text:
    Harrison F. Blades, Inc., a Corporation, Plaintiff-Appellee, v. Jarman Memorial Hospital Building Fund, Inc., a General Not-for-Profit Corporation, E. H. Marhoefer, Jr. Co., a Corporation, Carson-Payson Co., Illinois Building Foundation Construction Corporation and R. H. Bishop Company, Defendants, Jarman Memorial Hospital Building Fund, Inc., a General Not-for-Profit Corporation, Carson-Payson Company, Defendants-Appellees, E. H. Marhoefer, Jr. Co., a Corporation, Defendant-Appellant.
    Gen. No. 11,008.
    Fourth District.
    June 3, 1969.

      Massey, Anderson, Gibson & Pearman, of Paris (Ralph S. Pearman, of counsel); Lord, Bissell & Brook, of Chicago (Gordon R. Close, Thomas W. Dempsey and Paul W. Engstrom, of counsel), for appellant.
    Lemna & Lee, of Tuscola and Acton, Baldwin, Book-waiter, & Meyer, of Danville (Frank J. Meyer and Harvey H. Acton, of counsel); Samuels, Miller, Schroeder, Jackson & Sly, of Decatur (Carl R. Miller, Jerald E. Jackson and Thomas S. Sly, of counsel), for appellee.
   SMITH, J.

This appeal involves disputes arising between an owner, the general contractor and two subcontractors in a building construction project in Tuscola, Illinois. For convenience sake, the owner will be referred to as Jarman, the general contractor as Marhoefer, one subcontractor as Blades, and the second contractor as Carson-Payson. Taking the position that the contracts called for the arbitration of the various disputes, Marhoefer made a demand for arbitration proceedings before the American Arbitration Association. The owner and the two subcontractors requested that the arbitration hearings be held in Tuscola and this request was denied. Blades then filed this suit for an accounting between all the parties. The owner filed an application with the circuit court in this suit to stay arbitration. The general contractor filed a motion to enjoin the judicial proceedings and to direct the parties to proceed with the pending arbitration proceedings. The circuit court granted the application to stay the arbitration proceedings and denied the motion to direct the parties to proceed with arbitration. Marhoefer appeals from these orders.

After the trial of this case in the circuit court and after the briefs were filed in this court, our Supreme Court decided the case of Flood v. Country Mut. Ins. Co., 41 Ill2d 91, 242 NE2d 149. That decision makes it clear that the Illinois Uniform Arbitration Act, Ill Rev Stats 1967, c 10, § 101 et seq., does not control the issues which are subject to arbitration, but such issues have their birth in and are delineated by the arbitration contract between the parties. At page 94, the court stated:

“Despite the salutory purpose of our Arbitration Act, parties are only bound to arbitrate those issues which by clear language they have agreed to arbitrate; arbitration agreements will not be extended by construction or implication.”

This language is simple, clear and concise. Whether or not and what they arbitrate must be stated in the contract between the parties in crystal clear language unextended and unenlarged either by construction or by implication. In Flood, our Supreme Court noted that the policy endorsement in question did not cover all disputes between the insured and the insurer and that there was no language in the endorsement which could be read as an agreement to submit to arbitration the issue of coverage. In Liberty Mut. Fire Ins. Co. v. Loring, 91 Ill App2d 372, 235 NE2d 418, the policy in litigation defined a “hit- and-run” vehicle as a vehicle which causes bodily injury to an insured arising out of physical contact of such vehicle with the insured or with an automobile which the insured is occupying at the time of the accident. The Appellate Court held that the trial court should have heard evidence as to whether or not there was physical contact between the defendant’s vehicle and that of the alleged hit-and-run motorist and whether there was resultant coverage of the defendant’s injuries under the policy provisions. We think it is clear from Flood and Liberty Mutual that in Illinois for an issue to be the subject of arbitration, it must be included in the contract in clear and unequivocal language.

Marhoefer cites United Steelworkers of America v. Warrior & Gulf Nav. Co., 363 US 574, 4 L Ed2d 1409, 80 S Ct 1347, as authority for the proposition that all doubts as to the arbitrability of an issue should be determined by the arbitrators and not by the courts, and that the courts may deny access to the arbitrator’s expertise only where the issue in question has been expressly excluded as an arbitrable issue in the contract. Thus, he says, since there is no provision in this contract expressly excluding arbitration of damages caused by the owner’s changes and delays, that issue is subject to arbitration. The difficulty with this position is that the case cited is not blanket authority for the proposition for which it is cited and is expressly limited, as we read, to labor disputes. Its dichotomy is predicated upon the proposition that arbitration of labor disputes under collective bargaining agreements is part and parcel of the collective bargaining process itself. Indeed the power of a court to vacate an award under Ill Rev Stats 1967, c 10, ¶112, is delimited by § 12(5) (c), where the arbitration agreement is a part of or pursuant to a collective bargaining agreement. The reasoning in Warrior is neither persuasive nor controlling in the area of arbitration which faces us and we do not regard it as an “open sesame” to uninhibited arbitration where collective bargaining is absent.

The demand for arbitration against Jarman sought $200,000 damages on account of changes and delays perpetrated by Jarman. The demand served on the subcontractors was to arbitrate the amount of damages to the contractor as a result of the delays occasioned by the respective subcontractors. Marhoefer argues that these matters are subject to arbitration by virtue of ¶ 7(a) of the General Conditions which were a part of the specifications and which reads “7. Arbitration—(a) It is mutually agreed that all disputes arising in connection with this contract shall be submitted to arbitration in accordance with the provisions of the current Standard Form of Arbitration Procedure of the American Institute of Architects. . . .” In neither Flood nor Liberty was there a general provision similar to the one in the case at bar. In Flood and Liberty, the court had no difficulty in determining that the scope of the arbitration agreement did not include the precise issue submitted and that an agreement to arbitrate some disputes cannot be extended to include an agreement to arbitrate all disputes.

It seems to have been the intention of the committee who wrote the Uniform Arbitration Act that the preliminary hearings to compel or to stay arbitration were restricted to a single question and that was “Is there an agreement to arbitrate?” Pirsig, Some Comments on Arbitration Legislation and the Uniform Act, 10 Vanderbilt L Rev 685, 694 (1957). Who answers this question— the court or the arbitrators ?

Marhoefer cites School Dist. No. 46 v. Del Bianco, 68 Ill App2d 145, 215 NE2d 25, and Layne-Minnesota Co. v. Regents of University of Minnesota, 266 Minn 284, 128 NE2d 371, for the proposition that where the scope of the arbitration agreement is reasonably debatable, the issue of arbitrability should be initially determined by the arbitrators. The Minnesota court held that under their statutes a subsequent court review fully protected the parties and in Del Bianco, it was stated that the parties were adequately protected by § 12 of our statute authorizing the court to vacate an award where the arbitrators exceed their powers or where there is no arbitration agreement. Ill Rev Stats 1967, c 10, ¶ 112, § 12. Marhoefer further contends that the determination of this issue by the arbitrators is not a mere matter of procedural formality. He asserts that the decision of the arbitrators on such questions very frequently can and should be different than that of the court of law, and this is because arbitrators are not confined to strict legal principles, but can decide questions according to their own concepts of what is just and right. Cited in support of this last proposition is Rosa v. Transport Operators Co., (NJ), 133 A2d 24, 27 (1957), and Mahaffy v. Gray, 242 Ore 522, 410 P2d 822, 823, (1966). Neither free-wheeling policy appeals to us nor do we think either policy is within the contemplation of the Uniform Arbitration Act. The issue of whether or not there is any jurisdiction to arbitrate or the limits of that jurisdiction should be determined at the earliest possible moment and should be controlled by judicial guidelines. To be realistically effective, §2(a) and §2(b) of the Uniform Arbitration Act, Ill Rev Stats 1967, c 10, ¶ 102, § 2, must apply not only to the existence of an agreement but also to the scope of that agreement. We read Flood and Liberty Mutual basically to so hold. In Del Bianco, which involved a suit by owner against an architect for negligence in the performance of his duties under the contract, the parties contracted to arbitrate “all questions in dispute under this agreement.” The court there properly held that the dispute went to the very heart of the performance of the contract and was subject to arbitration—and rightly so. The dispute involved the performance by the architect of the very duties imposed upon him by the contract. It seems abundantly clear that the parties had by their contract agreed to arbitrate such a dispute.

In the case at bar, the agreement in its precise language says to arbitrate “all disputes arising in connection with this contract.” The plaintiff then seeks to arbitrate an equitable adjustment of the contract consideration to reflect additional costs due to changes and delays perpetrated by the owner and the damage sought is $200,000. The issue sought to be arbitrated is “the extent of the owner’s responsibility for the losses sustained by the undersigned.” Jarman asserts and we think with some reason that this precise issue is entirely beyond the pale of the contract documents. Paragraph 31(c) of the General Conditions provides “That the right of the contractor to proceed shall not be terminated or the Contractor charged with liquidated damages because of any delays in the completion of the work due to . . . acts of the Owner. . . .” It is one thing to excuse the contractor from liquidated damages because of delays due to acts of the owner—it is quite another thing to provide for liquidated damages to the contractor for delays due to acts of the owner. The former as noted was provided for in the contract. There is nothing that we have been able to find nor pointed out to us in the contract documents which requires Jarman to pay the contractor any damages for losses occasioned by delays or the changes of the owner. It is somewhat difficult for us to find a dispute “in connection with this contract” which involves an issue that is not even mentioned in the contract. We have some difficulty in finding an agreement to arbitrate a subject matter that is not within the contract terms.

