author: MR. JUSTICE MORAN

text:
    Charles Urnest, Plaintiff-Appellant, v. The Forged Tooth Gear Company, a Corporation, The Cornell Forge Company, a Corporation, A. Nelson Cornell, Alverin M. Cornell and Arthur M. Cornell, Defendants-Appellees.
    Gen. No. 52,250.
    First District.
    November 14, 1968.

      James L. Perkins, of Chicago (Winston, Strawn, Smith & Patterson, of counsel), for appellant.
    Thomas F. McWilliams and Howard J. DePree, of Chicago, for appellees.
   MR. JUSTICE MORAN

delivered the opinion of the court.

This is a so-called shareholders derivative suit brought by the plaintiff, Charles Urnest, as a minority shareholder of The Forged Tooth Gear Company, one of the defendants. The remaining defendants are The Cornell Forge Company, which is the principal shareholder of The Forged Tooth Gear Company, and three individuals, A. Nelson Cornell, Alverin M. Cornell and Arthur M. Cornell, who are the principal shareholders of The Cornell Company, as well as officers and directors of that company and the Forged Tooth Gear Company.

The alignment of the parties and the nature of the controversy can best be explained by a chronological account of the events which led to the lawsuit.

For some 35 years, The Cornell Company has been in the business of manufacturing and selling small steel drop forgings. It is an Illinois corporation, and has its office and factory in Chicago. In about 1938, The Cornell Company began to manufacture a new product, known as forged tooth gears. These gears were fabricated or forged at The Cornell Company, and then were sent to Western Metal Products Company for final machining and heat treating. Western Metal was another Illinois corporation controlled by the three individual defendants, who owned or controlled 49% of its stock. Cornell Company would pay Western Metals for its services, and this expense would be included by Cornell in the price it charged for its forged tooth gears.

In 1952, the individual defendants organized another Illinois corporation, known as The Forged Tooth Gear Company, hereinafter referred to as “FTG.” The total initial capital of FTG was $1,000, divided into 1,000 shares, all owned by The Cornell Company. The corporation was entirely inactive until 1958, and it appears that the purpose for its organization by the individual defendants was to protect the corporate name in the hope that forged gears would eventually become a successful product. During this period of inactivity of FTG, the three individual defendants served as its officers and directors.

In about 1957, problems arose between the personnel of The Cornell Company and Western Metal Products Company, with resultant difficulties in the production of forged tooth gears. The individual defendants, as officers of The Cornell Company, felt that they needed to retain the services of a gear expert, and the plaintiff was recommended to them as a man who could probably help them solve their problems. The plaintiff had been involved for a number of years in all phases of the manufacture of gears, at several different plants. He had worked at one gear company for twelve years, starting as a machine operator, and finally becoming a production manager.

Plaintiff and the individual defendants had a number of discussions in the summer of 1957, with the result that plaintiff went to work for the Cornell Company in July of that year, on a temporary or trial basis, at a salary of $200 per week. His duties were to work out the technical problems at Western Metals Company, to assist in the design and production of gears, and to help in the promotion and sale of forged tooth gears by The Cornell Cornpany. There was no written contract of employment, and no designated period of employment. The arrangement apparently worked out well, and plaintiff continued with The Cornell Company on this basis until April of 1958. During this period of time, however, plaintiff made it known that he was interested in acquiring some interest in the business which would give him an opportunity for capital gain, rather than ordinary income, and a consequent tax advantage. Finally, after a series of discussions with the individual defendants, it was agreed that the inactive corporation, FTG, would be activated for the purpose of giving the plaintiff this opportunity for capital gain as opposed to ordinary income. All parties agree that the only reason for activating FTG was to give plaintiff this opportunity for capital gain.

Following these discussions, in 1958, the articles of incorporation of FTG were amended so as to authorize the issuance of a total of 100,000 shares. On June 10, 1958, 19.000 shares of FTG were issued to The Cornell Company, so that Cornell then owned a total of 20,000 shares. An additional 10,000 shares were issued to the plaintiff. The purchase price was $1 per share, payable in cash.

In the activated FTG then, 29,000 additional shares of stock were issued, of which Cornell Company owned 20.000 shares, for which it paid $20,000 and the plaintiff owned the remaining 10,000 shares, for which he paid $10,000. On June 10, 1958, at a special meeting of the shareholders of FTG, plaintiff was elected a director to fill a vacancy left by the resignation of Arthur M. Cornell, and, on the same day, at a special meeting of the directors, plaintiff was elected president of FTG. It was further decided to pay plaintiff an annual salary of $13,000, together with a bonus.

Thereafter, the production and sale of forged tooth gears was conducted in substantially the same manner it had been before the activation of FTG. The Cornell Cornpany still manufactured the initial forging, Western Metal Products still did the machining and heat treating, and The Cornell Company still did the selling. FTG had no role whatever in the process. However, Cornell Company paid FTG a portion of its receipts from the sale of forged tooth gears. There was no fixed percentage which went to FTG, and it appears that the amount was almost arbitrary. The price of the gear to the Cornell customer was determined by adding the basic cost incurred by Cornell, the payments made to Western Metals for machining and heat treating, and as much of a mark up for profit as the circumstances of the individual sale would allow. A portion of this mark up went to Cornell and a portion of it went to FTG. Prior to the activating of FTG, the FTG portion had simply been retained by Cornell as part of its own profit.

FTG had its own bank account, and it deposited therein all of the checks it received from Cornell Company. It was from this account that plaintiff’s salary was paid. FTG had no equipment or machinery of any kind. Its only asset was cash in the bank. It did not have an office, but used space in the office of The Cornell Company, for which it reimbursed Cornell Company. FTG had no letterheads or stationery but used those of Cornell Company. It had no customers of its own, and no source of income other than its receipts from The Cornell Company. It had no telephone number, but used the telephone of Cornell Company. All billings were made by Cornell Company directly to the customer. The customer in turn sent back its check made payable to Cornell Company who in turn would divide the check between Western Metal, FTG and itself. The record bears out the finding of the Master that “all of its activities of every kind were conducted by and through Cornell Co.”

There was never any written employment contract between plaintiff and the Cornell Company, nor between plaintiff and FTG. There was no definite term fixed for his employment. Nor was there any written agreement between Cornell Company and FTG. There was no agreement of any kind whereby Cornell Company agreed to continue its relationship with FTG or to do business with FTG for any specific period of time. Neither was there any agreement as to how much Cornell Company should pay to FTG.

This arrangement continued until about March of 1959. Up to that time, the activated FTG had accumulated, by virtue of the payments from Cornell Company, $33,704.04, after payment of its expenses during that period. Thus, its net worth had increased from its original capital of $30,000 to a total of $63,704.04.

At the end of March, 1959, A. Nelson Cornell informed the plaintiff that the arrangement between Cornell Co. and FTG was to be discontinued, and plaintiff’s employment was to be terminated. He offered to return to plaintiff his original $10,000, investment in FTG, plus an additional $1,000 or $2,000 “to compensate him for the use of his money.” On April 17, 1959, a special meeting of the directors of FTG was held, at which a resolution was adopted removing plaintiff as president of FTG and designating A. Nelson Cornell to serve in his stead. Plaintiff voted against these resolutions.

The reason assigned by the individual defendants for plaintiff’s discharge was that he was not getting along with the personnel at Western Metals. The record does not make clear whether there was merit to this charge, and the lower court took the view that the reason for plaintiff’s discharge was immaterial.

After plaintiff’s discharge as president of FTG, the gear business of Cornell Company continued as before, with the work formerly done by plaintiff being performed by A. Nelson Cornell. No one was hired by FTG to take plaintiff’s place, and Cornell Company stopped making payments to FTG. Plaintiff objected to his discharge, and to the termination of the payments by Cornell Company to FTG.

