state—Next of Kin—Contributory negligence.) § 2. Every such action shall be brought by and in the names of the personal representatives of such deceased person, and, except as otherwise hereinafter provided, the amount recovered in every such action shall be for the exclusive benefit of the widow and next of kin of such deceased person and in every such action ....
      “. . . Provided, further, that no action shall be brought or prosecuted in this State to recover damages for a death occurring outside of this State where a right of action for such death exists under the laws of the place where such death occurred and service of process in such suit may be had upon the defendant in such place. . . .
      “As amended by act approved July 8, 1957. L 1957, p 1939.”


source: Caselaw Access Project

author: MR. JUSTICE SEIDENFELD

license: Public Domain

text:
    Moser Lumber, Inc., an Illinois Corporation, Plaintiff-Appellee, v. Edward F. Morgan and Elsie Morgan, His Wife, and W. D. Sanders Construction Company, an Illinois Corporation, Defendants-Appellants.
    Gen. No. 68-115.
    Second District.
    February 25, 1969.

      Orstrom, Johnson and Wherry, of Glen Ellyn, and Sundheim, Morgan and Sundheim, of Chicago, for appellants.
    Donovan, Dichtl, Atten and Mountcastle, of Wheaton, for appellee.
   MR. JUSTICE SEIDENFELD

delivered the opinion of the court.

Edward F. Morgan and Elsie Morgan, defendants, as the owners of certain real estate, appeal from a decree foreclosing a mechanics’ lien in the action brought by the Moser Lumber, Inc., plaintiff, as a materialman.

The issues presented are whether the plaintiff proved the delivery of the material; whether plaintiff served notice of mechanics’ lien within sixty days following the completion of the last delivery; whether or not plaintiff is entitled to lien rights for labor; whether the defendant owners were entitled to a counterclaim (which was stricken by the court); whether the plaintiff materialman properly joined the general contractor as a party defendant; and whether the decree which enforced the lien against the owners solely was valid and enforceable.

The plaintiff called two witnesses to prove delivery. Walter D. Sanders, the general contractor, testified that he purchased the bulk of the lumber and other building materials from the plaintiff on an open account; that he had paid the plaintiff some money on account, and had been billed by the plaintiff for a balance of $4,168.31 with which he had no disagreement.

Harold W. Lehman, the vice president of the plaintiff corporation, testified that his duties were to keep the records of the firm and exercise general supervision, and to arrange for the sale of supplies and material on credit, which he did with Mr. Sanders in August of 1963. He testified that records for open accounts on a given job were recorded by a Burroughs Sensimatic machine which records the date, the invoice number, the amount of debit or credit and the balance; recorded on ledger cards. In addition, there are seventy numbered invoices which describe the material subsequently delivered. Ledger cards do not record what material is involved, but the ledger cards do contain the invoice numbers. The invoices on the Morgan job represent lumber, millwork, hardware and labor, also including charges for the roofing contract and labor for installing the flooring and plywood. By examining the ledger card, Mr. Lehman testified, he could determine the dates on which the material was delivered, as a charge was not entered on the ledger card until material is delivered, and, therefore, to the best of his knowledge the material was delivered to the Morgan job as shown on the records. All of the invoices were marked sold to the contractor and addressed to the Morgan job location.

Plaintiff produced no witnesses who delivered any material to the Morgan job site or identified the signature or the person who signed approximately nineteen of the seventy invoices.

Defendants called Lehman as their own witness and on examination he testified to the furnishing of materials and the performance by Moser of labor on the Morgan job. Defendants also called their architect, Barclay, who testified to the installation of cedar shakes, entrances, flooring, a countertop and locks, and in addition referred to several of the material invoices by number.

Defendants offered no rebuttal testimony to show that the materials and labor were not incorporated in the home and did not deny that the balance claimed was not within the total contract price.

The amount of the lien decreed was $4,270.28. In order to sustain the lien, proof of delivery must be shown within the provisions of Ill Rev Stats 1967, c 82, § 7. Under this section the materialman is relieved in the first instance, from the burden of proving that the materials actually entered into the construction of the building. Proof of delivery to the owner or his agent, or proof of delivery at the place where such building is being constructed would constitute proof prima facie of that fact. The owners are not precluded from rebutting by competent evidence the fact that the materials were delivered for the purpose of use in the construction of the building. Colp v. First Baptist Church of Murphysboro, 341 Ill 73, 79, 173 NE 67 (1930).

Defendants argue that the quality of the proof is insufficient to make a prima facie case. Defendants argue principally that the evidence of the register sheets and invoices are nothing more than proof of the state of the account between the plaintiff materialman and the general contractor; that there is no testimony by anyone who had anything to do with loading or unloading the plaintiff’s truck; that there was no proof of who signed the receipted invoices, which in any event, were only a portion of the total invoices; and that the testimony as to the major items which went into the house offered no proof as to the remaining items inasmuch as a substantial part of the cost had been paid.

While we agree that the quality of the proof of delivery was minimal, we hold that it was sufficient to prove a prima facie case of delivery by proof of established business practices which was sufficient to establish the lien in view of the lack of any evidence to show that the material was not used in the building.

We also find no merit in defendants’ argument that plaintiff failed to serve the notice of mechanics’ lien within the sixty days, after delivery of the final material to the job, under section 24 of the Mechanics’ Lien Act (Ill Rev Stats 1967, c 82, § 24). While this argument is based on the fact that there were a number of small items delivered to the job after the owners had moved in upon substantial completion of the home, it appeared that all of the items delivered were sold to the general contractor, Sanders, ostensibly at his request. While defendants suggest that there was a conspiracy between the general contractor and the plaintiff to avoid the effect of the notice provision, there is no evidence in the record to this effect, as defendants also concede in their argument. This case is distinguishable from the case cited by plaintiff, Lyon & Sons Lumber & Mfg. Co. v. Ellis, 33 Ill App2d 398, 178 NE2d 407 (1962), where not only was the price of the item obtained by the contractor only sixty-eight cents, but also, and more importantly, the item was refused by the owners and under the circumstances the contractor was not the owners’ agent in the transaction.

Defendants also urge error in the inclusion of lien rights for labor performed. They argue that the complaint refers only to materials and supplies, and that even though the testimony of the witness, Lehman, allegedly referred to the labor involved as shown on various invoices, there was a fatal variance between the proof and the pleading. However, the mechanics’ lien notice attached to the complaint and made a part of it does refer to labor. There is no showing that defendants have been materially or substantially injured or prejudiced by the claimed variance between the plaintiff’s proof and pleading and within the rule that pleadings should be liberally construed, we find no merit to this claim of error. Fitzgerald v. Van Buskirk, 96 Ill App2d 432, 437, 239 NE2d 330 (1968); De Anguera v. Arreguin, 92 Ill App2d 381, 384, 234 NE2d 808 (1968).