In Exercycle Corp. v. Maratta, 9 NY2d 329, 174 NE2d 463, the language of the contract was “ ‘any dispute arising out of or in connection with this agreement shall be settled by arbitration. . . .’ ” It will be noted that this language is almost precisely what we here construe and at first blush it would seem to be that it is all inclusive language. After announcing the proposition that parties to a contract may agree, if they will, that any and all controversies growing out of it may be submitted to arbitration and that such agreements will be enforced, then the court notes five exceptions to the rule and thus effectively closes the gate on the all inclusive nature of the language. An arbitration conducted under a contract which is invalid, unenforceable, irrevocable or which is competely silent on the question of arbitration is a nullity, the tribunal conducting the arbitration self-constituted, its decisions powerless and an award an act of usurpation. Finsilver, Still & Moss v. Goldberg, Maas & Co., 253 NY 382, 171 NE 579. The legal existence of the arbitration tribunal and the issue it is to decide depends on the contract. When the contract is silent on the issues sought to be arbitrated, there is no contract and it does not lie within the province of this or any other court to make that contract or to extend that contract by implication or by construction. And as we read Flood, it so holds. In the case at bar, it seems clear that the provision in ¶ 7 of the General Conditions for arbitration is limited to matters contained in ¶ 5 relating to the architects’ supervision in connection with the quality of the work, its acceptability and the meaning of the specifications. In addition a specific provision takes care of contractors’ expense for alterations but nowhere is damages for delay occasioned by the owner mentioned. There is “no coverage” in the contract for such an eventuality.

So far as Blades and Carson-Payson are concerned, the disposition thus made of the question of arbitration disposes of the issues raised by them. If there was no agreement to arbitrate the issue sought to be submitted in the General Conditions, there can be no arbitration by the incorporation by reference of such General Conditions in their contract. We therefore deem it unnecessary to discuss any question of waiver, any question of priority of liens or any question of performance of conditions precedent. The trial court correctly stayed arbitration for the very cogent reason that the subject matter proposed to be arbitrated was not an issue encompassed within the contract of the parties. Accordingly, the judgment of the trial court should be and it is hereby affirmed.

Affirmed.

TRAPP, P. J. and CRAVEN, J., concur.


source: Caselaw Access Project

author: SMITH, J.

license: Public Domain

text:
    Clair Ingalsbe, Executor of the Estate of Floyd W. Ward, a/k/a Floyd W. Allen, Deceased, Plaintiff-Appellee, v. Lillie A. Gouch, et al., Defendants, Lillie A. Gouch, Lloyd A. Allen, Lorraine B. Basham, Georgie Searight, Georgie Searight as Guardian of Lowell Searight, et al., Defendants-Appellants.
    Gen. No. 10,961.
    Fourth District.
    June 10, 1969.
    John T. Allen, of Danville, for appellants.

      Harold A. Craig, of Danville, for appellee.
   SMITH, J.

When a will is silent who gets the legacy when the legatee is not around to take? The antilapse statute says that if he is a descendant, his descendants take, and if a member of a class, the survivors take. Ill Rev Stats 1967, c 3, § 49. But what if the predeceased legatee is neither? In the matter before us, the single dispositive paragraph divides the estate into nine equal parts to be paid to nine nondescendants and nonclass legatees, and nothing is said anywhere in the will as to where the shares shall go in the event the death of any of them predeceases the testator. This contingency has occurred as to five and the remaining four claim their shares. On the other hand, the heirs of the testator claim that such shares lapsed and passed to them as intestate property. Who is right? The lower court agreed with the surviving four and the heirs appeal.

Solution revolves around the concluding paragraph of the antilapse statute. The issue is simple. Does it apply? If it does, the shares go to the surviving legatees. It reads:

“. . . Except as above provided, when a devise or legacy lapses by reason of the death of the devisee or legatee before the testator, and there is no provision in the will for that contingency, the estate so devised or bequeathed shall be included in and pass as part of the residue under the will, and if the devise or legacy is or becomes part of the residue, the estate so devised or bequeathed shall pass to and be taken by the legatees or devisees, or those remaining, if any, of the residue in proportions and upon estates corresponding to their respective interests in the residue.”

While it doesn’t answer the precise question before us, it is a reasonable construction to say that if there is a residuary clause disposing of the “residue” of an estate, lapsed legacies like these fall into it and go the way the residuary clause says they should go. It is equally clear, we think, that surviving legatees in a residuary disposition receive the shares of those who predeceased the testator, “Except as above provided.” But the heirs argue here that because there is no residuary clause, the lapsed légaeies have no place to go in the will, and therefore pass outside of it to them. On the other hand, the survivors argue that the lapsed shares form a “residue” and the residue goes to them as the “remaining legatees” as the single dispositive clause was meant by the testator to dispose of “all” his estate. We agree.

The paragraph in question here reads:

“My Executor and Trustee shall make an accounting of all moneys, except that he may retain sufficient amount for fees and costs of administration expenses, to pay any and all current real estate taxes and other taxes, all just claims against my estate and the balance at any and all accountings shall be divided into nine (9) equal parts and pay one (1) part to each of the following persons, [naming them].”

“Residue” in the statute is to be used in the sense of that which remains of an estate after the payment of charges, debts, and bequests. The statute then says, as we read it, that such “residue” is to go to those who take the “residue under the will” which here are the surviving legatees, “or those remaining.” While there is no true residuary clause, the dispositive paragraph we are concerned with, in effect disposes of the “residue under the will,” and if so, it is to “pass to and be taken by the legatees or devisees, or those remaining.” The statute then goes on to say that they take it “in proportions and upon estates corresponding to their respective interests in the residue”—which is to say, in the proportion and upon estates that they initially took.

It seems to us, therefore, that where, as here, there is no residuary clause, the remaining four legatees share equally in the “residue” made up of the five lapsed shares. They share equally, because that was the proportion corresponding to their respective interests. The result we reach appears to be the result intended by the leglislature by this amendment to the antilapse statute. Furthermore, it appears to us also that the result we reached squares with the intention of the testator. It was clearly his intention that the nine named should get “all” of his estate. This intent would be defeated if we now permitted five of the shares to lapse and pass outside the will to persons who are not referred to at all.

The purpose of the antilapse statute as now constituted is to cover all cases of legacies which lapse because of death before the testator and to eliminate, so far as possible, the occurrence of intestacy. A construction which would permit these legacies to lapse is not in accord with this purpose. If its purpose was to allow legacies of the type we have here to lapse and pass as intestate property, then it would have been easy for the legislature to have said so, in much the same way that a testator by this very statute must make provision in his will for the contingency of prior death or otherwise it will go the way the statute says.

The order appealed from is affirmed.

Affirmed.

TRAPP, P. J. and CRAVEN, J., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Ira Richard Lowe, Jr., Defendant-Appellant.
    Gen. No. 11,021.
    Fourth District.
    June 10, 1969.

      J. Waldo Ackerman, of Springfield, for appellant.
    Raymond L. Terrell, State’s Attorney of Sangamon County, of Springfield, for appellee.
   SMITH, J.

The defendant was found guilty in a bench trial for attempted armed robbery and robbery and was sentenced 3-8 years for the attempt and 6-12 years for the robbery. The sentences run concurrently. The State’s Attorney filed a petition alleging he believed that the defendant had been diagnosed incompetent recently by phychiatrists and the defendant was examined by two court-appointed psychiatrists. It is the position of the defendant that having presented such a petition the issue should have been adjudicated by the trial court and (1) it was error to permit the State’s Attorney to withdraw the petition and (2) the defense in the trial being insanity it was error to permit one of the examining psychiatrists to testify in rebuttal concerning his examination of the defendant pursuant to the order of the court on the question of sanity at the time of the commission of the offense for the reason that it violated the patient-doctor relationship. Neither of these contentions is well founded.