In May of 1959, at the annual meeting of shareholders, Alverin M. Cornell and A. Nelson Cornell were elected directors of FTG on votes cast by Cornell Co. A third director was elected by the vote of plaintiff. In April, 1960, at a meeting of the FTG directors, a resolution was adopted by a two-to-one vote that the corporation be dissolved. The two affirmative votes were cast by the Cornells.

In May of 1960, at a meeting of FTG shareholders, Cornell Company voted its 20,000 shares in favor of the resolution to dissolve the corporation. Plaintiff voted his 10,000 shares against the resolution.

In this suit, plaintiff seeks to enjoin the dissolution of the corporation, and also prays for an accounting of the monies which, on his theory of the case, Cornell Company should have been paying to FTG since the time it stopped making payments. The defendants filed a counterclaim praying for a judicial declaration that FTG may properly be dissolved.

The case was heard by a Master, whose findings were against the plaintiff, and these findings were approved by the trial court. The decree of the lower court provided that FTG could properly be dissolved, and denied the relief sought by the plaintiff. The decree further provided that the court would reserve jurisdiction to insure that the dissolution was carried out in accordance with law, and that plaintiff’s rights as a minority shareholder were fully protected.

Plaintiff contends on this appeal that The Cornell Company, as majority shareholder of Forged Tooth Gear Company, owed a fiduciary obligation to Forged Tooth Gear and to the plaintiff, as its minority shareholder. Similarly, plaintiff argues that the individual Cornells, as directors and officers of FTG, owed fiduciary obligations to FTG and to plaintiff as a minority shareholder. Plaintiff contends that Cornell Company and the individual Cornells breached these fiduciary obligations by terminating the relationship between Cornell Company and FTG and by voting to dissolve FTG. Plaintiff cites a number of authorities for the well-known propositions concerning the duties owed by officers, directors and majority shareholders.

The defendants take the position that, since there was no contractual commitment by the Cornell Company to do business with FTG at all, let alone for any particular period of time, it follows that The Cornell Company, and the individual Cornells, regardless of their positions in the corporate structure of FTG, had the right to terminate the relationship between the two corporations. Defendants’ brief is unusual in that it cites not a single authority in support of their position. Defendants do assure us, however, that their position is “Hornbook Law.”

There are certain practical difficulties which are inherent in plaintiff’s prayer for an accounting. Since there was no contract requiring Cornell Company to pay any particular amount to FTG, and the amounts that were paid seemed to have been more or less arbitrarily arrived at, we see no basis upon which the amount of the supposed continuing obligation could be computed. Plaintiff suggests that the amount could be based upon the pattern established in the past, but this seems to us to beg the question. Similarly, we can think of no way to determine how long this supposed obligation of The Cornell Company would continue.

The Master’s report concluded that,

“Since F.T.G. had no legal or equitable right to continuation of the business relationship with Cornell Co., the fiduciary duty of the directors should not extend to attempting to perpetuate and keep the arrangement in force.”

We are not so sure that the duty of the defendants was delineated entirely by what FTG had a contractual right to demand. The duty of officers, directors and majority shareholders can certainly go beyond the enforcement of the strict contractual rights of the corporate entity, and extend to the furtherance of the corporate interests generally. Accordingly, if the real controversy in this case were between the two corporate entities, the case would be a more difficult one than it actually turns out to be. However, we believe that the real controversy is not between the corporate entities at all, but is, rather, one between The Cornell Company on the one hand, and the plaintiff on the other, as indicated by the Master:

“Furthermore, stripping the matter of all externalities and.considering the fundamental aspects of the transaction, it seems clear that plaintiff was simply an employee of Cornell Co. and the loose business arrangement in conjunction with his ownership of stock in F. T. G. was merely a device for giving plaintiff an opportunity to obtain financial profit with a tax saving. Since defendants had complete right to terminate plaintiff’s employment, which was at will, defendants should ipso facto be permitted to terminate the entire arrangement without liability of any kind.”

We think this case is governed by the rule that, where the interests of creditors and third parties are not involved, the Court can disregard the corporate entity in order to adjudicate what is in reality only a dispute between the individual members. See Tilley v. Shippee, 12 Ill2d 616, 623, 147 NE2d 347 (1958):

“. . . (T)he trial court, in the exercise of its equitable powers, can penetrate behind the screen of a corporate entity or other forms of business in order to apply the equitable maxim that equity will look through the forms to the substance of a transaction in order to ascertain the relationship of the parties.”

See also Carrillo v. O’Hara, 400 Ill 518, 530, 81 NE2d 513 (1948); Chicago, M. & St. P. Ry. Co. v. Minneapolis Civic & C. Ass’n, 247 US 490, 62 L Ed 1229, 38 S Ct 553, 557 (1917); Cleveland-Cliffs Iron Co. v. Arctic Iron Co., 261 F 15, 17 (6th Cir 1919); Wise Realty Co. v. Stewart, 169 Cal 176, 185, 146 P 534, 538 (1915); Conway v. Citrus Belt Land Co., 94 Cal App 533, 271 P 525, 527 (1928) ; Kay v. Key West Development Co. (Fla), 72 So2d 786, 788 (1954); Siegel v. Ribak, 43 Misc2d 7, 249 NYS2d 903, 909 (1964); Modlin v. Licht, 224 App Div 614, 231 NYS 265, 266 (1928); 1 Fletcher, Cyclopedia of Corporations, § 46 (1963 Rev Vol).

In the instant case, the corporate entity known as FTG has no real stake in the controversy. There are no creditors and no third parties involved. The corporate form was used by the plaintiff and The Cornell Company simply as a device to allow the plaintiff a kind of compensation which would be subject to a lesser Federal tax than ordinary income. Under these circumstances, in the light of the foregoing authorities, we believe it would be naive to attempt a resolution of this case in terms of the rules which ordinarily govern the relationships of officers, directors and majority shareholders to their corporations and minority shareholders. Such considerations are simply not involved in this case.

In fact, then, plaintiff was working for The Cornell Company both before and after the “activation” of FTG. We believe the undisputed evidence makes it clear that FTG was simply the alter ego of The Cornell Company, and, accordingly, the legal fiction of its distinct corporate existence may be disregarded. See 18 CJS, Corporations, § 7(e), p 382; 18 Am Jur2d, Corporations, §17, p 565; 13 ILP, Corporations, §§3-4, pp 263-267; Dregne v. Five Cent Cab Co., 381 Ill 594, 602-603, 46 NE2d 386 (1943). The real parties in interest are The Cornell Company and the plaintiff, and the ultimate question is whether The Cornell Company had the right to terminate plaintiff’s employment. On the undisputed facts, it clearly did. His employment was terminable at will, and it was not necessary that cause for his discharge be shown. We believe that the decree of the lower court is correct, and, accordingly, it will be affirmed.

Judgment affirmed.

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


source: Caselaw Access Project

license: Public Domain

text:
    Edward Burgh, Plaintiff-Appellee, v. Crane Construction Company, Inc., a Corporation, Defendant-Appellant.
    Gen. No. 52,261.
    First District.
    November 14, 1968.

      Querrey, Harrow, Gulanick & Kennedy, of Chicago (John T. Kennedy and Joseph Harrow, of counsel), for appellant.
    Robert J. Hillman, of Chicago (Harry G. Fins and Sidney Z. Karasik, of counsel), for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court.

This is an appeal from a jury verdict rendered in favor of the plaintiff, Edward Burgh against the defendant, Crane Construction Company, Inc., a corporation. The action was based upon violations of the Structural Work Act (Ill Rev Stats 1959, c 48, § 60 et seq.).