We believe, however, that the court erred in striking the defendants’ counterclaim against the plaintiff, and that the case must be remanded for a trial on the merits of the counterclaim. It appears that a substantial portion of plaintiff’s proof is for labor and material for roofing and flooring which the plaintiff had subcontracted to two different contractors. The Morgans filed a counterclaim against the plaintiff for the damages resulting from alleged improper workmanship with respect to the roof and the flooring. The plaintiff filed a motion to dismiss the counterclaim on the grounds that the plaintiff did not perform the work associated with the roof and the flooring, but rather that it was contracted to two independent contractors. It would be grossly inequitable for the plaintiff to accept the benefit of the work of its independent contractors, sue for a lien based on such work, and yet be insulated from a claim for negligent performance of the work.

The parties have considered the issue in context of cases involving personal injury claims by a third person against an employer’s independent contractor. Plaintiff cites authorities for the rule that he is not liable in tort for the negligence of the independent contractors (e. g. Hulke v. International Mfg. Co., 14 Ill App2d 5, 32-33, 142 NE2d 717 (1957)), and that defendants should have set off the alleged damages against Sanders, the general contractor. Defendants rejoin with authorities for the proposition that plaintiff, in seeking a lien for the work done by the independent contractor, elected to treat that work as its own and thereby ratified and became answerable for damages (e. g., 41 Am Jur2d 36, page 796; and see Colbert v. Holland Furnace Co., 333 Ill 78, 81, 164 NE 162 (1928) cited therein).

We perceive some difficulties in engrafting these rules on mechanics’ lien proceedings. However, in principle, the purport of the cited cases is to place the burden of answering for damages upon the party who has ratified and taken the responsibility and benefit of the work of the independent contractor. That principle should be applied here in the same manner as if the independent contractor had assigned its claim to plaintiff, subject to the defenses against it.

Nor do we believe that the counterclaim must be alleged against the general contractor where it appears, as it does here, that the general contractor has not been paid for the balance of the contract, which balance is substantially in the amount of the lien claimed by the plaintiff. The policy of the mechanics’ lien statute favors the expeditious disposition of all of the various interests of the parties and this policy is best accomplished by requiring the plaintiff to answer the defendants’ counterclaim. Park Ave. Lumber v. Nils A. Hofverberg, Inc., 76 Ill App2d 334, 222 NE2d 49 (1966); Anderson v. Gousset, 60 Ill App2d 309, 208 NE2d 37 (1965).

In aid of the court on remand, we will consider the remaining claims of error.

Defendants urge that the court erred in permitting plaintiff to amend its complaint by adding Walter D. Sanders as an additional party defendant, individually, after the ease had been closed. The suit had made W. D. Sanders Construction Company, an Illinois Corporation, a defendant, and the case had proceeded in that manner. At the time of the amendment, which the court permitted, more than two years had elapsed from the completion of the last work alleged and the defendants claim that the amendment should have been barred under the provisions of Ill Rev Stats 1967, c 82, § 9. The defendants make the additional claim that the court should have dismissed the suit in that the Mechanics’ Lien Act requires that both the contractor and the owner jointly must be made parties to the suit under the provisions of Ill Rev Stats 1967, c 82, § 28.

While the plaintiff cited section 46(1) of the Civil Practice Act (Ill Rev Stats 1967, c 110, § 46) as the grounds for the amendment rather than the then Section 46(4), which is the proper paragraph, we believe that the court’s exercise of discretion was proper under the record. On the record, the court could properly find that the failure to join Sanders in his individual capacity was “inadvertent” as that term is used in the statute. De Anguera v. Arreguin, supra; Silver v. Lee Shell Equipment Corp., 31 Ill App2d 266, 270, 175 NE2d 287 (1961).

Defendants’ last claim of error is that the decree is void because the judgment is not against the owners and general contractors jointly, which they argue is required by section 28 of chapter 82 (supra). While conceding that the decree does not name Sanders, or make any provisions against him, the plaintiff argues that section 28 has no application where, as here, plaintiff seeks only a lien and does not seek to secure a money judgment. Plaintiff suggests that where the subcontractor seeks to establish a lien only, that the provisions which cover an action by a general contractor become applicable. Neither of the parties cite any cases or authorities in support of their contentions.

In Culver v. Elwell, 73 Ill 536 (1874), a decree, in a proceeding by a subcontractor, without any finding or judgment as to the original contractor, who was in the suit, was declared erroneous. The court stated, on page 539:

“Another point made by appellant is, that the verdict and decree are not in conformity with the statute. Section 7 of the act provides that the decree shall be entered against the owner and the original contractor. Both the defendants were duly served with process, and both in court to receive its judgment, yet we find no verdict, judgment or decree against Lockman, the original contractor, who was the real debtor of these claimants, nor was he dismissed out of the case.
“It is reasonable, that on a contract for work to be completed by a time certain, and for default thereof, the owner should have damages at a certain rate per day, until the work was completed. The owner should be entitled to retain this sum as against the claim of a subcontractor. As we understand it, the money which may remain in the hands of the owner, after all the deductions to which he is entitled are made, is the fund out of which the subcontractors are to be paid, and is the only fund. This has not been found by the jury or by the decree. Neither of them shows how much, after all proper deductions, was due from appellant to the original contractor. This is indispensable.”

In O’Brien v. Gooding, 194 Ill 466, 474, 475, 62 NE 898 (1902), the court held that section 29 of the Mechanics’ Lien Act of 1895 (now, substantially, section 28 as referred to herein) refers to subcontractors only, and the suits and judgment therein mentioned must be brought and rendered against both the owner and the contractor jointly to be of effect. Though in some sense the subcontractor may have his suit governed by the rules applicable to original contractor’s suits, he must still comply with Section 28 of the Mechanics’ Lien Act. See Love, Illinois Mechanics’ Liens, 2nd Ed § 133, page 390.

It is recognized that in a situation where no personal decree can be secured against the original contractor, a decree for foreclosure of a mechanics’ lien without personal judgment against the owner, as in this case, can stand. Mueller Lumber Co. v. Bollinger, 160 Ill App 402, 406-407 (1911). However, in the case before us, there is no situation similar to Mueller. Here the original contractor entered his personal appearance and there was no finding that a judgment against him would be unavailing.

We, therefore, reverse and remand for further proceedings in accordance with this opinion.

Reversed and remanded with directions.

MORAN, P. J. and DAVIS, J., concur.

        “7. Limitation as against third parties—Claim for lien—Errors—Proof of delivery sufficient—Separate lots or buildings. § 7. . . . nor shall any such lien for material be defeated because of lack of proof that the material after the delivery thereof, actually entered into the construction of such building or improvement, . . . Provided, it is shown that such material was delivered either to said owner or his agent for such building or improvement, to be used in said building or improvement, or at the place where said building or improvement was being constructed, . . . for the purpose of being employed in the process of construction . . . .” (Emphasis supplied.)