Defendant cites People v. Maynard, 347 Ill 422, 179 NE 833, as authority for the proposition that the State was without authority to withdraw the petition to inquire into the defendant’s mental capacity to stand trial. The case cited has no relation to the facts in the case at bar. In Maynard, defendant’s own counsel filed a petition asserting that he had been previously adjudicated insane and had been an inmate of the Elgin State Hospital. This petition was withdrawn and the Supreme Court stated this was error on the well known rule that where insanity is proved as existing at a particular time it will be presumed to continue until disproved. Thus there was in the record at the time of the dismissal of the petition in Maynard a bona fide doubt of the defendant’s sanity. In our judgment, the facts in the case at bar are strikingly similar to People v. Bortnyak, 39 Ill2d 545, 237 NE2d 451. In the case at bar, the State filed a petition stating that it had been informed that the defendant had had psychiatric treatment sometime previous to the commission of the alleged crime and asked that his mental competency to stand trial be determined. Two psychiatrists were appointed, examined the defendant and reported that he was competent to cooperate with counsel in his defense and to understand the nature of the offense for which he was charged. When such report was made by the court-appointed psychiatrists, the State then withdrew its petition. Under these circumstances we think it defies ordinary common sense on the part of anybody to reach a conclusion that there was a bona fide doubt of the defendant’s sanity or of his ability to cooperate with counsel and understand the nature of the charge against him. No objection was made to the withdrawal of the petition, the defendant proceeded to trial without objection and raised the defense of insanity at the time of the commission of the offense. The psychiatric history of the defendant shown by the record in Bortnyak was much more severe than the mere suggestion here of mental illness. It was there held to be insufficient to raise a bona fide doubt as to the defendant’s competency to stand trial. It controls our decision here and there was no error by the trial court in this respect. The suggestion that the court should have proceeded in the matter and entered a formal order is an effort to substitute formalism for fact and it is the fact and not the formalism that determines the rights of the defendant.

Defendant complains that one of the examining psychiatrists should not have been permitted to testify in rebuttal as to the sanity of the defendant at the time of the commission of the offense after the issue of insanity was raised by and evidence offered by the defendant on his mental status. This, it is said, violates the rights accorded to the defendant in Ill Rev Stats 1967, c 38, § 104-2, which provides in substance that no statement made by an accused in the course of an examination into his competency shall be admitted in evidence against the accused on the issue of guilt in any criminal proceedings. In People v. Williams, 38 Ill2d 115, 121, 230 NE2d 224, 223, the Supreme Court stated:

“. . . we interpret the prohibition expressed in the above quoted provision to be limited to ‘statements’ made by the accused while being examined which are offered for their truth as opposed to statements offered not for their truth but to show defendant’s mental condition.”

This case fully negates the argument that the purpose of the statute was to encourage defendants to cooperate with a court-appointed psychiatrist. The immunity granted by the statute as interpreted in Williams satisfactorily assures such cooperation.

The last contention that the testimony in rebuttal violated the patient-doctor relationship as it was a confidential communication is likewise without merit. Defendant cites Ill Rev Stats 1967, c 51, § 5.2 on this point. This same section was relied on in People v. English, 31 Ill2d 301, 201 NE2d 455, and the Supreme Court there held that this section does not apply to the psychiatrist-patient privilege where the examination is by a court-appointed physician because such examination does not constitute consultation with the physician in his professional character and does not apply where the court orders a psychiatric examination.

There being no error in this record, the judgment of the trial court is affirmed.

Affirmed.

TRAPP, P. J. and CRAVEN, J., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Floyd Sephus, Also Known as Sonny Sephus, Defendant-Appellant.
    Gen. No. 11,049.
    Fourth District.
    June 10, 1969.
    Pollock & Ennis, and Harold L. Madsen, of Quincy, for appellant.

      Robert J. Bier, State’s Attorney of Adams County, of Quincy, for appellee.
   SMITH, J.

On the second day of his trial on a charge of murder, the defendant entered a plea of guilty to voluntary manslaughter, a subsequent hearing in aggravation and mitigation was held and the defendant sentenced to 13 to 20 years in the penitentiary. His sole contention on appeal is that the sentence is too long and we should reduce it.

Under Supreme Court Rule 615, Ill Rev Stats 1967, c 110A, § 615, we may “(4) reduce the punishment imposed by the trial court.” The rule just quoted is former Ill Rev Stats 1963, c 38, § 121-9, without substantial change and the committee comments under that statute state its purpose is that a reviewing court should have the power to do complete justice when a case is before it. It is limited, however, by the facts in the record and the law applicable thereto in each case. In People v. Taylor, 33 Ill2d 417, 211 NE2d 673, the Supreme Court indicated that the use of this statute (now Rule 615) should be used by a reviewing court with considerable caution and circumspection for the very cogent reason that the trial judge ordinarily has a superior opportunity in the course of the trial and the hearing in aggravation and mitigation to make a sound determination concerning the punishment to be imposed. In People v. Bonner, 37 Ill2d 553, 229 NE2d 527, the Supreme Court noted that since the imposition of sentence is a matter of judicial discretion, the exercise of that discretion will not be altered by a reviewing court in the absence of its manifest abuse. In People v. Nelson, 41 Ill2d 364, 243 NE2d 225, the court again indicated that the burden of presenting mitigating circumstances in a record falls upon a defendant and it is he who must make a substantial showing in order to justify a reduction of sentence on review.

In the light of these principles, we turn to the record. The decedent came to her death as a result of a brutal beating at the hands of the defendant with whom she had lived for four to six months. A psychologist connected with the Adams County Mental Health Clinic testified that defendant’s intellectual level was “mild retardation” with an IQ of 76, and that the normal is 90 to 110. The defendant was convicted in September, 1963, and served three years in the Federal Penitentiary at Terre Haute, Indiana, for interstate transportation of a female for immoral purposes. On the day of the occurrence, he had spent the greater part of the day and the evening in a tavern of his brother. The decedent was there with him, but apparently left before he did. One witness testified to hearing an argument between a man and a woman when he was several houses down the street, and characterized it as a commotion and quarreling. The girl was found the following morning “badly beaten” and dead. The defendant was in love with the girl and had rented their quarters for them. The decedent had apparently gravitated between the defendant and another boyfriend and intended to return to the other. Whether the defendant actually knew this or not is not clearly shown by the record. The defendant did not testify in mitigation and aggravation nor relate any of the circumstances of the events nor offer any evidence other than what we have rather briefly recited. We are asked at this distance and on this cold record to reduce a sentence imposed by an experienced trial judge whose opportunity to view the witnesses and observe the defendant is far superior to ours. There is nothing to indicate what the motive might have been. It is clear that whatever the decedent’s condition was immediately after the beating, the defendant fled, leaving her dead or dying and afterwards returned when he learned that a warrant had been issued for him. There is not one single bit of evidence in this record which suggests that the interests of society would be better served by reducing the minimum. There is nothing in this record which would justify a return of this case to the trial court for further examination nor is there anything that remotely suggests an abuse of discretion on the part of the trial judge in imposing the sentence here given. The sentence is neither excessive nor unreasonable. It is therefore affirmed.

Affirmed.

TRAPP, P. J. and CRAVEN, J., concur.


author: MR. JUSTICE DAVIS

text:
    In the Matter of the Estate of George B. Garrett, Deceased. Lucille Loftus, Administrator of the Estate of George B. Garrett, Deceased, Petitioner-Appellant, v. Sherman S. Garrett, Respondent-Appellee.
    Gen. No. 68-169.
    Second District.
    June 10, 1969.

      Aplington, Kaufman and Barry, of LaSalle, and Charles E. Weiland, of Peru, for appellant.
    Winston, Strawn, Smith & Patterson, of Chicago, and Edward M. Sullivan, of Amboy, for appellee.
   MR. JUSTICE DAVIS

delivered the opinion of the court.

The parties litigant are before this court a second time, the first appeal being reported in In re Estate of Garrett, 81 Ill App2d 141, 224 NE2d 654 (1967). In that proceeding, the respondent, Sherman S. Garrett, appealed from an order in a section 183 citation proceeding (Ill Rev Stats 1965, c 3, pars 183-186), directing him to turn over to the estate of George B. Garrett, deceased, certain specified monies, securities and property, or the proceeds of the sale thereof, to the extent they were not used for the care and support of the decedent, or for the payment of his obligations and funeral expenses.

The citation petition alleged that the respondent was believed to have in his possession, certain property belonging to the decedent or his estate, and that he had information concerning such property which was needed for the recovery thereof. It prayed that the respondent be cited to appear and testify touching the property in his hands or about which he may have information, and that the court enter a proper order if it be found that such property is the property of the decedent. The petition did not allege that the respondent concealed, embezzled or had wrongfully converted such property.

The evidence in that litigation indicated that most of the property in question had been sold; and that the proceeds were no longer in the possession of the respondent, but had been turned over to others, who, for the most part, were his relatives.

We there held that the order of the trial court went too far in directing the respondent to turn over properties that had already been distributed to others, who were not before the court. To the extent that the evidence showed that such property was still within the possession of the respondent, we affirmed the order of the trial court directing that such property be turned over to the estate.

On remand of the case, the petitioner filed a supplemental petition, Count I of which alleged that by virtue of the prior orders of the trial court and of this court, it had been adjudicated that the property, over which the respondent had obtained possession and control, was that of the decedent, to the extent it had not been expended for his benefit; that the proceeds of the bank accounts and from the liquidation of such other property, approximated $77,000, of which $76,500 had been distributed to others, and $500 remained in the possession of the respondent; that by virtue of the prior adjudication, the respondent was indebted to the estate in the sum of $76,500; and that judgment should be entered therefor.