In November, 1960, the Executive House, a hotel in Chicago, undertook certain improvements. They hired the defendant construction company and the defendant in turn hired a subcontractor which employed the plaintiff. The plaintiff’s place of work was on the 39th floor of the building where he was engaged in installing a terrace deck. The plaintiff reached his place of work by means of an outside hoist which consisted of a cage operating within an open frame tower. The permit granted by the City of Chicago for the use of the hoist prohibited passengers, but it was the practice of the defendant to use the hoist for the transportation of both workmen and materials. The cage itself was enclosed and had a door at the entrance, but there were no gates or doors at the openings of the shaft at each floor; there was simply a bar across the shaft but the bar was a part of the frame structure and could not be removed or operated as a gate. The roof on the 39th floor had a substantial overhang and a person standing on that floor could not see the building above him because of the overhanging roof.

The hoist or car was operated by an engineer on the 6th floor of the building and a man rode the car as operator, communicating with the engineer by a two-way radio. While the hoist ran above the 39th floor where the plaintiff worked, there was no warning sign to that effect and the plaintiff was never told that the hoist ran above the 39th floor, nor did he know that fact.

In practice when a workman wanted to communicate with the operator of the hoist he would tap on the piping of the structure with some object, thereby attracting the operator’s attention. There was no bell arrangement to signal the operator of the hoist.

The defendant claimed that there was a telephone mounted on the wall of the 39th floor which provided a direct connection with the engineer operating the hoist. Defendant’s superintendent testified that he had never seen the telephone used and did not know if any of the workmen knew of the existence of the telephone. The plaintiff testified that no one informed him of the telephone and that he never saw the phone. The defendant offered certain photographs, taken on December 12th, showing the telephone but admitted that in photographs taken six days prior the telephone does not appear. In answer to an interrogatory, the president of the defendant said under oath that there was no signal system between any floor and the engineer operating the hoist. This answer was subsequently amended to indicate that there was a telephone on the 39th floor, but the matter remained in dispute and, as we shall see, the jury found against the defendant on the issue.

The plaintiff had only worked at this job a few days prior to Monday, November 21, 1960. On that day, some time after arriving on the 39th floor, he went to the hoist and tapped on the pipe to attract the attention of the operator. When the hoist did not come he looked down into the shaft and was struck on the back of the head by the descending hoist, causing severe injuries.

This action was brought alleging that the hoist was constructed or placed in an unsafe and improper manner and that the system of communications was not adequate. The case was tried to a jury on those issues and the jury rendered a verdict in favor of the plaintiff in the sum of $65,500. Plaintiff had entered into a covenant not to sue other defendants and had received $3,000; as a result the trial court entered judgment for $62,500.

The defendant brings the case to this Court urging that there was no defect in the hoist or in the communications system and, therefore, no violation of the Structural Work Act; thajb various instructions given by the trial court were incorrect; and, that plaintiff’s counsel was guilty of improper argument.

Section 1 of the Structural Work Act (Ill Rev Stats 1959, c 48, § 60) provides in part:

“. . . (A) 11 scaffolds, hoists . . . erected or constructed by any person, firm or corporation in this State . . . shall be erected and constructed, in a safe, suitable and proper manner, and shall be so erected and constructed, placed and operated as to give proper and adequate protection to the life and limb of any person or persons employed or engaged thereon, or passing under, or by the same, and in such manner as to prevent the falling of any material that may be used or deposited thereon.”

The defendant argues that there was no defect in the hoist and that the hoist was operating in the manner in which it was intended to operate. The defendant further claims that the only cause of the injury was the act of the plaintiff in inserting his head into the shaft and that to affirm the judgment in this case would be to create absolute liability under the Structural Work Act.

We agree with the defendant that the Structural Work Act does not impose absolute liability. In an exhaustive opinion our Supreme Court considered the history of the Structural Work Act in Gannon v. Chicago, M., St. P. & P. Ry. Co., 22 Ill2d 305, 317 et seq., 175 NE2d 785 (1961). In that case the Court pointed out that the Structural Work Act was adopted in 1907, some four years before the Rlinois Workmen’s Compensation Act. The Structural Work Act was adopted to give protection to workmen engaged in extrahazardous occupations, and one of the essential purposes of the Act was to remove contributory negligence as a defense. The feature of absolute liability did not come into the law until 1911, upon the adoption of the Workmen’s Compensation Act. That feature was never incorporated into the Structural Work Act and did not exist at the time that Act was passed. Therefore, we agree that the Structural Work Act does not provide for absolute liability and there must be some violation of the Act for the plaintiff to recover.

In this case, however, it seems clear to us that there were violations of the Structural Work Act and the plaintiff is entitled to recover. In the case of Louis v. Barenfanger, 81 Ill App2d 104, 226 NE2d 85 (1967), affirmed in 39 Ill2d 445, 236 NE2d 724 (1968), the Court said at page 109, “Obviously the failure to properly place a scaffold or support is as much an actionable violation of the Structural Work Act as is the failure to properly construct, erect or operate a scaffold or mechanical contrivance.” The goal of the Structural Work Act is to provide workmen in these extrahazardous occupations with a safe place to work, Bounougias v. Republic Steel Corp., 77 F2d 726. The whole body of law in this field indicates a tendency on the part of the courts to provide a liberal construction of the statute with this end in mind.

It is obvious to us that one must examine the entire picture. One cannot isolate the hoist and ignore an inadequate communication system or the circumstances under which the plaintiff was working and the information he was given, which in this case was very meager.

The Structural Work Act requires a safe, suitable and proper scaffold. It does not specifically say what would constitute such a scaffold because circumstances vary with each case. That question is necessarily left to the jury, Dinschel v. United States Gypsum Co., 83 Ill App2d 466, 477, 228 NE2d 106 (1967). In this case the safety of the structure became, under all of the evidence, a question of fact for the jury. The jury found in favor of the plaintiff and their decision is based upon substantial evidence. Under those circumstances we have no authority to overturn their judgment.

Section 7a of the Structural Work Act (Ill Rev Stats 1959, c 48, § 67) provides in part as follows:

“If elevating machines or hoisting apparatus . . . are used in the construction, alteration or removal of any building or other structure, a complete and adequate system of communication by means of signals shall be provided and maintained ... in order that prompt and effective communication may be had at all times between the operator of engine or motive power of such elevating machine or hoisting apparatus, and the employes or persons engaged thereon or in using or operating the same.”

In this case the only system of communication which the plaintiff knew about was extremely crude. In this day and age it is obvious that the defendant could have had a better means of communication than simply rapping on a pipe to summon the elevator. There was sufficient evidence from which the jury could properly find that knocking on the pipe was the only means of communication. There is a factual dispute as to whether or not a telephone had ever been installed at the time of the accident and, in his original answer to an interrogatory, the defendant admitted under oath that there was no such means of communication. While he subsequently changed his story, the jury had the right under the evidence to believe the first answer and not the second.

In short, provisions for communication were less than adequate in this case. In the construction of the hoist itself the defendant could have provided a gate on the opening to the shaft which would have prevented the accident. From these facts the jury could reasonably conclude that there was a violation of both sections of the Act in question. Gundich v. Emerson-Comstock Co., 21 Ill2d 117, 129-131, 171 NE2d 60 (1961).

The defendant next complains that the court erred in instructing the jury since the court gave instructions on both of the plaintiff’s theories of violation of the Act. However, as we have indicated there was evidence of violations of both sections of the Act and, therefore, it was proper to instruct the jury on both of those questions. Indeed, a portion of some of these instructions of which the defendant now complains were offered by the defendant himself and, of course, a person cannot complain if the court gives his own instructions. People v. Riley, 31 Ill2d 490, 495-496, 202 NE2d 531 (1964); Sola v. City of Chicago, 82 Ill App2d 266, 275, 227 NE2d 102 (1967).

Finally, defendant complains of improper argument by plaintiff’s counsel. The purpose of a closing argument is to draw together all of the facts and present the theories of the litigants so that the jury may make a proper decision. While it is true that counsel should avoid improper comment, they are to be permitted sufficient leeway within the evidence already presented so as to properly present their theories. Hopwood v. Thomas Hoist Co., 71 Ill App2d 434, 443-444, 219 NE2d 76 (1966).