       “28. Claim for lien—Suits—Limit as to time—Manner. § 28. . . . All suits and actions by sub-contractors shall be against both contractor and owner jointly, and no decree or judgment shall be rendered therein until both are duly brought before the court . . . . All such judgments, where the lien is established shall be against both jointly, . . . .”


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Eugene Wesley Kinzell, Defendant-Appellant.
    Gen. No. 68-118.
    Second District.
    February 25, 1969.

      John T. Beynon, Public Defender, of Rockford, for appellant.
    Philip G. Reinhard, State’s Attorney of Winnebago County, of Rockford, and Daniel D. Doyle, Assistant State’s Attorney, for appellee.
   MR. JUSTICE SEIDENFELD

delivered the opinion of the court.

The defendant was indicted for murder. After a jury trial a verdict was returned finding him guilty of that offense. Defendant appeals from the judgment of conviction on the verdict and the sentence to a term of 25 to 50 years.

The defendant contends that the State failed to prove the defendant guilty beyond a reasonable doubt; that the trial court committed reversible error in not interrupting the jury’s deliberation; and that the court committed reversible error in the giving of a certain instruction.

Georgia Jerry testified for the State that on the date of the offense, August 20th, 1967, she was twenty-one years old and lived with the thirty-seven-year-old defendant in a two-room bungalow in South Beloit, Illinois. She and the defendant were unmarried. Her two children, Michial, age 8 months, the deceased, and La Donna, age 2 years, resided with them. Some time before 10:00 a. m. she went to the market for cigarettes. At the time she left the house, Michial was in an infant seat in the living room sitting on the floor. Mrs. Jerry was out of the house for fifteen minutes and upon her return the child was not crying. When she returned, she placed Miehial on an adult double bed in the bedroom and she and the defendant had coffee in the other room; that roughly about 9:00 a. m. she heard a thump and went in and found Miehial lying on the floor on his back beside the bed. Michial’s mother picked him up, he was crying; she rubbed the back of his head and found just a small red mark, but saw no soft spots. She brought Miehial into the other room to give him his bottle. He was crying and would not take the bottle, so she gave him a few light swats on the seat, which made him cry more.

The defendant took the baby from his mother and said that if he was going to keep crying he would give him something to cry about, and he sat him down on the davenport. The defendant then took some warm water in a glass and threw it in Michial’s face. Miehial cried a lot harder and the defendant got some more water and threw it on his face. The defendant picked up Miehial and gave him a few light swats. Michial’s mother put him in a tub of water to calm him, but he screamed louder and she took him out and changed him. The defendant then took Miehial and placed him facing the davenport with his arms upon the cushion. Miehial kept crying and he fell once to his seat and then on his back and his head. The defendant picked Miehial up and stood him against the davenport again. The child continued to cry.

Mrs. Jerry left about 10:00 a. m. to get some gas, with the child remaining in that same position, standing at the davenport and crying. She was gone for about fifteen or twenty minutes and upon her return the child was standing at the davenport yet, crying. The defendant said that the child wouldn’t stop crying and he would get him tired enough to be exhausted and Miehial would have reason to cry the next time. The defendant sat down next to Miehial on the davenport and snapped his nose and tapped him lightly on the back. The child screamed louder and then fell a second time. Mrs. Jerry put a blanket on the linoleum floor so Michial wouldn’t hurt himself. The child slowed down on his crying and she laid him on the davenport where he fell asleep, roughly about 1:00 or 1:30 p. m. When she laid the child down he was worn out and sobbing a little and his arms and legs were jerking some.

At approximately 2:00 p. m., Mrs. Jerry left the house to pick up children’s clothing and returned at approximately 6:00 p. m. The defendant was in the house alone with the children when she left. At one time in the morning Mrs. Jerry told LaDonna to go out and play and she didn’t listen to her mother. The defendant said “if you give an order, you have to make her mind” and he took LaDonna by the hand and put her outside. La Donna’s mother did not see her go outside, but a few minutes later heard her crying on the front step and told her to come in.

When Mrs. Jerry returned to the house the defendant came out and said he couldn’t wake up Mike and that we should get him to the hospital. She saw the child lying on the davenport, pale and limp. At that time she did not know whether he was alive or not. The defendant would not allow her to pick Michial up, saying they should get going; he wrapped the baby up in a blanket and carried him to the hospital in the car. On the way to the hospital Michial’s mother asked if Mike was O. K. and the defendant said yes he is still alive like he was in a coma.

A roofer testified for the State, that he was working some fifty-five or sixty feet south of the home in which Mrs. Jerry lived; that between 10:00 a. m. and 1:10 p. m. on the day in question, he heard continuous crying from a child and violent arguments between a man and a woman. He observed, at one point during the loud argument, that the screen door flew open and a man threw the two-year-old girl off the step into the backyard.

The Coroner saw the child at the hospital about 6:20 p. m. or shortly thereafter and estimated, based upon evidence of rigor mortis, that death had occurred roughly three hours before. He testified that he observed a soft, spongy area on the right side of the child’s head in the rear which was obvious to the eye and definitely palpable to touch.

The admitting nurse at the hospital also testified to having immediately observed the soft, spongy area on the right side of the head which was visible as a swelling and soft and spongy by touch.

The pathologist testified to the softening on one side of the child’s head which he characterized as “quite noticeable,” and to a small bruise on the right side of the neck, when he first saw the child. On examination he found a large, depressed skull fracture on the right side of the head, and testified that the softness was the product of the fracture. He testified that the softness would have been there from the beginning, immediately after the skull was fractured; that on the left side of the head, opposite the skull fracture, there was another large area of hemorrhaging, indicating a separate blow from an object with a contoured surface; that there were two smaller areas of hemorrhage, one on the forehead and one near the back of the head.

The pathologist further gave the opinion that it was unlikely that falls from a standing position could have caused either of the two major head injuries; but that a fall from the bed, as described, could account for one, but not both, of the two major injuries. He testified to the opinion that the cause of Michial’s death was the resulting hemorrhage beneath the covering of the brain from the fracture. The pathologist further testified that the throwing of the glass of water in the face, the snapping of the nose, or a pat on the cheek would not have been sufficient to cause any of the injuries described.

The defendant did not testify or offer any evidence. The jury deliberated from approximately 3:45 p. m. on January 16th, 1968, until 1:00 a. m. on January 17th, 1968, when it returned the verdict.

The indictment charged the defendant in the language of the statute, with hitting and striking Michial, knowing that such acts created a strong probability of death or great bodily harm. (Ill Rev Stats 1967, c 38, § 9-1.) From the evidence defendant argues that the State has failed to prove that the defendant committed an act which caused the death of Michial Jerry, and that the State thus has not proved the corpus delicti. The State argues, and we believe correctly, that the evidence justified a finding beyond a reasonable doubt that the cause of death was a blow or blows to the head of the victim while in the exclusive control of the defendant; that there was evidence of a series of deliberate acts of physical mistreatment clearly demonstrating the defendant’s animosity and statutory intent.