The answer of the respondent admitted the prior proceedings but denied that the orders of the trial court and this court were res judicata as to the question of the right, title and interest to the property obtained by the respondent from the decedent, other than the $500 which had remained in the respondent’s possession. The answer also denied that the respondent held said property in trust for the exclusive benefit of George B. Garrett, now deceased, and denied that the respondent disbursed, transferred and paid out a sum of not less than $76,500 of funds derived from said property, plus dividends and attendant income. The petitioner filed a motion for judgment on these pleadings, which was denied. The court found no just reason for delaying appeal and this appeal followed.

The original order of the trial court found that certain designated property, owned by the decedent, was transferred by him to the respondent; and that such property or the proceeds of the sale or transfer thereof, together with the income derived therefrom and from certain realty, not expended for the care and support of the decedent or for his funeral expenses, was the property of the decedent and was unlawfully withheld from his administrator.

In its memorandum decision, the court fully discussed many factual matters and commented with reference to the law, but such conclusions in relation to law and fact were not included in the judgment of the court. The decision was in form of a discourse, and there the court found that no trust was created by the decedent due to lack of certainty as to the subject matter, nature and quantity of the interests to be received by the beneficiaries and the manner of performance; and the court concluded that there was no inter vivos gift, that the respondent was simply an agent of the decedent—managing his affairs while he lived—and that upon his death the respondent held this property in constructive trust for the decedent’s estate. There was testimony which indicated that the proceeds from the liquidation of this property approximated the sum of $77,000, but the exact amount was not determined by the trial court in the prior proceeding or by this court on review.

The framework of the doctrine of res judicata has been delineated numerous times. If a prior judgment is raised as a complete bar against a second action, both as to the matters actually adjudicated in the first action and as to those matters which could have been raised therein, there must be—as between the actions—identity of parties, of subject matter, and of cause of action. This has been referred to as the doctrine of res judicata, and sometimes, as an estoppel by judgment. Where the parties are the same and thé same subject matter is the basis for the action, but there is a different claim or demand, the prior judgment then operates as an estoppel only as to those matters in issue or points controverted therein, and is conclusive only as to those questions actually raised and determined. This is sometimes denominated as an estoppel by verdict. Smith v. Bishop, 26 Ill2d 434, 436, 437, 187 NE2d 217 (1962); Winkelman v. Winkelman, 310 Ill 568, 572, 573, 142 NE 173 (1924); Chas. Ind Co. v. Cecil B. Wood, Inc., 56 Ill App2d 30, 36, 205 NE2d 786 (1965).

The present action has, with reference to the prior action, an identity of parties, an identity of subject matter, except for the sum of $500 which the trial court and this court directed the respondent to deliver to the administrator in the prior action, but it involves a different claim or demand—it seeks a judgment in favor of the plaintiff and against the respondent in the sum of $76,500. Thus, the doctrine of res judicata is not applicable. The doctrine of estoppel by verdict operates only as to those matters in issue or points controverted in the first action, and the question of wrongful conversion or possible embezzlement were not at issue and were not determined in the first proceeding by the order of the trial court or by our decision. Consequently, the plaintiff cannot prevail under the doctrine of res judicata or estoppel by verdict.

We affirmed that portion of the order of the trial court which held that the respondent must turn over to the estate the $500 remaining in his possession. However, we did not adjudicate the title to all of the property which the respondent had received from the decedent. The property, other than the $500 was not possessed by the respondent; it had been transferred and delivered to other parties who were not before the court.

The citation petition contained no allegations, and no proof was offered that the respondent either embezzled or wrongfully converted the property not in his possession. In fact, the petition indicated that information only was sought with reference to the property which the respondent had transferred. In responding to the issues raised by the petition, the respondent had no notice that a money judgment was sought against him for the value of the property which he had transferred.

Consequently, neither the trial court nor this court could, under these circumstances, properly adjudicate the title to such property; nor could either court determine that the respondent was guilty of wrongful conversion of the property, or of its embezzlement. In re Estate of Garrett, supra, 148, 149; Broberg v. Mann, 66 Ill App2d 134, 137, 138, 213 NE2d 89 (1965); Wilson v. Wilson, 56 Ill App2d 187, 194, 205 NE2d 636 (1965).

The issue of whether the property then possessed by respondent—over whom the court had jurisdiction—was received by him from the decedent under some form of trust for the benefit of others, or was in fact received merely as an agent for the decedent, was conclusively determined in the prior adversary proceeding and is binding upon the parties here. Skidmore v. Johnson, 334 Ill App 347, 363-365 inch, 79 NE2d 762 (1948); In re Estate of Stahl, 305 Ill App 517, 531, 27 NE2d 662 (1940); Coon v. McGrath, 273 Ill App 300, 304 (1934). However, such adjudication related only to the sum of $500 which the respondent then possessed.

The issue raised in the prior appeal to this court was that the order of the trial court purported to direct the respondent to turn over property which was no longer in his possession. It, thus, purported to adjudicate property rights with reference to property which the respondent had transferred and delivered to persons not before the court.

Count I of the supplemental petition, and the answer thereto raised questions of fact and law. To date there has been no adjudication of the actual amount, if any, due and owing to the plaintiff, over and above the $500 in question. The answer to the complaint denied that the respondent held the property other than the $500 in trust for George B. Garrett, now deceased, and denied that he transferred and paid out a sum of not less than $76,500. In order to adjudicate these questions, it is necessary that the appropriate issues be raised in the pleadings; and when raised, joined and controverted, such issues should then be determined from the evidence presented at a hearing on the merits of the cause.

In our prior decision (81 Ill App2d 141, 224 NE2d 654), at page 151, we stated:

“The present respondent herein, and any additional parties who are named as respondents in the supplemental petition, shall be given adequate opportunity to answer such petition and to interpose such affirmative defense or defenses as he or they may desire. Upon issue being drawn, the court should then conduct a full hearing on such issues and enter such judgment as may be proper in view of the issues drawn by the pleadings and the evidence adduced.
“For the reasons we have indicated, that part of the order or judgment of the trial court directing the delivery by respondent to the administrator of the properties still within the possession of the respondent, to-wit: the sum of $500 is affirmed; the remainder thereof is reversed and the cause remanded for further proceedings consistent with the views expressed herein, subject to the ultimate factual situation as established by the evidence.
“Affirmed in part and reversed in part, and remanded.”

Accordingly, the trial court properly denied the petitioner’s motion for judgment on the pleadings as to Count I, and his order denying judgment thereon should be affirmed.

Judgment affirmed.

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


text:
    Adron Paul Brainerd Plaintiff-Appellant, v. First Lake County National Bank of Libertyville, a Corporation, and William G. Hoskins, Robert O. Dunn and Milutin Djordjevich, et al., Defendants-Appellees.
    Geni No. 69-9.
    Second District.
    June 10, 1969.

      Adron Paul Brainerd, pro se, of Libertyville, appellant.
    Hall, Meyer, Fisher, Holmberg, Snook & May, of Waukegan, for appellees.
   MR. JUSTICE DAVIS

delivered the opinion of the court.

This appeal tests the propriety of the judgment order of the trial court which dismissed the plaintiff’s complaint.

The plaintiff, appearing pro se, filed a four-count complaint against the “First Lake County National Bank of Libertyville, a corp., William G. Hoskins, Robert 0. Dunn and Milutin Djordjevich, et al., defendants.” The four counts of the complaint were preceded by an introductory or synopsis count.

Counts 1 and II charged that the “defendant” improperly debited the plaintiff’s account and unlawfully refused to honor his demand for withdrawal of funds; and asserted that by reason of this wanton misconduct, the plaintiff demanded judgment for $100,000 against each of the defendants.

In Count III, the plaintiff alleged that the defendant, First Lake County National Bank of Libertyville, committed various torts, which presumably included false arrest and malicious prosecution; and in Count IV, he asserted that the “defendant” committed such torts. In these counts he demanded judgment in the sum of $100,-000 against each of the defendants. The complaint was verified and was filed June 14, 1968. The defendants were promptly served with process and an appearance was filed by attorneys on their behalf.

On July 1, notice was mailed to the plaintiff that counsel for the defendants would appear before the motion judge of the 19th Judicial Circuit, Lake County, and move the court to enter an order granting to the defendants an additional thirty days in which to answer or plead to the complaint. Such order was entered July 16.

On August 12, the defendants filed a motion to strike the synopsis count of the complaint in that its subject matter was repeated in Counts I, II, III and IV, and it contained several causes of action pleaded in one count in violation of sections 31 and 33(1) and (2) of the Civil Practice Act. (HI Rev Stats 1965, c 110, pars 31 and 33(1) and (2).)