We have examined the entire record and find that the trial judge properly controlled the proceedings, properly instructed the jury and that there was no conduct or comment on the part of counsel prejudicial to either side.

In conclusion, a word about the case as a whole. We are not to be understood as concluding that the Illinois Structural Work Act imposes absolute liability. Indeed, in our view, it does not. Under the facts of this case the jury would properly find that there were violations of the Structural Work Act causing injury to this plaintiff. They did make those findings and we are not at liberty to substitute our judgment for theirs.

Judgment affirmed.

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


author: JUSTICE ABEAHAMSON.

text:
    In the Matter of the Application of the County Collector for Judgment and Sale Against Lands and Lots Returned Delinquent for Nonpayment of General Taxes for the Year 1962 and Prior Years. Mattie Coleman Burleson, Petitioner-Appellant, v. Geraldine D. Hoffmann, Respondent-Appellee.
    Gen. No. 52,407.
    First District.
    November 14, 1968.
    Theodore R. Sherwin, of Chicago (Sherwin & Sherwin, of counsel), for appellant; Blair and Buyer, of Chicago, for appellee.
   Opinion by

JUSTICE ABEAHAMSON.

Not to be published in full.


text:
    Allan R. Koretz, Plaintiff-Appellant, v. All American Life and Casualty Company, Defendant-Appellee.
    Gen. No. 52,431.
    First District.
    November 14, 1968.

      James R. Mitchell and John W. Damisch, of Chicago (Jurco, Damisch & Sinson, of counsel), for appellant.
    Petit, Olin, Fazio and Safeblade, of Chicago (Edward Atlas, of counsel), for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court.

The defendant is a corporation engaged in the business of issuing general life and casualty insurance policies. In the Fall of 1962, its predecessor company undertook to issue additional shares of corporate stock which were to be distributed, not to the public generally, but only to those persons whose interests were, in the judgment of the company, conducive to the growth and development of the company. The prospectus issued, at that time, stated the purpose for which the stock was to be issued and provided that the offering was limited to shares subscribed to by April 1, 1963. Pursuant to the prospectus the company solicited subscriptions for 100,000 shares at $4 per share.

In November, 1962, plaintiff was introduced to Richard T. Christoph, a director of the defendant company, by one, Telpner, a mutual friend. Telpner told Christoph that he believed the plaintiff “would be good in the life insurance business” and that plaintiff was interested in subscribing to some of the stock then being offered by the defendant. Christoph told Telpner that it looked like the stock was going to be oversubscribed; that there was no assurance that he could let plaintiff have any of the stock but that he would consider it. Sometime in December, 1962, Telpner went to Christoph’s office. Plaintiff testified that he was also present at this meeting ; however, Christoph denied that plaintiff was present and testified that only Telpner was present. In either case, during the course of the meeting, Telpner deposited with Christoph plaintiff’s check for $4,000, together with a subscription agreement, signed by plaintiff, wherein plaintiff offered to purchase 1,000 shares at $4 per share.

Paragraph one of the agreement provided, in part, that:

“Upon receipt of this Agreement . . . , the Company will acknowledge said receipt within fifteen (15) days from the date hereof, and issue its Interim Receipt to the subscriber, subject to provisions of paragraph five (5) hereof.”

Paragraph four, in part, added:

“Deposit of the funds paid in by the subscriber into the Company’s Escrow Account . . . shall constitute acceptance of this agreement by the Company.”

and paragraph five partially provided:

“. . . Company shall have the right, at its discretion, at the home office, until delivery of the interim receipt, to reject any subscriptions by returning to the subscriber the payment tendered with this subscription.”

On January 3, 1963, the defendant forwarded an interim receipt which acknowledged receipt of the plaintiff’s subscription agreement and check; advised plaintiff that the offering may be kept open to November, 1963, awaiting approval of the Director of Insurance as provided in the agreement and also in the prospectus; and, that “proper certificates of shares will be issued in accordance with your Subscription Agreement at that time.” The company retained plaintiff’s check but did not cash it and did not deposit it in the escrow account. In April of 1963, when the stock was in fact oversubscribed, the plaintiff’s check was returned to Telpner. The plaintiff was not informed that his check had been returned until October, 1963, when he had a conversation again with Christoph. During his conversation, Christoph testified that he also told the plaintiff that the company would let him subscribe for 100 shares of the stock at the same price of $4, even though the stock was then selling at $13.00 per share “to settle any differences.” Plaintiff did subscribe for the 100 shares of stock, paid $400 and wrote a letter to Christoph saying in part, “I am indeed glad that we have been able to get together in view of the preceding circumstances.”

The plaintiff brings this action to recover the sum of $10,000, which he claims to be the fair value of the stock which he never obtained under the subscription agreement. The trial court found that there was no agreement which bound the parties, and that, even if there had been an agreement, the later understanding between plaintiff and Christoph operated as an accord and satisfaction of all claims. Plaintiff appeals to this Court urging that there was a firm agreement accepted by the defendant and that defendant had not proved the affirmative defense of accord and satisfaction.

If the trial court was correct in its conclusion that an accord and satisfaction was proved in this case, then it is unnecessary to consider whether or not the plaintiff and defendant entered into a binding agreement for the purchase of stock. Proving a subsequent accord and satisfaction would be a bar to his recovery. Leafgreen v. Telford, 169 Ill App 582, 587-589 (1912).

In order to constitute an accord and satisfaction there must exist a bona fide dispute, Fichter v. Milk Wagon Drivers’ Union, Local 753, 382 Ill 91, 99, 46 NE 2d 921 (1943), cert den 319 US 758, 87 L Ed 1710, 63 5 Ct 1177; the sum in dispute must be unliquidated, A. & H. Lithoprint v. Bernard Dunn Advertising, 82 Ill App 2d 409, 412, 226 NE2d 483 (1967); consideration must be present; however, payment by the debtor of a lesser sum as a compromise of a disputed claim may be deemed proper consideration, Smyth v. Kaspar American State Bank, 9 Ill2d 27, 42, 136 NE2d 796 (1956); A. & H. Lithoprint v. Bernard Dunn Advertising, supra, page 412; a meeting of the minds with intent to compromise is essential but may be gleaned from the words and acts of the parties, Brubaker v. United States, 342 F2d 655, 661 (7th Cir 1965); and, the accord must be executed, In re Estate of Cunningham, 311 Ill 311, 316, 142 NE 740 (1924); Corydon & Ohlrich, Inc. v. Kusper Bros. Co., 345 Ill App 224, 233, 102 NE2d 672 (1951).

The degree of proof necessary to establish an accord and satisfaction at first impression, seems to be in a state of flux. In the case of Corydon & Ohlrich, Inc., supra, at page 232, it was held that it is upon the one asserting the affirmative defense, accord and satisfaction, to prove the same by a preponderance of the evidence. Appeal in this case was denied by the Supreme Court, see, 411 Ill 629 (March Term, 1952). In the case of Canton Union Coal Co. v. Parlin & Orendorff Co., 117 Ill App 622, 625 (1905), affd 215 Ill 244, 74 NE 143 (1905) the Appellate Court stated that:

“. . . (T)o establish this defense (accord and satisfaction) the proof must be clear and unequivocal that the observance of the condition (a condition attached to an offer) was insisted upon, and must not admit of the inference that the debtor intended that his creditor might keep the money tendered, in case he did not assent to the condition upon which it was offered.” (Emphasis added.)

This proposition, based upon law from another jurisdiction, was not referred to or expressly adopted by the Supreme Court upon affirmance of the Appellate Court decision.