In the trial for murder the corpus delicti consists of two elements—the fact of death, and the fact that death was produced by the criminal agency of some person, but does not in itself include the person who committed the crime, although that is one of the elements necessary to be proved beyond a reasonable doubt to convict the defendant. People v. Manske, 399 Ill 176, 183, 77 NE2d 164 (1948). Direct testimony is not required to prove the means causing the death of the victim. The means and manner of death may be inferred from the circumstances proved, but the guilt of a defendant must be so established as to exclude every other reasonable hypothesis of innocence. This does not mean that the trier of fact is required to search out a series of potential explanations compatible with innocence, and elevate them to the status of a reasonable doubt. People v. Bartell, 386 Ill 483, 489, 54 NE2d 700 (1944) ; People v. Huff, 29 Ill2d 315, 320, 194 NE2d 230 (1963); People v. Brown, 83 Ill App2d 411, 415-417, 228 NE2d 495 (1967).

In Huff, defendant was convicted of involuntary manslaughter of a two-year-old child after an indictment for murder, although there was no direct evidence of the actual act which caused the child’s death. There was testimony of neighbors that they heard sounds like a belt striking flesh and then a baby crying on numerous occasions preceding the death. Defendant admitted that he had beaten the child with a belt several times but had never struck her head. The child had numerous bruises over her body, including her head, and there was medical evidence that she died of brain damage. A physician testified that the brain damage could have been caused by striking the child on the head with a belt, but that a fall also could have caused the injury. He testified that it was impossible to fix the exact time or day when the fatal injury occurred.

Also in Bartell, there was no direct evidence of the actual act which caused the child’s death but a conviction of manslaughter after an indictment for murder was sustained, despite testimony of the defendant that he had been merely slapping the baby to break her of the habit of wetting. The court noted that there was no denying that there was a skull fracture or that the circumstances showed a story of brutality and unnatural treatment of the child which justified the jury in reaching its conclusion (page 489).

Recently this Court had occasion to deny a new trial to a defendant convicted of the crime of the murder of a two-year-old child, where newly discovered evidence was alleged. The new evidence concerned a change in the expert’s opinion as to the amount of force required to cause the injuries resulting in the death. We held that the evidence would not probably change the result on retrial in view of the circumstances which showed that the child was healthy immediately prior to his confinement in the bathroom with the defendant and that shortly thereafter he was found to be suffering from severe brain damage and other injuries. We held that in view of the express hostility of the defendant to this child the circumstantial evidence that death was caused by his criminal act was overwhelming. We believe that such conclusion is similarly evident here. People v. Burrington, 101 Ill App2d 230, 242 NE2d 433 (1968).

From this record the jury was justified in finding beyond a reasonable doubt that the cause of death was a blow or blows to the head received by the victim while in the exclusive custody of the defendant. It is clear that neither of the two major head injuries could have been caused by the acts of abuse which the defendant admitted he committed in Mrs. Jerry’s presence.

In the opinion of the pathologist it was unlikely that falls from a standing position could have caused either of the two major head injuries, and while the fall from the bed could have caused one of the injuries it could not have caused both. It was clear from the circumstances following the fall from the bed that that fall did not cause the fatal injury. Mrs. Jerry had examined the child’s head following that fall and noticed only a small red spot at the back of his head corresponding with one of the two minor areas of hemorrhage, but observed no other injury and no soft spots. If the fatal skull fracture had occurred at that time the testimony showed that her examination would have revealed it, as the soft, spongy area was caused by a loosened skull and would have become apparent immediately upon fracture.

It was further the testimony of the pathologist that it was improbable that the child could have maintained consciousness into the afternoon after sustaining the fatal injury at 9:00 a. m. in the morning, further excluding the bed fall as a cause. The evidence here relates a story of brutality and unnatural treatment of the child fully justifying the jury in believing that Michial was mortally injured by the defendant.

Defendant further argues that the circumstances are insufficient to prove that the defendant intended to kill the child or cause him great bodily harm. The intent is implied from the character of the act. People v. Davis, 35 Ill2d 55, 61, 219 NE2d 468 (1966). While the defendant suggests that the inference can only be made from the direct testimony as to the acts of the defendant, none of which would have been sufficient to cause the death, we do not find his position supported by the authorities. The manner of death and the means by which it was inflicted—including the implied intent—may be inferred from the circumstances proved. People v. Huff (supra, page 320); People v. Bartell (supra, page 489). The defendant cites the case of People v. Mosby, 25 Ill 2d 400, 185 NE2d 152 (1962) for the authority that essential elements of proof to sustain conviction cannot be inferred but must be established. We do not find that the case holds that essential allegations of indictments cannot be proved by circumstantial evidence. Rather it holds that the jury may not supply the essentials by making unreasonable inferences unsupported by the facts in the record.

It was reasonable for the jury to deduct from the nature of the injury, the medical testimony describing it, and the attendant circumstances of defendant’s state of mind and previous conduct toward the child, that the injuries resulted from an intentional act and not from accident.

Defendant complains of the giving of People’s Instruction No. 12:

“The intent with which an act is done may be inferred from the act itself and the surrounding circumstances, it being presumed that every person intends the natural and probable consequences of his actions.”

We find no error in the giving of this instruction. People v. Coolidge, 26 Ill2d 533, 537, 187 NE2d 694 (1963).

The defendant has also complained that the court erred in not interrupting the deliberation of the jury. The jury received the case at 3:45 p. m. on January 16th, 1968 and did not stop deliberation until 1:00 a. m. on January 17th. Defendant would ask us to infer that a verdict arrived at under these circumstances would be the result of fatigue and exhaustion, but we find nothing in the record to support this contention nor to show that defendant was prejudiced. The length of time a jury may be kept together for the purpose of deliberation is a matter peculiarly within the discretion of the trial judge. People v. Daily, 41 Ill2d 102, 242 NE2d 170, 173 (1968); DeGrandis v. Fay, 335 F2d 173 (1964). We find no abuse of discretion here.

We do not find that the evidence is so unreasonable, improbable or unsatisfactory as to justify a reasonable doubt of the defendant’s guilt and therefore will not disturb the finding of guilty below. People v. Crews, 38 Ill2d 331, 335, 231 NE2d 451 (1967).

The judgment of the Circuit Court is affirmed.

Affirmed.

MORAN, P. J. and DAVIS, J., concur.


author: JUSTICE ABRAHAMSON.

text:
    Martin F. Brown and Catherine Brown, Plaintiffs-Appellees, v. Farmers Automobile Insurance Association, an Illinois Corporation, Defendant-Appellant.
    Gen. No. 68-127.
    Second District.
    February 25, 1969.
    O’Brien, Burnell, Puckett and Barnett, and Peter K. Wilson, Jr., of Aurora, for appellant; Mackenzie, Yescelus, Leetz and Perry, of Wheaton, for appellees.
   Opinion by

JUSTICE ABRAHAMSON.