The defendants moved to strike the numbered counts for the following reasons:

In Count I, the plaintiff neither indicated whether one or all, or more than one but less than all of the defendants were charged with a particular act, nor specified which defendant or defendants were so charged; it affirmatively appeared on the face of Count I and its exhibits, that the defendant had complied with section 4-101 et seq. of the Commercial Code (111 Rev Stats 1965, c 26, pars 4-101 et seq.); no facts were pleaded to show any unlawful act or breach of fiduciary duty by any of the defendants; no facts were pleaded to give rise to any claim for damages; and legal conclusions were asserted by the words, “unlawfully and in breach of fiduciary duty” and “wanton misconduct,” without any facts being pleaded in support thereof.
In Count II, the plaintiff failed to plead facts which would show that on the date of his demand, there were sufficient funds in his account to honor his requested withdrawal; and it affirmatively appeared on the face of such count, that the Cashier’s check was issued by the defendant Bank at the plaintiff’s request and that the purported “stop order” pleaded therein was of no legal effect, pursuant to section 4-303 of the Commercial Code (111 Rev Stats c 26, par 4-303); and that legal conclusions were asserted by the words, “unlawfully and in breach of fiduciary duty,” without any facts being pleaded in support thereof.
In Count III, the plaintiff failed to state a cause of action for malicious prosecution in that it was drafted in a vague and uncertain manner and none of the defendants could determine what particular act or acts they were charged with; the plaintiff endeavored also to allege a cause of action for false imprisonment which was not pleaded in the alternative; and that legal conclusions were asserted by the words, “which was the final determination thereof in favor of the plaintiff,” without any facts being pleaded in support thereof.
Count IV failed to state a cause of action because it affirmatively appeared on its face that there was no final determination of the issue in the criminal action; that it was impossible to determine from the face of the complaint whether each defendant was being charged with the acts complained of or whether some defendants were being charged with a particular act; and that the count was duplicitous in that it attempted to allege therein a cause of action for false arrest and for malicious prosecution in violation of section 33 of the Civil Practice Act (111 Rev Stats 1965, c 110, par 33).

On August 15, the plaintiff was given leave to file a motion for a summary judgment and the defendants filed a motion to produce memoranda, statements, books of account, documents, etc., relating to the alleged damages. On August 22, the plaintiff filed a motion to overrule the defendants’ motion to strike and on August 23, he filed a motion to overrule the defendants’ motion to produce and a document called “Motion to Summary Judgment.” On August 27, the court heard and denied the plaintiff’s motion for summary judgment and continued the defendants’ motion to strike until September 26.

On September 17, the plaintiff filed a Motion To Vacate Extension, Motion To Vacate Hearing Date, and Motion To Vacate, all of which were denied on September 20; and on this date, the court set September 27 as the date for hearing on the Motion To Strike, at which time it was argued and allowed. The plaintiff was given leave to file an amended complaint by October 28.

On September 27, the plaintiff moved the court to change judges; and on October 25, moved for a further extension of time within which to file the amended complaint. The motion for an extension of time was based on the fact that an action was pending in the Supreme Court. It was denied. After the filing of the motion to change judges, all further matters were heard by a different judge or judges.

On November 7, the defendants moved the court to enter a final order in accordance with the provisions of section 45 of the Civil Practice Act (Ill Rev Stats 1965, c 110, par 45) and such order was entered November 7,1968.

Upon appeal, the plaintiff urges that the trial court erred in dismissing his complaint and abused its discretion in refusing to grant him an extension of time within which to file his amended complaint; and that the trial court erred in denying his motion for summary judgment and his other motions heretofore enumerated.

The introductory or synopsis count of the complaint violates most of the pleading requirements of the Civil Practice Act. It purports to include therein, without alternative allegations, and without specifying the duty violated by any particular defendant, four different eaúses of action against “defendants,” in vague, ambiguous, conclusionary and verbose language. See: Ill Rev Stats 1965, c 110, pars 21 (4), 24 (3), 38 (1) and (2), and 43 (1) and (2). It is obvious that it should have been stricken.

In Count I, the plaintiff attempted to state a cause of action against “defendant” as the result of a stop payment order by a drawer of a check in the amount of $45.75, payable to Brainerd Electronics. The plaintiff alleged that the defendant “unlawfully and in breach of fiduciary duty” marked the check as “payment stopped” and deducted the sum from the plaintiff’s account. No facts are pleaded to show why the stop payment order was unlawful. It is elementary that a complaint must contain facts sufficient to establish a duty on the part of the defendant before a cause of action can be stated. Bottorff v. Spence, 36 Ill App2d 128, 130, 183 NE2d 1 (1962); Miller v. First Granite City Nat. Bank, 349 Ill App 347, 351,110 NE2d 651 (1953).

The following language of Miller v. First Granite City Nat. Bank, supra, at page 353, is most applicable to the case at bar:

“Since the complaint fails to allege that the bank has any funds deposited in plaintiffs’ names, nor any facts which give plaintiffs a right to demand from the bank funds or securities which are not deposited in plaintiffs’ names, or the name of any of them, no cause of action is stated, and the court properly dismissed the complaint and entered judgment for defendant.”

Count I did not state that at the time the check complained of was presented for payment, the bank had on deposit to the credit of the drawer, a sufficient amount of money to pay it. The allegations of Count I were fatally defective in both form and substance.

In Counts I, II and IV, four-named defendants, plus an “et al.,” are named in the caption thereof, but nowhere in the body of the three counts are any of the defendants mentioned by name. The only reference by the plaintiff to the adverse parties, other than in the prayer for relief, is by the word “defendant.” This procedure violates section 21 (4) of the Civil Practice Act.

In Arthur Rubloff & Co. v. Leaf, 347 Ill App 191, 197, 106 NE2d 735 (1952), the defendant was sued individually and in a representative capacity. The body of the complaint did not clearly state whether the judgment sought was against the defendant individually or in his representative capacity. The court held the allegations to be indefinite and ambiguous, and that the complaint should have been stricken.

Counts II, III and IV are generally subject to the same objections as to form, as Count I. Count II alleged that the defendant unlawfully and in breach of fiduciary duty failed and refused to honor the plaintiff’s demand for withdrawal. The rules of pleading and the citations heretofore set forth with reference to Count I have equal application to Count II.

Counts III and IV each purported to allege two causes of action in a single count, without alternative allegations, in violation of section 33 (2) of the Civil Practice Act; each alleged cause of action was stated in stultified, vague and prolix language, in violation of section 33(1) of the Civil Practice Act. The counts also appear to be deficient in substance for the reasons cited in the defendants’ motion to strike. The trial court did not err in striking the complaint.

The plaintiff’s motion for an additional extension of time within which to file an amended complaint asserted that the court was without jurisdiction to proceed with the action in that the plaintiff had filed a petition for mandamus against all of the judges of the Nineteenth Judicial Circuit. The court’s denial of the plaintiff’s motion did not constitute an abuse of discretion. See: Chicago Land Clearance Commission v. Darrow, 12 Ill2d 365, 370, 371, 146 NE2d 1 (1957).

We also conclude that the trial court properly denied the plaintiff’s motion for summary judgment and the various other unorthodox motions heretofore enumerated. The plaintiff’s verified motion for summary judgment was filed while the defendants’ motion to strike was pending. It merely reaffirmed the matters alleged in the complaint without further elaboration. Rule 191 of the Supreme Court provides:

“Affidavits . . . shall set forth with particularity the facts upon which the claim, counter claim, or defense is based; shall have attached thereto sworn or certified copies of all papers upon which the affiant relies; shall not consist of conclusion but of facts admissible in evidence. . . .”

(Ill Rev Stats 1967, c 110A, par 191.)

The plaintiff’s reaffirmation of his complaint did not constitute compliance with the above rule. In addition, the function of the court, when presented with a motion for summary judgment, is to determine whether a genuine issue existed as to a material fact. Such issue could not be determined in the case at bar until after answer was filed. Lumbermens Mut. Cas. Co. v. Poths, 104 Ill App2d 80, 243 NE2d 40 (1968).

In view of these circumstances, it is our conclusion that the rulings of the trial court were proper, and that the complaint was properly dismissed with prejudice. Accordingly, the judgment of the trial court is affirmed.

Judgment affirmed.

ABRAHAMSON and SEIDENFELD, JJ., concur.


text:
    William T. Giova and Rosemary Giova, Plaintiffs-Appellees, v. Guy C. Carrol, Jane V. Carrol, and Douglas C. Hancock, Defendants-Appellants.
    Gen. No. 69—6.
    Second District.
    June 10, 1969.

      Douglas C. Hancock, of Elmhurst, for appellants.
    Miller & Ribstein, of Chicago, for appellees.
   MR. JUSTICE DAVIS

delivered the opinion of the court.

This is an appeal from a summary judgment entered in favor of the plaintiffs and against the defendants in the sum of $1,000, plus costs of the suit. The appeal raises the question of the propriety of a summary judgment under the facts of the case.

The plaintiffs failed to file an appellees’ brief which would justify a reversal of the trial court without consideration of the cause on its merits. Beinarauskas v. Beinarauskas, 90 Ill App2d 381, 234 NE2d 16 (1967); American Nat. Bank & Trust Co. v. Bergstedt, 90 Ill App2d 381, 234 NE2d 56 (1967); Matyskiel v. Bernat, 85 Ill App2d 175, 178, 228 NE2d 746 (1967). However, under the circumstances, we deem it advisable to consider the merits of the case.