We are of the opinion that the proposition cited is still the law, that is, whenever an offer to settle has a condition attached, the observance of that condition must be proved by clear and unequivocal evidence. However, this does not mean that each and every element necessary to constitute an accord and satisfaction is under the same quantum of proof. An accord and satisfaction is nothing more than a contract and should be construed by the rules of law pertaining to contracts. Brubaker v. United States, supra, 661; 6 Corbin on Contracts (1962), § 1277, p 117.

The plaintiff contends that the defendant failed to prove by competent evidence that there was an oral release and satisfaction of the subscription agreement but, assuming there was competent evidence, then, the defendant (1) failed to prove an oral release or satisfaction of the defendant’s obligation under the agreement by clear and convincing proof and (2) defendant’s evidence of oral release and satisfaction was not admissible under the parol evidence rule to alter, amend, vary or change the terms of the written stock subscription.

The plaintiff bases his argument upon the incorrect view that the stock subscription was rescinded. His citations that the burden of proof must be clear and convincing and that parol evidence may not be used to vary the terms of an unambiguous written instrument are all correct, if such was the case before us. However, the law of rescission of written contracts and the proof necessary to sustain a rescission are not in point. We are here dealing with an alleged accord and satisfaction which is in lieu of any rights arising out of the subscription agreement.

The law relative to a rescission of a written contract is not necessarily the same as that applied to an accord and satisfaction. Where a rescission of a contract takes place, the rights of the parties under that contract are vitiated or invalidated, whereas, an accord and satisfaction is the creation of new rights without regard to any former rights that might have accrued. Rescission relates to contractual rights whereas accord and satisfaction can relate to either contractual rights or rights arising out of tortious conduct. While the effect, practically speaking, may be the same, (that is, prevent recovery) still a rescission erases all rights under an agreement while an accord and satisfaction admits, to an extent, that the agreement is valid but, because of the subsequent contract, the original agreement cannot be enforced.

In the present case, the trial judge was of the opinion that an accord and satisfaction was alleged and proved. He, as the trier of fact, had an opportunity to view the witnesses and attest to their veracity and his decision, unless manifestly against the evidence, should not be disturbed, Gable v. Village of Hinsdale, 87 Ill App 2d 123, 127, 128, 230 NE2d 706 (1967). Where there is sufficient evidence to support his finding we are not disposed to disturb it. Stahelin v. Board of Education, School Dist. No. 4 DuPage County, 87 Ill App2d 28, 43, 230 NE2d 465 (1967). The evidence disclosed that there was a dispute and the defendant, through Christoph, made an offer to sell plaintiff certain stock “to settle any differences.” The stock was obtained by the plaintiff at a price that was unusually low considering the market value at the time. Also to be considered is plaintiff’s statement in his letter of transmittal of his money for the payment of the stock: “I am indeed glad that we have been able to get together in view of the preceding circumstances.”

We feel that all of the elements necessary to establish an accord and satisfaction were present in this case and that the trial court ruled correctly. Having reached this conclusion, there is no need to decide the questions raised on appeal concerning the rights, if any, which the plaintiff had under the stock subscription agreement.

Judgment affirmed.

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


text:
    Linda L. Hokin, Plaintiff-Counterdefendant-Appellant, v. John J. Hokin, Defendant-Appellee-Cross Appellant.
    Gen. Nos. 52,475, 52,567. (Consolidated.)
    First District.
    November 14, 1968.
    Rehearing denied December 12, 1968.

      Lissner, Rothenberg, Reif and Barth, of Chicago (Errol Zavett, of counsel), and Thomson, Thomson & Mirza, of Bloomington (Jerome Mirza, of counsel), for appellant.
    Jerome Berkson and Theodore R. Sherwin, of Chicago (Sherwin & Sherwin, of counsel), for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court.

This appeal and cross-appeal arise from a divorce proceeding between Linda L. Hokin, plaintiff, and John J. Hokin, defendant, and were consolidated for hearing by this court.

On March 15, 1966, plaintiff, through her attorneys, Joseph H. and Norman Becker (attorney-appellees), filed a complaint for divorce charging cruelty on the part of the defendant. On March 18, 1966, plaintiff’s attorneys moved for temporary alimony, custody and attorneys’ fees. This motion was continued eleven times until June 24, 1966. In the meantime, while the motion was pending, the defendant moved to strike the complaint and an answer thereto was filed by the plaintiff. The trial court denied the motion to strike on June 27, 1966. On the same day, the plaintiff filed an amended complaint based upon the same grounds but changing one of the dates of the alleged cruelty and joining additional parties as defendants. McDonnell and McDonnell (attorney-appellees), entered their appearance as additional counsel for the plaintiff. Thereafter, defendant filed a motion to strike the amended complaint which was answered by the plaintiff. On November 9, 1966, after notice to all of the attorneys of record, the plaintiff moved the court to substitute Harold Friedman and Melvin Weinstein as her attorneys in place of attorney-appellees. On the same date the following order was entered:

“It is Ordered, Adjudged & Decreed:
“1) That leave be and is granted Harold E. Friedman and Melvin A. Weinstein to substitute their appearance as attorneys for Linda L. Hokin, plaintiff in lieu of McDonnell & McDonnell — Joseph H. & Norman Becker and the Clerk of this Court (is) to strike the appearance of McDonnell & McDonnell & Joseph H. & Norman Becker as attorneys for plaintiff Linda L. Hokin.
“2) That McDonnell & McDonnell and Joseph H. & Norman Becker’s rights if any to attorney fees against the defendant is reserved to the hearing on said cause, that upon the hearing of said cause the amount of attorney’s fees to be paid to McDonnell & McDonnell & Joseph H. & Norman Becker if any by defendant and the amount of attorney fees to be paid to Harold E. Friedman and Melvin A. Weinstein if any by defendant shall be determined by the court.”

The record next discloses that on February 2, 1967, the defendant filed his answer to the amended complaint and on March 13, 1967, the plaintiff filed a motion to dismiss her complaint, after notice to all attorneys, (including the attorney-appellees), claiming that she desired to eff ect a reconciliation. While this motion was pending the defendant moved to file a counterclaim for divorce charging desertion (which was to have commenced on March 7, 1966), and the same was filed on March 28, 1967. The next day, attorney-appellees procured the following order:

“Upon motion of the law firm of MCDONNELL & MCDONNELL and attorneys JOSEPH H. BECKER and NORMAN BECKER, and pursuant to the order of this Court entered on November 9,1966:
“IT IS HEREBY ORDERED that the question of the amount of the attorney’s fees to be paid by the defendant to the law firm of McDONNELL and MCDONNELL and attorneys JOSEPH H. BECKER and NORMAN BECKER for services rendered by said attorneys for and in behalf of the plaintiff in this cause, be and the same is hereby set for hearing before this Court on the 8th day of May, 1967, at the hour of 9:30 o’clock A. M., without further notice.”

On April 3, 1967, the firm of Lissner, Rothenberg, Reif and Barth were granted leave to file their appearance as additional counsel for the plaintiff. Thereafter the plaintiff filed her answer to the defendant’s counterclaim in which she set forth two affirmative defenses, one being condonation and the other was as follows:

“. . . 1) That the Counter Defendant is informed and believes that the Counter Plaintiff has committed adultery with one Marcia McNaughton on one or more of the following occasions: March 2, 1967; March 3, 1967; March 4, 1967; March 13, 1967; March 14, 1967; March 15, 1967; March 16, 1967; March 17, 1967; March 18, 1967; March 19, 1967 at one or more of the following places, 55 Green Bay Road, Highland Park, Illinois; 1350 N. Lake Shore Drive, Chicago, Blinois; Castaway Hotel, Miami Beach, Florida and at other times and places.

to which the defendant filed a reply.