Not to be published in full.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Lee Wyckoff, Defendant-Appellant.
    Gen. No. 68-140.
    Second District.
    February 25, 1969.

      Rex Meilinger, of Aurora, for appellee.
    William R. Ketcham, State’s Attorney of Kane County, of Elgin, and W. Ben Morgan, Assistant State’s Attorney, for appellee.
   MR. JUSTICE SEIDENFELD

delivered the opinion of the court.

Defendant appeals from a judgment, entered upon his plea of guilty to the offense of Indecent Liberties with a Child, imposing a sentence of not less than 4 years nor more than 7 years in the penitentiary. A motion for probation was denied.

He urges as errors, that he was sentenced under an amendment to the Criminal Code passed subsequent to the act charged, and that the court abused its discretion in refusing to grant his application for probation.

At the time of the acceptance of the plea of guilty, the court ordered a presentence investigation by the probation officer and set a date for hearing on the application for probation. At that hearing the presentence investigation report was placed in the record. It appeared from the report that the defendant, at the time of the offense, was nineteen years of age, and the victim was either fourteen or just about fourteen and had willingly cooperated in the illicit acts; that according to the defendant’s statement there were only two acts more than six months apart. It further appeared that defendant had eleventh grade education; that he had no prior criminal record other than three minor traffic offenses and had been gainfully employed for several years as a press operator with a good work record. The report refers to a remark allegedly made to an Aurora policeman that defendant would rather be sent to jail now because he would refuse to be drafted and would have to go to jail anyway; that he would be willing to go to jail for five years rather than go in the army. The report also refers to a finding on an investigation that the defendant had been spending every Friday night with the minor girl until the time that he found out that she was pregnant. The report concluded that the girl was now seven months pregnant. The probation officer’s report recommended that probation be denied.

At the hearing the defendant testified that he thought the victim was older and did not realize that he was committing a criminal offense. He referred to a conversation between the stepfather of the victim and himself, when the stepfather had told him that the girl was pregnant and that she had said she was having a baby by the defendant. He testified that he had told the stepfather that it wasn’t possible and he declined to recognize the child as being his. The defendant testified that it was a couple of weeks after this conversation with the stepfather that the charges were filed against him because he would not pay the doctor’s bill, but that he stated he would make the payments until there were arrangements made to take a blood test. He indicated that there were other people having intercourse with the girl, but that he had no proof of this.

When his attorney asked him about the reference in the report to the military service, he answered, “Well, I don’t see where you get anything out of killing.” Thereafter, the court inquired of the defendant,

“And do I understand you correctly you stated that you preferred not to go in the service of our Country because you didn’t think you’d get anything out of it?”
The Defendant: “No, I said I didn’t see where you get anything out of killing. That is what I said.”

Before denying probation, the court said:

“I am very much impressed by the fact that you attempt to show other people may have had intercourse with this young girl. I don’t take that as any excuse for your conduct, Mr. Wyckoff. Your application for probation is denied.”

Thereafter, the court gave the defendant opportunity to add any facts by way of aggravation or mitigation and none were added to the record. The court thereupon sentenced the defendant.

The defendant contends that the court acted in an arbitrary manner as the result of emotional bias and prejudice within the meaning of the rule laid down in People v. McAndrew, 96 Ill App2d 441, 239 NE2d 314 (1968). We do not agree. Neither the court’s interest in the attitude of the defendant towards the laws requiring military service, nor to the defendant’s lack of appreciation for his personal responsibility undiminished by what he might have thought others had done, indicated any emotional bias on the part of the judge. Rather, each is a legitimate inquiry into the question of whether the rehabilitation of the defendant requires that he receive the penalty provided and is well within the discretion of the court set forth in section 117-1 of the Code of Criminal Procedure of 1963 (Ill Rev Stats 1967, c 38, par 117-1).

However, we believe that the defendant is correct in his claim that the court sentenced him under a misapprehension of the statute in effect concerning his offense. The offense charged in the indictment occurred in July of 1967. It was charged as a violation of section 11-4 of the Criminal Code of 1961. The penalty for this offense under the 1961 act was an indeterminate sentence of 1 to 20 years. The penalty provision of the statute was amended on September 1, 1967, to provide a minimum penalty of 4 years with a maximum of 20 years.

When the defendant pleaded not guilty upon his arraignment he was advised by his attorney in the presence of the court that the offense was punishable by a term of from 4 to 20 years. Subsequently when the defendant withdrew his plea of not guilty and entered his plea of guilty he was again advised by his counsel in the presence of the court that the punishment was from 4 to 20 years. At the time of the hearing on his application for probation the same representation was made before the court, both by the attorney for the defendant and by the State’s Attorney who was asked by the court as to the maximum and minimum penalties immediately prior to the sentencing.

It is clear that punishment for the offense cannot be increased by an amendatory act taking effect after the offense has been committed, within the constitutional prohibition against ex post facto laws. People v. Ostrowski, 293 Ill 91, 93, 127 NE 379 (1920). The state agrees with defendant’s contention that the older statute applies to this case and points out further that under Ill Rev Stats 1965, c 131, § 4, any penalty accruing under a former law before an amended statute takes effect shall be governed by the former law. The state, however, takes the position that the term of 4 to 7 years is compatible either with the law as it was at the time the offense was committed or the law which became effective in 1967, and that within the rule that a presumption of regularity attends all court proceedings, it is to be presumed that the court sentenced the defendant with the proper statute in view. However, we cannot indulge in that presumption on the state of this record. While we would normally prefer to remand the cause so that the trial judge might consider the sentencing under the proper statute, we believe that in this particular case it is so clear from the record that the trial court had in mind an indeterminate term beginning with the minimum and extending the maximum to 3 years, that we will exercise our authority here in accordance with Supreme Court Rule 615 (b) (4), (Ill Rev Stats 1967, c 110A, § 615(b) (4)).

Therefore, the defendant’s sentence is reduced to a minimum of 1 year and a maximum of 3 years in the Illinois State Penitentiary. As modified, the judgment of the court below is affirmed.

Judgment modified and affirmed.

MORAN, P. J. and DAVIS, J., concur.


author: MR. JUSTICE McNAMARA

text:
    Patricia A. Donovan, Plaintiff-Appellant, v. Henry Raschke, et al., Defendants-Appellees.
    Gen. No. M-51,870.
    First District, Second Division.
    February 25, 1969.

      Levin & Upton, of Chicago (Samuel Levin, Roland C. Upton, and William T. Cormack, of counsel), for appellant.
    Osterkamp, Jackson & Shinitzky, and Jerome H. Torshen, of Chicago (Jerome H. Torshen, of counsel), for appellees.
   MR. JUSTICE McNAMARA

delivered the opinion of the court.