The undisputed facts, as set forth in the complaint are: The plaintiffs, as purchasers, entered into a contract to purchase certain real estate in the City of Elmhurst, from the defendants, Guy C. Carrol and Jane V. Carrol. The purchase price was $34,000, and pursuant to the contract, the plaintiffs deposited $1,000 as earnest money with the defendant, Douglas C. Hancock, as Escrowee, which sum was to be applied against the purchase price, if and when the sale was consummated. The contract described the property as “A single family residence commonly known as 305 Oaklawn Avenue, Elmhurst, Illinois, legally described as: ... ,” and it recited that the premises were subject only to: “Existing leases expiring 2nd floor month-to-month $130.00 monthly rent

The plaintiffs alleged, and the defendants denied, that there were two apartments in the real estate in question, in violation of the Zoning Ordinances of the City of Elmhurst; that Hancock had paid over $1,000 to the Carrols; that any demand was made on the Carrols to turn over such sum to the plaintiffs; and that they had wilfully refused to return it. The parties agreed that the real estate was located in District A—Single-Family Zone, as shown by the City Zone Map and Ordinances; and that the plaintiffs had made a demand on the defendant Hancock for the $1,000.

The defendants set up as an affirmative defense that the contract required the seller to furnish a title report or insurance to the purchasers; that in event of any defects in the title, the sellers should have 60 days from the date of the title report or insurance, to cure such defects; and, if such defects were not cured within that time, the purchasers could terminate the contract. The defendants admitted that the plaintiffs had served notice of termination of the contract, and asserted that the plaintiffs had no right to do so without giving the defendants 60 days within which to cure any alleged title defects. They further alleged that the plaintiffs’ failure in this respect constituted a default under the terms of the contract, which warranted the retention of the earnest money by the defendants, as liquidated damages.

The plaintiffs, in reply, alleged that the violation of the Zoning Ordinance did not constitute a defect in title, but rather, was a gross misrepresentation; that the termination of the contract by the plaintiffs was because of the zoning violation; that the defendants did not furnish any preliminary title report and thereby were guilty of an additional breach of duty under the contract.

In addition, as a reply, the plaintiffs alleged that the contract was void on its face in that it was in violation of sections 1 and 2 of chapter 29, Ill Rev Stats of 1967, since neither a certificate of compliance was attached thereto, nor did it contain an express written warranty “that no notice from any City, Village, or other governmental authority of a Dwelling Code Violation which existed in the dwelling structure before the contract was executed had been issued and received by the owner or his agent”; that such requirement could not be waived and, therefore, the contract was void.

In addition to the foregoing pleadings, the Carrols demanded and were furnished a bill of particulars by the plaintiffs. A bill of particulars is deemed to be a part of a complaint which it particularizes. Marion v. In re Estate of Wegrezyn, 93 Ill App2d 205, 208, 236 NE2d 328 (1968); Louis v. Barenfanger, 81 Ill App2d 104, 108, 226 NE2d 85 (1967).

The bill of particulars stated that the zoning restrictions, referred to in paragraph 4 of the complaint, which prohibited two apartments in the premises, are contained in chapter II, article 2, section 1-1.1 of the Amended Zoning Ordinance of the City of Elmhurst; that the exact details, in which the improvements on the premises in question are in violation of the Zoning Ordinances of the City, are: the upstairs is partitioned into a four-room apartment which is rented for $130 per month; that the parts of the premises which constituted a second apartment are—a side entrance into a vestibule with steps leading to a landing which is level with the first floor where a doorway has been installed, and from which steps to the second-floor apartment begin, thus, giving it privacy; that the second floor apartment has all facilities, except a kitchen; and that the tenants use a hot plate for cooking, which use violates the City Code.

With the pleadings in this posture, the plaintiffs filed a motion for a summary judgment, which was supported by an affidavit of the plaintiff, William T. Giova. The affidavit alleged the filing of the complaint; the payment of earnest money pursuant to the contract to purchase real estate; the discovery of zoning violations and the statutory violation; the demand for a return of the earnest money; the failure of the defendants to return it; and that the contract was void in that it was in violation of sections 1 and 2 of chapter 29, Ill Rev Stats of 1967. A copy of the contract was attached to the affidavit.

The defendants filed an answer to the affidavit wherein they denied that $1,000 was wrongfully retained by them; denied that the use of the real estate constituted a zoning violation; denied that the contract was void by virtue of the aforesaid statute, and further asserted that the statute applied only to multiple dwellings; and denied that $1,000 was due and owing to the plaintiffs.

The court entered summary judgment for the plaintiffs and against all defendants, in the sum of $1,000, plus costs of the suit. The defendants’ motion to vacate the judgment was denied, and upon appeal we face the threshold question of the propriety of the summary judgment.

In Lumbermens Mut. Cas. Co. v. Poths, 104 Ill App2d 80, 243 NE2d 40 (1968), we considered the nature, purpose and the propriety of the summary judgment procedure, and at pages 87 and 88 stated:

“The principles applicable to a motion for summary judgment under section 57 of the Civil Practice Act (Ill Rev Stats 1967, c 110, par 57) are well defined. Summary judgment is a procedure to be encouraged (Allen v. Meyer, 14 Ill2d 284, 292, 152 NE2d 576 (1958)); however, it is a remedy to be awarded with some caution so as not to preempt the right to a trial by jury or the right to fully present the factual basis for a case where a material dispute may exist. Ruby v. Wayman, 99 Ill App2d 146, 240 NE2d 699, 700 (1968); Solone v. Reck, 32 Ill App2d 308, 310, 311,177 NE2d 879 (1961); Tezak v. Cooper, 24 Ill App2d 356, 362, 363, 164 NE2d 493 (1960).
“Section 57 provides that a summary judgment should be rendered if the pleadings, depositions and admissions on file, together with the affidavits, if any, ‘show that there is no genuine issue as to any material fact, and that the moving party is entitled to a judgment or decree as a matter of law.’
“Courts have construed this section to mean that in determining if there is a genuine issue as to any material fact, inferences may be drawn from the facts which are not in dispute, and if fair-minded persons could draw different inferences from these facts then a triable issue exists. Ruby v. Wayman, supra, 700, 701; Peirce v. Conant, 47 Ill App2d 294, 300, 198 NE2d 555 (1964).
“In making the above determination on a motion for summary judgment, the court must construe the pleadings, depositions and affidavits most strictly against the moving party and most liberally in favor of the opponent. Solone v. Reck, supra, 311. A summary judgment should then be granted where the moving party’s right thereto is clear and free from doubt. Ruby v. Wayman, supra, 701; Palier v. Dreis & Krump Mfg. Co., 47 Ill App2d 334, 338, 198 NE2d 521 (1964); Solone v. Reck, supra, 310.
“Applying these principles, we believe that the trial court erred in granting a summary judgment in favor of Lumbermens. The only function of the court, when presented with a motion for summary judgment, is to determine if a genuine issue exists as to a material fact; if not, summary judgment is proper; if so, summary judgment is improper, as the court may not summarily determine a material fact issue. Kamholtz v. Stepp, 31 Ill App2d 357, 367, 176 NE2d 388 (1961).”

Thus, we must determine whether a genuine issue exists as to a material fact relevant to a determination of the case at bar. The pleadings indicate that the plaintiffs alleged, and the defendants denied, that there were two apartments in the real estate in question; that the defendant Hancock paid $1,000 to the Carrols; that demand was made on the Carrols, and that they wilfully refused to turn the earnest money over to the plaintiffs.

The defendants’ affirmative defense asserted that they were not given an opportunity to cure any title defects and that the plaintiffs’ failure to extend such opportunity to them constituted a breach of contract. Issue was also raised on these allegations by the plaintiffs’ reply, which asserted that the Zoning Ordinance did not constitute a defect in title, and that the termination of the contract by the plaintiffs was due to the Zoning violation.