On May 8, 1967, the date of trial, the court allowed the plaintiff’s motion to dismiss her amended complaint and also, prior to a hearing on the counterclaim, entered the following order:

“Upon motion of Attorneys JOSEPH H. BECKER, AND NORMAN BECKER and the law firm of MCDONNELL & McDONNELL, and pursuant to order of this Court entered on November 9, 1966, and further pursuant to order of this Court entered on March 28, 1967, setting this cause for trial on the 8th day of May, 1967, at the hour of 9:30 o’clock a. m.; and it appearing that the claim of said attorneys is predicated and based upon legal services rendered by them for and in behalf of the plaintiff in this cause, the claim of said attorneys being as against the defendant herein; and it further appearing to the Court that this cause is set for trial upon the merits on May 8, 1967, at the hour of 9:30 a. m.:
“IT IS ORDERED that the question of said attorneys’ fees to be paid by the defendant to said attorneys for their services rendered for and in behalf of the plaintiff in this cause, will remain open for consideration by this Court prior to the entry of a decree, and it is ordered further that no decree shall be entered herein unless and until said attorneys have received notice from the attorneys for the parties to set for hearing the question of said fees and the entry of an appropriate order thereon prior to the entry of any such decree.”

On May 11, 1967, a decree of divorce was entered on the counterclaim in favor of the defendant on grounds of desertion. The decree provided that the plaintiff be forever barred from alimony or any claim whatsoever against the defendant; that jurisdiction be retained to determine the question of child custody and support to be heard upon a date certain; that temporary custody and support be granted to plaintiff with certain visitation privileges to the defendant; and set the amount of appeal bond. The decree did not retain jurisdiction for determination of attorneys’ fees, nor was any notice given to the attorney-appellees prior to the entry of the same.

On June 7, 1967, the plaintiff filed her notice of appeal from the decree and thereafter on July 27, 1967, the former attorneys of the plaintiff, attorney-appellees, moved the court to vacate the decree. The record does not disclose any written pleading being filed on this motion. The motion was allowed and the following order was entered:

“This matter coming on to be heard upon the motion of Attorneys Joseph H. Becker, Norman Becker and McDonnell & McDonnell former attorneys for plaintiff to vacate decree entered in this cause on May 11th, 1967 and it appearing to the Court that said decree was presented by the defendant to the Court and entered on said 11th day of May, 1967 contrary to order entered by this Court on May 8th, 1967 requiring defendant to give notice to said attorneys of the presentation of decree so that the question of their fees might be determined. It is ordered that said decree is hereby vacated and set aside. It is further ordered that a hearing as to such fees is set for August 23rd, 1967 at 1 o’clock P. M. without further notice.”

On July 31, 1967, the date set for hearing on the permanent custody of the child of the parties, the court on its own motion and after the decree had been vacated entered the following order:

“This cause coming on to be heard upon the contested trial call of this court; and a decree for divorce having been entered herein on May 11, 1967, after a contested hearing; and the court having continued this matter for a determination on the question of permanent custody of the minor child of the parties until this date and the Court has jurisdiction of the parties and of the subject matter hereto.
“UPON THE COURT’S OWN MOTION, IT IS ORDERED:
“1. That the counter plaintiff, JOHN J. HOKIN, file with this court within 15 days of this date, a Bill of Particulars under oath, stating how, when, why and in what manner the counter defendant, Linda L. Hokin, is not fit to be awarded the permanent custody of the minor child of the parties.
“2. That within 15 days thereafter, the counter defendant, Linda L. Hokin, shall file with this court, her answer, under oath, to the Bill of Particulars filed by the counter plaintiff, together with a Bill of Particulars, under oath, stating how, when, why and in what manner the counter plaintiff, John J. Hokin, is not fit to be awarded the permanent custody of the minor child of the parties.
“3. That within 10 days thereafter, the counter plaintiff, John J. Hokin, shall file with this court, his answer, under oath, to the Bill of Particulars filed by the counter defendant.
“4. That thereafter, the counter plaintiff, John J. Hokin, shall obtain evidence depositions encompassing all of the proof to be offered in support of the allegations made by him.
“5. That thereafter, the counter defendant, Linda L. Hokin, shall obtain evidence depositions encompassing all of the proof to be offered in support of the allegations made by her.
“6. That the Court Service Division of the Cook County Department of Public Aid make a full and complete investigation of the parties hereto for the purpose of determining the awarding of the permanent custody of the minor child of the parties in accordance with the best interests and welfare of the said minor child and to report same to the court forthwith.
“7. That there is no just reason to delay the enforcement or appeal from this order.”

and on August 23, 1967, entered the following order:

“This matter coming on to be heard upon the motion of Attorneys Joseph and Norman Becker and the law firm of McDonnell & McDonnell for an order upon defendant to pay said attorneys’ fees for services rendered for and in behalf of plaintiff in this cause and it appearing to the Court that that (sic) the question of fees has heretofore been reserved for determination under prior orders of this Court, and it appearing to the Court that said services were rendered and that plaintiff is unable to pay attorneys’ fees but that defendant is well able to do so, and the Court having heard testimony from said attorneys as to the value of their services and having considered the draft agreement heretofore prepared by the attorney for defendant where said services were fixed at $7,500.00 and the Court being fully advised,
“IT IS ORDERED that defendant pay to said attorneys as their attorneys’ fees the sum of $7,500.00.”

On August 24, 1967, the defendant filed his notice of appeal from the orders of July 27, 1967, July 31, 1967 and August 23, 1967.

At the hearing on the counterclaim the defendant was called as an adverse witness during the defense of the case. The plaintiff commenced eliciting proof concerning her affirmative defense of adultery when, without objection or motion, the court stated to the attorneys that paragraph 2 of the answer to the counterclaim would be stricken. In objecting, counsel for the plaintiff apprised the court that the charge of adultery by the defendant, if proved to have taken place during the period of desertion claimed by the defendant, would constitute the affirmative defense of recrimination; however, the court stated that the defense would remain stricken and all questions and answers pertaining thereto would be stricken from the record. Plaintiff attempted to make an offer of proof on the subject but the offer was denied. No explanation is contained in the record as to why the court on its own motion struck the defense and forbid the plaintiff from offering any further proof on the matter.

In the early case of Bast v. Bast, 82 Ill 584, 585 (1876), the Court stated that desertion on the part of one spouse could not exonerate the more serious charge of adultery on the part of the other spouse. Nor could drunkenness or cruelty constitute a sufficient recriminatory defense to the charge of adultery. In Decker v. Decker, 193 Ill 285, 294, 61 NE 1108 (1901), it was held that a charge of adultery in the answer, if proved, would be a bar to a decree of divorce. In Zimmerman v. Zimmerman, 242 Ill 552, 558, 90 NE 192 (1909), the court stated that if it appears at trial, whether set up by pleadings or not, that the party seeking the divorce on grounds of drunkenness and extreme and repeated cruelty has been guilty of adultery the divorce will not be granted. See also, Peck v. Peck, 16 Ill2d 268, 279, 157 NE2d 249 (1959); Kovac v. Kovac, 26 Ill App2d 29, 54, 167 NE2d 281 (1960).

In the case at bar the plaintiff was foreclosed from introducing evidence of recrimination when the court ruled as it did on her affirmative defense. As was stated in Gordon v. Gordon, 141 Ill 160, 30 NE 446 (1892), at page 163:

. . (U)pon what principle of justice can a ruling be sustained which denied a defendant all right to be heard in defense of the case made in the bill? If the court had the power to strike out the answer, it necessarily had the power to refuse to hear any evidence the defendant might offer in answer to the bill or in support of the matters set up in the answer. A rule of this character once established in divorce cases, would not, in our judgment, have a beneficial effect upon the rights of parties, and in many cases the tendency of the rule would be to bring the law into disrepute. Under our practice, divorces are granted and marriage contracts set aside quite as readily as could be desired, if proper regard is given to the well-being of society; but should a defendant be denied the right of all defense for nonpayment of alimony, in many cases, doubtless, divorces would be granted and marriage contracts set aside upon false or insufficient evidence, for the reason the defendant was denied the right to expose a false or fictitious case. It is true that the defendant’s counsel was permitted to cross-examine complainant’s witnesses, but this did not cure the error. When the answer was stricken out the foundation for the defendant’s defense was gone. . . .”