Plaintiff, Patricia A. Donovan, brought suit against Richard Matuszczak and Emilia Matuszczak, owners of a certain building, and against Henry Raschke and Donald Tilseth, masonry contractors, to recover damages for injuries sustained by her as a result of the negligence of the defendants in causing certain materials to be placed upon the public sidewalk in front of the building while remodeling work was being done. Defendants Raschke and Tilseth were partners in a business known as the Lanite Company. They shall be referred to in this opinion as Lanite, and the Matuszczaks shall be referred to as owners.

The owners filed a counterclaim against Lanite claiming indemnity and alleging active negligence. The cause proceeded to trial on the complaint and counterclaim. The trial court directed a verdict in favor of the owners, and the jury returned a verdict in favor of Lanite. Plaintiff appeals from judgments entered on those verdicts and from an order denying her motion for a new trial.

Plaintiff contends that the trial court erred in directing a verdict in favor of the owners, that as to Lanite the court erred in refusing certain instructions tendered by the plaintiff, and by improperly restricting counsel for plaintiff’s closing argument.

As to the occurrence, on December 2, 1958, the plaintiff and her husband, John L. Donovan, were walking on the sidewalk coming to 1143 Milwaukee Avenue, Chicago, where the remodeling was being done. There was a pipe scaffold erected in front of the building which extended across the sidewalk almost to the curb and for about 17 feet along the front of the building, which had a frontage of about 23 feet. The building itself was two stories high with a store on the first floor and an apartment on the second floor. The scaffolding extended to the roof. Various construction materials and tools were on the sidewalk, which was 8 to 10 feet wide. In addition to the scaffolding, there were bags of mortar or cement, a mortar box, a wheelbarrow, and a roll of wire mesh about 3 feet high standing on end.

When they approached the site, plaintiff and her husband who were walking side by side had to proceed in single file through a narrow space on the sidewalk. They were unable to walk in the street because a truck was parked at the curb. Plaintiff walked several steps behind her husband, and as she proceeded through the area, she tripped over the roll of wire mesh which fell in front of her as she passed by, and she was injured. Henry Rasehke, one of the owners of Lanite, testified that metal wire lath was applied prior to application of the synthetic stone, and that this metal lath resembled wire mesh. There were workmen on the scaffolding at the time of the accident.

As to the parties involved, prior to the occurrence, the owners had contracted with Peterson Store Fronts for the remodeling of the entire front of the building. A synthetic stone veneer was to be applied to the frame exterior. Peterson issued subcontracts for various phases of the work, and one of the subcontractors was Harry Dufford doing business as Artstone Construction Company. Dufford in turn contracted with Lanite to manufacture and apply the stone. Lanite hired Eugene Tilseth to apply the stone. Eugene Tilseth, not a party to this suit, was a brother of defendant Donald Tilseth, one of the owners of Lanite. Peterson and Dufford had been dismissed from the suit and counterclaim prior to trial, and are not involved in this appeal.

Plaintiff first contends that the trial court erred in directing a verdict in favor of the owners at the close of plaintiff’s case.

An owner of property which abuts a public sidewalk owes a duty to keep the sidewalk free from any condition which may create a danger or a hazard to persons lawfully upon the street. Girdzus v. Van Etten, 211 Ill App 524 (1918). And the duty thus imposed on the owner is nondelegable. Boyd v. Chicago and N. W. Ry. Co., 217 Ill 332, 75 NE 496 (1905). In Andronick v. Daniszewski, 268 Ill App 543 (1932), plaintiff was injured when struck by a chisel dropped by a workman on a scaffold over the sidewalk. In affirming a judgment for plaintiff, the court stated at page 555:

“The work required to be done was dangerous to persons using the sidewalk on the public street, and defendants, we hold, did not perform their affirmative duty to take precautions against possible and probable injuries by erecting a barricade or by other appropriate means. Defendants were not insurers, but they were under obligation to see that reasonable care was exercised in making the improvement. They could not delegate that duty.”

However the owners contend that the owner of a building is not responsible to third persons for any act of negligence by an independent contractor or his servants unless the work is inherently dangerous, arguing that the principle announced in the Andronick case is limited to instances where the work contracted to be done was inherently dangerous.

In resolving this issue, we do not believe that it is necessary to attempt to define the imprecise expression “inherent danger.” Rather we find that the proper test to be applied concerning the liability of an owner for the act of negligence of an independent contractor is whether there was sufficient evidence presented so that the trier of fact could determine that the work to be done was a probable and foreseeable source of injury to a party such as plaintiff unless proper precautions were taken. See Johnson v. Central Tile & Terrazzo Co., 59 Ill App2d 262, 207 NE2d 160 (1965).

In Donohue v. George W. Stiles Const. Co., 214 Ill App 82 (1919), in discussing the liability of an employer for the negligence of an independent contractor, the court quoted with approval from Henry Pierson and Sons v. Gohr, 126 Md 385, 400, 94 A 1021, as follows at page 91:

“An employer will be liable where work is being done by an independent contractor if the injury ‘be such as might have been anticipated by him, as a probable consequence of the work let out to the contractor, and he took no precaution to prevent it/ and ‘whether the injury might reasonably have been anticipated as a probable consequence of the work contracted to be done was one of fact for the jury.’ ”

In the instant case, a pipe scaffold extending two stories high was erected along the front of a building for approximately 17 feet. The scaffolding extended across the sidewalk almost to the curb. The sidewalk was cluttered with construction materials and tools. In addition to the scaffold itself there were bags of mortar, a mortar box, a wheelbarrow and the wire mesh in question, all strewn across the sidewalk. Because of a parked vehicle, plaintiff was unable to walk on the street. Plaintiff was then injured when the roll of wire mesh fell in front of her. Under these facts and circumstances, the evidence presented was ample to warrant the submission of the owners’ liability to the jury for determination, and the court erred in directing a verdict in favor of the defendant owners.

As to Lanite, plaintiff first argues that the court’s refusal of two instructions tendered by plaintiff resulted in prejudicial error. Plaintiff tendered an instruction which would have instructed the jury that as a matter of law Eugene Tilseth was the agent of Lanite at the time of the occurrence. After the court refused that instruction, plaintiff tendered the following instruction:

“The defendants, Henry Raschke and Donald Tilseth, are sued as the principals and the plaintiff claims that Eugene Tilseth, was acting as their agent at the time of the occurrence. The defendants, Henry Raschke and Donald Tilseth deny that Eugene Tilseth was acting as their agent, at the time of the occurrence.
“If you find that Eugene Tilseth was the agent of the defendants, Henry Raschke and Donald Tilseth, at the time of the occurrence, then any act or omission of Eugene Tilseth, at that time, was in law the act or omission of the defendants.
“If you find that Eugene Tilseth was not acting as the agent of the defendants at the time of the occurrence, then the defendants are not liable.”

The court also refused this instruction, stating that there was no evidence whatsoever to indicate that Eugene Tilseth was an agent of Lanite.