The factual allegations of the affidavit of plaintiff, William T. Giova, in support of the plaintiffs’ motion for a summary judgment, were all denied, except the allegation that a copy of the contract between the parties was attached to the motion. While the issue, of whether sections 1 and 2 of chapter 29 are applicable to said contract, may constitute a question of law, the issue can only be determined after relevant facts have been established with reference to the dwelling structure located on the premises; such as the number of persons residing in such premises, the nature of the occupancy and whether the premises constitute a single-dwelling unit that is occupied by a family unit under the definitions of section 1, and other relevant facts. Such conclusion becomes obvious when the provisions of section 1, which provide as follows, are considered:

“Definitions. Sec. 1. As used in this Act, unless the context requires otherwise:
“(a) ‘Single dwelling unit’ means any apartment, efficiency apartment, kitchenette apartment, sleeping room, dwelling room or any other portion of any building or structure that is occupied or resided in by a family unit.
“(b) ‘Family unit’ means any person maintaining a household, or 2 or more persons maintaining a common household. A person is deemed to be maintaining a household even though the room or rooms being occupied are only sleeping rooms.
“(c) ‘Dwelling structure’ means any private home or residence, or any building or structure containing 12 or less single dwelling units for 12 or less family units, living independently of each other. A family unit is deemed to live independently of another family unit even though the family units may be required to share cooking facilities, laundry facilities or bathroom facilities. Dwelling structures do not include public or private hospitals, public or private school dormitories, fraternity houses, convents, monasteries, mental institutions, penal institutions, seminaries, State licensed nursing homes or shelter care homes, or any federal, State, county or municipal institution or home.
“(d) ‘Dwelling code’ means any municipal or county ordinance, building code, or law establishing construction, plumbing, heating, electrical, fire prevention, sanitation or other health and safety standards applicable to dwellings.
“(e) ‘Contract seller’ means the owner of a dwelling structure, or the owner’s agent who executes a contract to sell a dwelling structure for the owner.
“(f) ‘Contract’ means any contract or agreement whereby a contract seller agrees to sell and a buyer agrees to buy a dwelling structure and the contract seller continues to have an interest, or security for the purchase price or otherwise in that property. The term ‘contract’ includes contracts for deeds, bonds for deeds or any other sale or legal device whereby a dwelling structure is sold, conveyed or transferred for a consideration.
“(g) ‘Certificate of compliance’ means an affidavit executed by a contract seller stating that the dwelling structure was inspected within 30 days before the contract was executed, and that at the date of the execution of the contract the dwelling structure is not in violation of any dwelling code.” (Ill Eev Stats 1967, c 29, par 8.21.)

In determining the propriety of a summary judgment procedure, we must remember that the pleadings, affidavits and bill of particulars must be construed most strictly against the moving party—the plaintiffs— and most liberally in favor of the opponents—the defendants. Solone v. Reck, 32 Ill App2d 308, 311, 177 NE2d 879 (1961).

The foregoing facts give rise to genuine issues of material facts which were in dispute. The purpose of summary judgment is not to try an issue of fact, but rather, to determine whether one exists. A party’s right to summary judgment should be free from doubt. Lumbermens Mut. Cas. Co. v. Poths, supra, 92; Ruby v. Wayman, 99 Ill App2d 146, 151, 240 NE2d 699 (1968); and the court should not summarily determine a material fact issue. Ruby v. Wayman, supra, 150.

In the light of our determination, the judgment is reversed and the cause remanded to the trial court for further proceedings.

Reversed and remanded.

ABRAHAMSON and SEIDENFELD, JJ., concur.


author: PRESIDING JUSTICE MORAN

text:
    The First National Bank of Elgin, Conservator of the Estate of Michael Kirk, Incompetent, Plaintiff-Appellant, v. Michael Szwankowski, Defendant-Appellee.
    Gen. No. 68-130.
    Second District.
    June 12, 1969.

      Kirkland, Brady, McQueen, Martin & Callahan, of Elgin, for appellant.

      Matthews, Jordan, Dean and Suhler, of Aurora, for appellee.
   PRESIDING JUSTICE MORAN

delivered the opinion of the court.

Plaintiff, Conservator, appeals from the trial court’s denial of its post-trial motion seeking a new trial as to damages only on behalf of the plaintiff, Michael Kirk, an incompetent.

The plaintiff received injuries in an auto accident which occurred on April 4, 1966, when the southbound vehicle in which he was a passenger skidded sideways into the northbound lane of Williams Road and was struck broadside by the northbound vehicle of the defendant, Michael Szwankowski. Two of the occupants of the plaintiff’s vehicle died in the collision. Only the plaintiff, (who has no recollection of the occurrence and is incompetent as a result of it) along with a passenger, Randy LeMar, survived.

LeMar testified that, on the night of the occurrence, their driver, McDaniels, picked him up at about 7:30 p. m. and he, along with the other three teenage boys, departed on their way to a drive-in movie. The plaintiff was sitting in the left rear seat. After discovering that the movie was not open they stopped for a soft drink at a restaurant in Algonquin, Illinois. Leaving the restaurant, they drove to Williams Road, a paved, two-lane blacktop road. As they proceeded south on Williams Road at about the speed limit of 65 miles per hour, LeMar, who was in the front seat, told McDaniels, the driver, to slow down. McDaniels slowed down to 55 or 60 miles per hour. Just north of where the accident occurred there is a series of three small hills. McDaniels’ car was traveling 60 to 65 miles per hour as it went over the first hill. As the vehicle went over the second hill, the witness saw illumination coming over the last hill. He again warned the driver as to speed. The driver took his foot off of the accelerator but did not apply the brakes. As the vehicle came over the last hill, the speed of the car was about 60 miles per hour and the witness saw four bright headlights. McDaniels turned his head to the right, toward the witness, and squinted his eyes. The right wheels went off the road onto the right shoulder. He pulled back onto the road and the vehicle turned sideways, skidding into the northbound lane, where the McDaniels’ vehicle was struck broadside by the defendant’s car.

On cross-examination, LeMar stated that he did not tell the police officer that the defendant’s car had its bright lights on because the police officer had not asked him. He did tell the police officer that the McDaniels car was going at a high rate of speed. The witness was sure that the defendant’s driving lights were on bright because he saw four headlights on the vehicle and they did not dim prior to the impact.

The investigating police officer testified to the position of the vehicles at the scene and to his conversation with LeMar at the emergency room of the hospital following the accident. The most significant portion of his testimony concerned an alleged admission of LeMar that his driver jammed on the brakes and the car went off the road.

The jury considered the testimony of four doctors. Without going into the details, the treating physician was of the opinion that plaintiff sustained a brainstem contusion with multiple punctate, generalized with hemorrhaging within the brain and brainstem; that he was confined at Sherman Hospital from April 4, 1966 to May 14, 1966, where his behavior was irrational, noisy and bizarre; that he was restrained by straps and ultimately transferred to Rest Haven Hospital because his screaming disturbed the other patients; that while in the hospital he was without bowel control. The treating physician’s final diagnosis was a brainstem contusion with permanent brain damage.

One psychiatrist testified that the plaintiff was suffering from a chronic brain syndrome, gross force, with defect in his memory, learning ability and ability to think. In his opinion the plaintiff, who was 18 years of age at the time of the accident, had a mental age of eight years. He conducted an examination of the plaintiff in January and October of 1967. In his opinion the highest mental age the plaintiff can ever attain will be that of a ten-year old. He is not capable of working with tools or of living by himself or taking care of himself independently. He may be capable of doing menial work, such as sweeping and cleaning up.

A psychiatrist on the staff of Rest Haven Hospital testified that the plaintiff was hospitalized there from May 14, 1966, to August 28, 1967. His findings of November 1966 revealed that the plaintiff was confused and out of context; he could not respond to questions; he had no control over his bodily functions. He diagnosed the plaintiff as suffering from an acute brain syndrome associated with trauma with behavioral reactions. The diagnosis was finally changed to chronic brain syndrome due to trauma. In this doctor’s opinion the plaintiff had a mental age of seven years with impaired judgment, decreased ability to learn and childish behavior which is permanent in nature. The highest mental level that he can ever attain will be that of an eight-year old and he can not learn a skill.

The current room and board charge for minimum care facilities is $125 per month and the rate continues to rise. The bill from Rest Haven Nursing Home was $18,887.

A fourth doctor, a neurosurgeon, saw the plaintiff in the emergency room and found a positive Babinski sign. An electroencephalogram indicated damage to brain cells. Such tests were made in May and July of 1966. The final test given in October of 1967 was substantially normal. A lumbar puncture taken in April of 1966 found pressure and blood in the spinal fluid. The witness anticipates permanent impairment of mental functions. His bill was $355, of which $340 had been paid.

The employer of the plaintiff at the time of the accident, testified that Michael was one of the most apt beginners he had ever had, with a definite future with the firm doing radius grinding, a highly skilled job, in the manufacture of ball bearings. At the time of the accident the plaintiff was earning $2.15 per hour and in three or four years he would have earned $3.50 per hour. He never returned to work.

Plaintiff’s first cousin testified that at the time of the accident he had been living with her almost two years. He had never failed any grade school classes and had left high school in his senior year. In August of 1967 he left Rest Haven to live with her family in Tennessee. At the present time he cannot pay any attention to television or understand fifth grade work or books.

The medical bills incurred and paid are as follows:

Sherman Hospital ................ $2,215.80

Doctor A. Baumont Johnson....... 340.00

Doctor P. Travis ................. 500.00

Rest Haven Hospital ............ 13,887.00

The only witness produced by the defendant was an investigating police officer.

The jury returned a verdict on behalf of plaintiff against the defendant in the sum of $20,000 and answered two special interrogatories propounded by the defendant.

The first interrogatory, answered in the affirmative, queried:

“Was the Defendant, MICHAEL SZWANKOWSKI, guilty of negligence which was one of the proximate causes of the injuries to the Plaintiff, MICHAEL KIRK?”

The second interrogatory, answered in the negative, queried:

“Was the sole proximate cause of the injury to the Plaintiff the conduct of some person other than the Defendant?”

Defendant argues that before a new trial on damages can be granted there must be error at the trial court level that misled or prejudiced the jury and plaintiff complains of no error in the trial of the case other than the amount of the verdict. Defendant’s argument is not supported by the many cases cited and this court is unable to find any precedent supporting his argument.