We are of the opinion that the order striking the affirmative defense as well as all questions and answers thereto and entering judgment against the plaintiff was without authority of law.

The defendant argues that the testimony attempted to be introduced against him took place after the time when the one-year desertion period had run and, therefore, was inadmissible. We need not respond to such claim because three of the dates alleged in the affirmative defense took place prior to March 7, 1967, the date alleged by the defendant to be the end of the one-year desertion period and after the court was made aware of this fact it still adhered to its ruling.

We conclude that it was reversible error for the court not to allow the plaintiff to introduce proof on the issue of recrimination set forth in her affirmative defense of adultery.

The defendant in his cross appeal contends that the trial court erred in vacating the decree of divorce because it lacked jurisdiction. The jurisdiction is challenged on two grounds, (1) 30 days had elapsed and (2) notice of appeal had been filed. It is further urged that the order granting the former attorneys of the plaintiff the sum of $7,500 had no basis after the plaintiff voluntarily dismissed her complaint; that it was not predicated upon any pleading, petition or proof of any kind and their claim was not made by the plaintiff or on her behalf but by the attorneys for themselves personally. The attorney-appellees counter these charges by claiming that the decree of divorce entered on May 11, 1967, was void because the court ordered the question of their attorneys’ fees to be resolved prior to the entry of any decree and also that the award allowed was based upon the court’s discretion which was supported by the evidence. The attorney-appellees further argue that section 15 of the Divorce Act (111 Rev Stats 1965, c 40, § 16) sanctions what the court did in this case.

Section 15 allows the court to reserve the question of attorneys’ fees until final hearing of the case, which was done in this case by its order of May 8, 1967. The section further allows the court to make such order with reference thereto as may seem just and equitable regardless of the disposition of the case.

The court may after the entry of a decree of divorce, enter a supplemental decree ordering the payment of attorneys’ fees where the original decree has retained jurisdiction for such purpose. Consequently, a decree is not “final” to matters which are incidental to the divorce proceedings, Bremer v. Bremer, 4 Ill2d 190, 191-192, 122 NE2d 794 (1954). In the present case, we are of the opinion that the order of May 8, 1967, was tantamount, because of its explicit verbiage concerning the reservation of the question of attorneys’ fees to be determined prior to the entry of any decree, to a retention of jurisdiction by the court for such purpose. However, unlike the Bremer case, the attorney-appellees neither filed a written petition for their fees without regard to the decree entered nor did they petition the court to modify or amend the decree but, instead, successfully moved (by what seems to be an oral motion) to vacate the entire decree. (1)

The motion to vacate was objected to because it was made 76 days after the decree was entered and 50 days after the notice of appeal was filed. The attorney-appellees do not claim that their motion should be considered as a petition under section 72 of the Civil Practice Act (Ill Rev Stats 1965, c 110, § 72). They do claim that the decree was void as to them since they did not receive notice prior to its entry as ordered on May 8, 1967. We cannot agree. The cases cited by the appelleeattorneys do not support the position that a decree of divorce may be vacated 76 days after it is entered and 50 days after a notice of appeal from such decree has been filed, in order to allow the court to include attorneys’ fees for past services rendered. The cases do allow the court, where it has retained jurisdiction and a petition is filed for attorney fees, to enter a supplemental order which in no way effects the status of the litigants as far as their rights under the decree are concerned. This was done in Bremer v. Bremer, supra.

The trial court, after the lapse of thirty days, does not retain jurisdiction to vacate its decree of divorce, absent any charge of fraud or proper reason under section 72 of the Civil Practice Act, and such reasons were not asserted in the case at bar. Meyer v. Meyer, 409 Ill 316, 319-321, 99 NE2d 137 (1951); Craaybeek v. Craaybeek, 45 Ill App2d 256, 195 NE2d 738 (1963); Bratkovitch v. Bratkovitch, 34 Ill App2d 122, 124-126, 180 NE2d 716 (1962); Hefner v. Hefner, 338 Ill App 179, 181-182, 86 NE2d 885 (1949).

The jurisdiction of the appellate court attaches upon the filing of a proper notice of appeal. Thereafter, except in certain instances, the cause is beyond the jurisdiction of the trial court to vacate a judgment even within thirty days of its rendition. City of Chicago v. Myers, 37 Ill2d 470, 472, 227 NE2d 760 (1967); Dear v. Dear, 87 Ill App2d 77, 79, 230 NE2d 386 (1967); Watson v. Watson, 335 Ill App 637, 639-642, 82 NE2d 671 (1948). See also, 53 IBJ 30 (Sept 1964).

It was error for the court to vacate the divorce decree and for this reason the orders of July 27, 1967, and August 23,1967, are reversed.

On July 31, 1967, the plaintiff and defendant, along with some 14 witnesses appeared before the court for a hearing on the custody of the minor child of the parties which issue had been set for this day by the court and over which jurisdiction had been retained in the decree of divorce. Instead of hearing the testimony directly or continuing the cause to a future date, the court on its own motion entered the order as set forth above. The plaintiff has expressly waived a reply to the defendants contentions against this order.

It is hard for us to comprehend why a court would not be interested in observing and hearing witnesses testify directly on the issue of the welfare of a minor child prior to determining the permanent custody of such child. We have not been supplied nor have we found any law, be it legislation, case law or court rule, which would allow such procedure when the witnesses are available for examination and cross-examination. Supreme Court rules provide for discovery and evidentiary depositions; however, these are limited to certain purposes and for certain reasons which are not found in the case at bar. The order of July 31,1967, was error.

The decree entered on May 11, 1967, in case No. 52,475 is reversed and the cause is remanded for a new trial. The orders entered on July 27, 1967, July 31, 1967, and August 23,1967, in case No. 52,567 are reversed.

Case No. 52,475 — reversed and remanded with directions. Case No. 52,567 — reversed.

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

       Footnote (1) — It might here be noted that neither the order vacating the decree nor any subsequent order that we have been able to find from a search of the record has ever reinstated the decree of divorce. We presume that such order does exist, but was not requested of the clerk by any of the parties in their praecipes.


author: MR. JUSTICE DAVIS

text:
    Raymond L. Sabath and Century Provision Co., an Illinois Corporation, Plaintiffs-Appellants, v. Morris Handler Co., an Illinois Corporation, Leonard Mansfield, Kenneth Schwartz and Arthur S. Yergin, DefendantsAppellees.
    Gen. No. 52,684.
    First Judicial District.
    November 14, 1968.
    Rehearing denied January 15, 1969.

      Gale L. Marcus, of Chicago, for appellants.
    Hoffman & Davis, of Chicago, for appellees.
   MR. JUSTICE DAVIS

delivered the opinion of the court.

The plaintiffs, Raymond L. Sabath and Century Provision Co., (Century), brought this suit against the defendants, Morris Handler Co. (Handler), and certain officers and directors thereof, to recover for damages alleged to have been sustained by reason of Handler’s failure to obtain a driveway permit, as required by a construction contract. The complaint consisted of three counts: Count I alleged a breach of the written contract; Count n charged negligent and wilful and wanton conduct in the defendants’ failure to obtain the permit and to advise the plaintiffs thereof; and Count HI charged the defendants with fraud or deceit in this respect. The defendants moved to strike Counts I and HI of the complaint and to dismiss Count H. The trial court struck all three counts, as barred by the applicable Statute of Limitations, and dismissed the suit at plaintiffs’ costs, without reaching other defects alleged in the defendants’ motion, which could be corrected by amendments to the complaint.