Determination of the issue of whether the relationship of principal and agent, or owner and independent contractor exists, unless the relationship is so clear as to be undisputed, is a question of fact to be decided by the jury. Thiel v. Material Service Corp., 364 Ill 539, 5 NE2d 88 (1936); Hulke v. International Mfg. Co., 14 Ill App2d 5, 142 NE2d 717 (1957). And in Tansey v. Robinson, 24 Ill App2d 227, 164 NE2d 272 (1960), this court found that what relationship existed depended upon such factors as the hiring, the right to discharge, the direction given to the employee, and the character of the supervision of the work.

In the instant case, Richard Matuszczak, one of the building owners, testified that he was introduced to Henry Raschke, one of the proprietors of Lanite, at the job site and that they had approximately five conversations in which he urged Raschke that the work be rushed and finished. Raschke testified that he was never present at the job, but stated that he had phone conversations with Matuszczak in which the latter requested that the work be rushed. While Raschke also testified that Eugene Tilseth was an independent contractor and that Lanite had no control over the work, he admitted that Lanite contracted to furnish the stone and hired Eugene Tilseth to apply the stone.

The trial court properly refused to instruct the jury that as a matter of law Eugene Tilseth was an agent of Lanite. However we find that there was sufficient evidence in the record so that whether a principal-agency relationship existed between Lanite and Eugene Tilseth became a question of fact for the jury. The testimony of both Matuszczak and Raschke clearly indicated that the building owner looked to one of the proprietors of Lanite as being in charge of the remodeling work. Moreover Raschke testified specifically that Lanite hired Eugene Tilseth to apply the stone (emphasis supplied). As we have already noted, Illinois courts have held that supervision and control of the work involved and the matter of hiring are important factors in determining the existence of a principal-agent relationship. In the case at bar, that determination should have been made by the trier of fact.

Lanite also argues that there was no evidence presented that either Lanite or Eugene Tilseth caused the plaintiff’s injury, because there was no direct evidence linking them to the roll of wire mesh. We find that the trial court correctly submitted that issue to the jury. Direct evidence is not required if there is a reasonable basis from which a jury could have drawn the inference that the wire mesh had been placed at the scene by Lanite or Eugene Tilseth. See Lindroth v. Walgreen Co., 407 Ill 121, 94 NE2d 847 (1950). The roll of wire mesh was standing on end among the other materials and implements at the site of the remodeling, where workmen were engaged at the time of the accident. Metal lath was used in the application of the synthetic stone, and this lath resembled wire mesh. There was also testimony that Lanite had hired Eugene Tilseth to apply this stone. The record supported the submission of this issue to the jury.

Because of our view of the proceedings, we deem it unnecessary to consider plaintiff’s remaining assignment of error.

Accordingly, the judgments of the Circuit Court are reversed, and the cause remanded for a new trial on the complaint and counterclaim.

Judgments reversed and cause remanded.

LYONS, P. J. and BURKE, J., concur.


author: PRESIDING JUSTICE DRUCKER.

text:
    Peter Congiardo, Plaintiff-Appellee, v. Tony Bordenaro, Sr., and Tony Bordenaro, Jr., Defendants-Appellants.
    Gen. No. 51,945.
    First District, Fourth Division.
    February 26, 1969.

      James A. Thompson, of Chicago, for appellants; Arnold S. Root, of Chicago (Edward M. Platt, of counsel), for appellee.
   Opinion by

PRESIDING JUSTICE DRUCKER.

Not to be published in full.


author: JUSTICE SCHWARTZ.

text:
    The Walter M. Carqueville Company, an Illinois Corporation, Plaintiff-Appellee, v. Albert G. Gladstone, Hen ’N Honey Corporation, an Illinois Corporation, and Graves S. Urquhart, Defendants, and Albright Sales Corporation, an Illinois Corporation, and Jere Albright, Defendants-Appellants.
    Gen. No. 52,572.
    First District, Third Division.
    February 27, 1969.
    Henehan, Donovan & Isaacson, of Chicago (Malcolm W. Burnett, Jr., of counsel), for appellants; Neff and Trottner, of Chicago (Mary Ellen Trottner, of counsel), for appellee.
   Opinion by

JUSTICE SCHWARTZ.

Not to be published in full.


author: STOUDER, J.

text:
    Herman E. Horkstrom, et al., Plaintiffs-Appellants, v. Stonefort Coal Mining Company, Inc., a Corporation, Thomas Kennedy, as President of the International Union, United Mine Workers of America, John Owens, as Secretary-Treasurer of the International Union, United Mine Workers of America, Hugh White, as President of District 12, United Mine Workers of America, Fred S. Wilkey, as Secretary of the Illinois Coal Operators’ Association, and Martha Terleke, as Acting Secretary of the Illinois Coal Operators Association, and Paul Wagher, as President or Former President of Local 7383, International Union, United Mine Workers of America, Defendants-Appellees.
    Gen. No. 68-1.
    Third District.
    February 26, 1969.
    Kevin D. Kelly, of LaSalle, and Sidney Karasik, of Chicago, for appellants.
    William J. Voelker, Jr., of Peoria, Edmund Burke, of Springfield, Willard P. Owens, of Washington, D. C., and Stuart, Neagle & West, of Galesburg, for appellees.
   STOUDER, J.

Plaintiffs (twenty in number) as former employees of Stonefort Coal Mining Company, one of the defendants, brought this action in the Circuit Court of Knox County for a declaration of rights under certain union-management contracts. In the first count of their amended complaint, Stonefort Coal Mining Company, Inc. and Illinois Coal Operators’ Association are named as defendants. In the second count, officials of the local district and International Mine Workers Union are named defendants. Each of the defendants moved to dismiss the complaint and such motions were granted by the trial court. The plaintiffs elected to stand on their amended complaint and have appealed from the order of dismissal.

From the complaint, which is quite lengthy in detail, it appears that prior to 1960 Plaintiffs had been employed by Stonefort Coal Mining Company at its mine located in Knox County, Illinois, known as the Little John Mine. In 1960, Stonefort discontinued the operation of the Little John Mine and moved its operation to the Allendale Mine. At the time of transfer of operation, a reduction in work force also took place as a result of which Stonefort discharged plaintiffs and did not transfer them to the new mine. At the time of their discharge and prior thereto, plaintiffs were members of Local 7383, District 12, United Mine Workers of America (referred to as the International Union). The complaint referred to and incorporated by reference, a national union-management contract and a local union-management contract. According to plaintiffs the terms of such contracts were violated because the reduction in working force was on the basis of job classification seniority rather than mine wide seniority. As indicated earlier, plaintiffs have appealed from the order of the trial court dismissing both counts of their amended complaint.