Ordinarily the question of damages is peculiarly one of fact for the jury and courts are reluctant to interfere with the discretion of the jury. Flynn v. Vancil, 41 Ill2d 236, 240, 242 NE2d 237 (1968). In the present case the grave and permanent injuries sustained by the plaintiff were not contradicted by any defense evidence. The verdict of the jury is less than the out-of-pocket medical expenses and lost wages sustained from the date of the occurrence to the date of trial. There appears to be no question of the validity or reasonableness of the medical expenses and the amount of lost wages. Therefore, the question thus presented to this Court is whether the verdict is the result of a compromise of the liability and damages or the result of some other misadventure.

It is well settled that a court is not justified in ordering a new trial on damages alone where it appears that the damages awarded by the jury were the result of a compromise on the question of liability. McManus v. Feist, 76 Ill App2d 99, 103, 221 NE2d 418 (1966). Ordinarily, a court will not interfere with the discretion of the jury in its assessment of the damages except where the award is palpably inadequate or it is clear that a proven element of damages has been ignored, Lazzaro v. Garrett, 100 Ill App2d 452, 242 NE2d 59 (1968), or it is shown to be erroneous or the result of passion or prejudice, or where it clearly appears from the uncontradicted evidence that the amount of the verdict bears no reasonable relationship to the loss suffered by the plaintiff. Rapp v. Kennedy, 101 Ill App2d 82, 86, 242 NE2d 11 (1968).

The jury heard the only surviving, competent witness to the occurrence and observed his conduct under vigorous cross-examination. The investigating police officer also testified. At the conclusion of its deliberations the jury returned a general verdict on behalf of the plaintiff against the defendant. It also answered two interrogatories propounded by the defendant. Both of these interrogatories were answered in favor of the plaintiff and were consistent with the general verdict.

Part of the rationale supporting the practice of propounding an interrogatory to a jury is that a jury more clearly comprehends a particularized special interrogatory than a composite of all the questions in a case, and therefore, presumably, the jury has more intensively focused its attention upon the question presented. Houston v. Leyden Motor Coach Co., 102 Ill App2d 348, 243 NE2d 293 (1968). Extending that rationale to the fact of this case compels this court to the belief that the jury thoroughly considered the liability issues and the ample evidence supporting the verdict. The court is unable to say, with any certainty, that the jury compromised the damages awarded against the liability. This is especially so when the alternative is to hold that the general verdict of the jury was not supported by the • evidence and the jury totally disregarded the answers to the special interrogatories.

We are unable to imagine the misadventure the issue of damages suffered during the deliberations of the jury. It is apparent that the jury improperly assessed the amount of the damages for the verdict bears no reasonable relationship to the loss suffered by the plaintiff. The verdict does not even satisfy the uncontradicted elements of damages relating to medical expenses and lost wages.

We view this case as did our Supreme Court in the case of Paul Harris Furniture Co. v. Morse, 10 Ill2d 28, 139 NE2d 275 (1956) where at page 46 it stated:

“. . . that either a trial or an appellate court may set aside an inadequate verdict and order a new trial solely on the issue of damages in a proper case, that is, in a case where the damage issue is so separable and distinct from the issue of liability that a trial of it alone may be had without injustice. (Gasoline Products Co. v. Champlain Refining Co. 283 US 494, 75 L ed 1188.) We believe that in the instant case, since the verdict against Walker on the question of liability was amply supported by the evidence, the question of the amount of damages is separable and distinct from the issue of liability, and that the error which resulted in inadequate damages did not affect the issue of liability.”

Accordingly, the order denying the plaintiff’s post-trial motion is reversed and the cause is remanded to the trial court with directions to order a retrial on the issues of damages only.

Reversed and remanded with directions.

ABRAHAMSON and SEIDENFELD, JJ., concur.


text:
    Joe E. Eastabrooks, Plaintiff-Appellee, v. Eva Ravlin and Aurora National Bank, Defendants-Appellants.
    Gen. No. 68-190.
    Second District.
    June 12, 1969.
    John G. Plain, of Aurora, for appellants; Redman, Shearer & O’Brien, of St. Charles, for appellee.
   Opinion by

JUSTICE SEIDENFELD.

Not to be published in full.


text:
    Ashok Railkar, Plaintiff-Appellant, v. Janice A. Boll, Defendant-Appellee.
    Gen. No. 68-128.
    Second District.
    June 12, 1969.

      Howard and Decker, of Chicago, for appellant; O’Brien, Burnell, Puckett and Barnett, of Aurora, for appellee.
   Opinion hy

JUSTICE ABRA-HAMSON.

Not to be published in full.


author: TRAPP, P. J.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Kenneth E. Davis, Defendant-Appellant.
    Gen. No. 11,011.
    Fourth District.
    June 16, 1969.

      John Narmont, of Springfield, for appellant.
    Richard A. Hollis, State’s Attorney of Sangamon County, of Springfield (Lawrence Swinyer, Assistant State’s Attorney, of counsel), for appellee.
   TRAPP, P. J.

Defendant appeals from an order revoking probation which had been granted upon his plea of guilty to a charge of forgery. Sentence of not less than three nor more than twelve years was imposed.

The petition to revoke alleged violation of probation in that defendant forged a check within the statutory definition of c 38, § 17-3(a), Ill Rev Stats (1967); that he had failed to make restitution and pay court costs as required by the probation order, and that defendant used intoxicating liquors and was associated with known criminals in violation of the terms of probation.

In imposing sentence, the trial court considered the evidence at the revocation proceedings, together with the evidence in mitigation and aggravation given at the probation hearing. The latter evidence has not been incorporated in the excerpts in the record filed in this Court. The defendant waived further evidence in litigation.

Defendant contends that there was a failure to prove violation of the probation order by a preponderance of the evidence; that there is no substantial evidence that defendant was guilty of forgery as charged in the petition to revoke; that the defendant is wrongfully punished for alleged crimes subsequently committed, and in the alternative, that the sentence should be reduced as being unmeritedly stringent.

In this record it is admitted that defendant failed to complete the restitution, and to pay required court costs, although by his own statements, he was employed for a substantial period at a job which he described as “well paid.” It is admitted that he purchased intoxicating liquor and was in a tavern in violation of the terms of his probation. He offered certain explanations, but the trial court was not persuaded of the validity of such. Nothing compels a finding of error.

Defendant testified upon the charge of forgery allegedly committed subsequent to the probation order. Except for a change of date, the instrument in evidence upon the probation hearing was of the same quality and nature as those introduced upon the original charge, i. e., an instrument drawn upon an out-of-state bank purporting to be the check of a construction company in the sum of $123.60. Defendant denied that the endorsement of his name upon the check was in his handwriting. He undertook to explain that following his release upon probation he found a “stack” of such checks so made out in his baggage, and threw them in a drawer in a room in which he was then staying, and thought no more of them until he learned that they were being cashed. He thereupon went to the probation officer who advised him to report to the police. One Harold Davis, not of kin but a close associate, was also charged with forgery in connection with the latter checks. After consulting counsel, Harold Davis chose to testify upon this hearing to the effect that the defendant gave him two checks, on different occasions, to be cashed. He testified that the first check was given to him in payment for money owed by the defendant, and that upon the second occasion defendant told him that the check was no good and that the defendant would soon leave the State.

The contention that the prosecution failed to prove the subsequent forgery by a preponderance of the evidence can only be sustained by the literal acceptance of defendant’s statements. The trial court averred that he could not accept such explanations as true. There is nothing presented which makes it apparent to this Court that the trial court erred in assessing the credibility of the witnesses.

Defendant urges that the sentence is excessive in the light of the opinion in People v. Lillie, 79 Ill App2d 174; 223 NE2d 716. In that case the minimum sentence upon a charge of burglary was a term of twelve years. Here, the minimum is a term of three years upon a record which discloses a professional pattern designed for the issuance of a large number of forged checks. The trial judge has a superior opportunity to make a sound determination of a minimum sentence. The People v. Taylor, 33 Ill2d 417, 211 NE2d 673.

The order and judgment of the trial court is affirmed.

Affirmed.

SMITH and CRAVEN, JJ., concur.


text:
    Retha Harrolle, Plaintiff-Appellant, v. Jan N. Harrolle, Defendant-Appellee.
    Gen. No. 68-188.
    Second District.
    June 16, 1969.

      Cannariato, Nicolosi and Pigatti, of Rockford, for appellant; James F. Maynard, Maynard & Brassfield, of Rockford, for appellee.
   Opinion by

JUSTICE SEIDENFELD.

Not to be published in full.


author: PER CURIAM.

text:
    Glennon Leible and Ila Mae Leible, Defendants-Appellants, Ruth Rubinstein, Defendant, v. Lester Lofts, et al., Plaintiffs-Appellees.
    Gen. No. 68-72.
    Fifth District.
    June 12, 1969.
    A. Alan Hart, of Alton, for appellants; Richard A. Cagle, of Alton, for appellees.
   Opinion

PER CURIAM.

Not to- be published in full.