Although the underlying basis of plaintiffs’ claims is that their discharge was wrongful under the provisions of the National and local union-management contracts, the principal issues on this appeal and in the trial court involve the effect of the grievance procedures detailed in the contracts. The contracts provided that all disputes thereunder are to be resolved and settled by the parties and in implementation thereof, a five-step grievance procedure is set forth in great detail. Since the details of the grievance procedure are not involved in this case a general outline of the procedure should suffice. The five-step procedure contemplates that if the dispute is not settled at some prior stage settlement procedures will then advance to the next stage. Step one provides for direct settlement between employees and employer, steps two, three and four involve settlement by joint committees representing employer and local union, employer and district, employer and International respectively, step five provides for binding arbitration.

The dispute was not resolved in accord with the grievance procedures specified and the principal issue on this appeal is plaintiffs’ contention that the trial court erred in holding that the allegations of the complaint are insufficient to excuse compliance with the grievance procedure. The first count of the amended complaint alleged plaintiffs’ wrongful discharge by their employer Stone-fort, asserting first that Stonefort repudiated the grievance procedure and second that plaintiffs were prevented from settling their grievance under the grievance procedure by the wrongful conduct of the union officials. Count two of the amended complaint against the union officials expands the allegation of wrongful conduct of such union officials and is based on a violation of the statutory duty of fair representation owed by the union to its members.

Paragraphs 17 and 18 of the first count of the amended complaint allege in substance that the plaintiffs did present the matter of their discharge to their employer (step one of the grievance procedure) and that their employer turned down their complaint indicating that the issue was not negotiable. However, it is then alleged in the first count of the complaint that no further steps in the grievance procedure were undertaken because the local union representatives charged with prosecuting step two of the grievance procedure on behalf of plaintiffs wrongfully refused so to do. Thus it appears from the allegations of count one that the employer did not refuse to participate in step two or subsequent steps of the grievance procedure because in fact it was never requested so to do. Under these circumstances we do not believe that the employer can be said to have repudiated the grievance procedure and plaintiffs’ claim if any, must be based primarily on its allegations concerning the wrongful conduct of the union officials in failing to prosecute plaintiffs’ grievance.

In Webster v. Midland Elec. Coal Corp., 43 Ill App2d 359, 193 NE2d 212, cert denied 377 US 964, which is referred to by the defendants as a companion case because it involved essentially the same issues but a different coal company, the Court rejected arguments similar to those advanced by plaintiffs in the instant case. Plaintiffs insist, the defendants arguing to the contrary, that the conclusions of the court in Webster have been modified by a subsequent decision of the United States Supreme Court in Vaca v. Sipes, 386 US 171, 12 L Ed2d 842, 87 S Ct 903. To the extent that the Vaca case represents a recent extended discussion of the duties owed by a union to its members we believe that a summary of the opinion is appropriate.

In the Vaca case the plaintiff was a member of the meat packers’ union. He had been employed by Swift & Company but had been off work because of medical reasons (high blood pressure). Plaintiff attempted to resume his employment after his own treating physician indicated he was able to do so. However the company’s physicians concluded otherwise and as a consequence the plaintiff was discharged. Plaintiff then resorted to the grievance procedure (a five-step procedure similar to that in the instant ease) and such procedure advanced to the fourth step thereof, the union representatives aiding plaintiff in the presentation of his grievance. During the fourth step of the grievance procedure, the union representatives after seeking supporting medical evidence, advised plaintiff that he should accept the company’s offer of rehabilitation, which he declined. The union representatives thereafter declined either to complete the fourth step of the grievance procedure or to proceed to binding arbitration. Thereafter, plaintiff brought separate actions in a State court of Missouri against the union and the company. Other than filing the action however, no further proceedings were taken against the company and the court had before it only the action against the union. Plaintiff’s complaint alleged that the union had “arbitrarily, capriciously and without just or reasonable reason or cause” refused to take his grievance with Swift to arbitration under the fifth step of the bargaining agreement’s grievance procedures. A jury trial resulted in a verdict against the union. After review by the courts of review of the State of Missouri the United States Supreme Court reversed the judgment of the trial court.

The holding of the United States Supreme Court in the Yaca case may be summarized as follows. It affirms the principle that a union owes a statutory duty of fair representation toward its members, such duty being derived from the union’s power and authority to act as a sole bargaining agent for the bargaining unit. The violation of a union’s duty of fair representation may be prosecuted as an unfair labor practice under 29 USC, § 158(b), but such remedy is not exclusive and does not preempt the right of an injured employee to seek redress in the courts. The violation of a union’s duty of fair representation is a matter of federal substantive law and occurs when the union acts arbitrarily or is hostile with respect to alleged grievances of its members or in other words the union acts in bad faith. The facts in the Vaca case were insufficient to support the conclusion that the union acted arbitrarily, with hostility or in bad faith and in this respect the fact that the plaintiff may have been wrongfully discharged does not negate such conclusion. Where there has been a violation of the duty of fair representation, the court, by way of dicta, the employer not being a party to the suit, held that the employer could not urge the failure of the plaintiff to proceed with the grievance procedure as a defense to an action for alleged violation of contract.

In applying the principles of the Vaca decision to the instant case, our principal inquiry is whether there are allegations in the complaint from which it can be fairly inferred that the union or its representatives acted arbitrarily, in bad faith or with hostility toward plaintiffs. It is our conclusion that the trial court decided properly in concluding that no such facts were alleged. In their complaint, plaintiffs, in substance, allege they had several meetings both with local union representatives and the district representative seeking to have their grievance prosecuted by local union representatives under step two of the grievance procedure. The union representatives refused to do so and advised plaintiffs they had no case. Such allegations are not susceptible of any inference that the union representatives were hostile to plaintiffs, that such representatives failed to consider the merits of plaintiffs’ grievance or that such representatives acted in bad faith. Nor can the action of the union representatives be regarded as arbitrary merely because their action was favorable to one group of members of the union whose interests were antagonistic to those of plaintiffs.

In Humphrey v. Moore, 375 US 335, 11 L Ed2d 370, 84 S Ct 363, the Court approved the settlement of a grievance involving the merger dovetailing of the seniority list which resulted when one employer continued a business activity formerly carried out by two employers employing members of the same union. The Court rejected the contention that the union representatives acted dishonestly, arbitrarily or capriciously because such representatives acted favorably on behalf of one group of members of the union who had opposing or antagonistic interest to other members of the union. See also Ford Motor Co. v. Huffman, 345 US 330, 97 L Ed 1048, 73 S Ct 681. Whenever a union is faced with the prospect of reduction in work force, the unavoidable result is that whatever action the union takes will adversely affect one group of its members. This is true whether the union decides to acquiesce in or oppose the action of the employer. Where the union is required to make such decision we do not believe its conduct may be regarded as arbitrary in the sense that it determined upon a course of conduct in bad faith. To hold otherwise would subject the union or its representatives to a charge of improper conduct in every case where a reduction in work force took place and would in effect deprive the union of any significant role in the settlement of such grievance.

For the foregoing reasons the judgments of the Circuit Court of Knox County are affirmed.

Judgments affirmed.

ALLOY, P. J. and SCHEINEMAN, J., concur.