The relevant facts, for the purposes of this appeal, are that Handler, in 1953, contracted to do certain construction and remodeling work for Century. The contract provided that the work was to be done pursuant to certain plans and specifications, which included the construction of a certain loading dock and driveway on the premises in question; that Handler obtain and pay for all permits required by the work, and that it notify the owner of any conflict with existing laws and regulations.

The work was completed in May of 1954, and Handler was paid at that time. Included among the additional charges submitted by Handler, was “. . . the sum of $500.00, which was paid for driveway permits.” (Emphasis ours.) The plaintiffs continued to use the driveway, without interruption, until about July of 1961, at which time they learned — for the first time — that Handler had not in fact obtained the driveway permit as required by its contract and as it suggested had been done by its additional charge.

In either August or September of 1961, the plaintiffs notified Handler of their discovery in this respect, and Handler immediately took steps to obtain the necessary permit. These steps included an attempt to obtain the permit from the City of Chicago; the filing of a lawsuit against the City upon its refusal to issue such permit, and the obtaining of an order in such proceeding which permitted the continued use of the driveway during the pendency of that lawsuit; the successful prosecution of the suit in the trial court wherein an order was entered directing that a permit issue; the defense of the case on appeal to the Appellate Court by the City of Chicago; and the attempt to have the matter heard by the Supreme Court upon the reversal of the trial court by the Appellate Court (56 Ill App2d 307, 206 NE2d 286).

It was not until October 13, 1965, that the Supreme Court denied Handler’s petition for leave to appeal, and the plaintiffs were finally denied the use of the driveway. The case at bar was then commenced on June 13, 1967.

The defendants assert in their motion that Count I is barred by the 10-year Statute of Limitations (Ill Rev Stats 1967, c 83, par 17), and Counts H and III are both barred by the 5-year Statute (Ill Rev Stats 1967, c 83, par 16).

In Count I of the complaint, the plaintiffs contend, among other things, that the defendants, by their actions in pursuing the legal remedies seeking to obtain the driveway permit, either waived their right to assert the Statute of Limitations or should be estopped to assert such defense.

In our opinion, Handler’s alleged breach of the contract occurred in 1954 when it purported to have completed the contract for the plaintiffs and received payment therefor. Thus, in 1961, when the plaintiffs discovered the breach, there still was ample time, under the applicable Statute of Limitations, to bring the breach of contract action asserted in Count I. But, during this time the defendants responded to the plaintiffs’ demand to remedy their default and, at their own expenses, took the administrative and legal steps necessary in connection with obtaining the driveway permit, and the plaintiffs, at the defendants’ request, halted the steps they had taken with the city to obtain the permit.

The defendants’ acts, in response to the plaintiffs’ discovery of the absence of a driveway permit, certainly manifested a recognition of their failure or default in the duty owed to the plaintiffs under the construction contract. This action also indicated to the plaintiffs that the defendants intended to correct the wrong they had imposed upon them.

The defendants diligently pursued the course necessary toward obtaining the driveway permit. They obtained a temporary order permitting the use of the driveway, and they were successful in the trial court — at a time still within the Statute of Limitations period — in obtaining a final judgment that the driveway permit should issue. It was not until after the applicable limitation period had passed that the Appellate Court reversed that judgment, which reversal subsequently became final by a denial of the petitions for rehearing and for leave to appeal.

It does not seem reasonable, as a matter of law, that the plaintiffs, in order to avoid the bar of the Statute of Limitations, should have been compelled to file suit against the defendants during this period of time in which the defendants, by their conduct, recognized their duty and obligation to the plaintiffs and were doing the very things which the plaintiffs desired and requested. At the very least, the conduct to which we have referred would present a question of fact as to whether or not the defendants are estopped to assert the defense of the Statute of Limitations.

One may by his conduct be estopped from raising the defense of the Statute of Limitations. Kinsey v. Thompson, 44 Ill App2d 304, 307, 194 NE2d 565 (1963); 34 Am Jur, Limitations of Actions, § 411; 53 CJS, Limitations of Actions, § 25. Estoppel may be raised as a bar to the Statute of Limitations the same as to other matters. It exists independent of those things set forth in the statute itself as causing its suspension. If a party’s conduct has reasonably induced another to follow a course of action that otherwise would not have been followed, and which would be to the latter’s detriment if he could not later repudiate such course of action, an estoppel will arise to prevent injustice or fraud. Dill v. Widman, 413 Ill 448, 455, 456, 109 NE2d 765 (1953); Glad-Nan Corp. v. Henry’s Drive-In, Inc., 29 Ill App2d 363, 371, 173 NE2d 521 (1961); 28 Am Jur2d, Estoppel and Waiver, § 35.

In Kreiling v. Northrop, 116 Ill App 448 (1904), affd 215 Ill 195, 74 NE 123 (1905), the Appellate Court set forth the areas in which the doctrine of estoppel may be asserted as a bar to the Statute of Limitations. There, a drainage district had been duly formed, and through error or inadvertence, a certain part of the land in the district was not adequately drained. The residents of the area petitioned the commissioners to modify the drainage system so as to adequately drain the land in the area. The commissioners, through proper meetings, passed resolutions which recognized the failure of the existing ditches to adequately drain the land within the district; they authorized the digging of additional ditches as recommended by their engineer, to accomplish the proper drainage of the land in question; they filed the necessary petition in the County Court upon which the court found the proposed work to be necessary and proper; and they levied an assessment on the land of the district to pay for such additional work.

The commissioners did not proceed with the additional work and a petition was filed by the residents of the area for a writ of mandamus to compel them to do so. The commissioners pleaded the Statute of Limitations as a bar to the issuance of the writ. At page 450, the court stated:

“As to ... , the Statute of Limitations, ... It is waived unless so relied upon and pleaded. In some cases, as to some matters, it may be avoided by a new promise. In some other cases, as to some other matters, it may be avoided by recognition of the right given and attempt to perform the duty required and imposed. Such recognition and attempt waive and avoid the statute. The bar to a right to the payment of money may be removed by the act of part payment, however small, thereupon; the bar to a right to the performance of a duty may be removed by the act of part performance, by a beginning to perform. Words in some cases suffice; acts in some cases suffice.”

The trial court awarded the writ of mandamus, as prayed, the Appellate Court affirmed the judgment of the trial court, and the Supreme Court affirmed the judgment of the Appellate Court.

In the case of Howard v. West Jersey & Seashore Railroad, 102 NJ Eq 517, 141 A 755 (1928), the court, in rejecting the defense of the Statute of Limitations, held that the Statute may be waived by express contract or by necessary implication, or its benefits lost by conduct invoking the established principles of estoppel in pais. At pages 757 and 758, the court stated:

“Also it should be noted that, while the doctrine of estoppel in pais rests upon the ground of fraud, it is not essential that the representations or conduct giving rise to its application should be fraudulent in the strictly legal significance of that term, or with intent to mislead or deceive; the test appears to be whether in all the circumstances of the case conscience and duty of honest dealing should deny one the right to repudiate the consequences of his representations or conduct; . . .
“While it cannot be said to be ordinarily any part of duty to apprise an adversary of his rights, it must be recognized that one cannot justly or equitably lull his adversary into a false sense of security, and thereby cause his adversary to subject his claim to the bar of the statute, and then be permitted to plead the very delay caused by his course of conduct as a defense to the action when brought.”

The defendants contend that neither “waiver” nor “estoppel” may be applied in the normal sense to the Statute of Limitations. They suggest that this Statute of Limitations was enacted for the benefit of the public generally and thus cannot be waived by an individual. We cannot wholly agree with this suggestion. The statute is in fact waived if it is not specifically pleaded as a defense. Clark Equipment Co. v. Schenck, 34 Ill App2d 249, 252, 180 NE2d 39 (1962); Ill Rev Stats 1967, c 110, par 43(4). Likewise, individuals may by their conduct waive their right to assert the statute as a defense. Kreiling v. Northrup, supra.

The defendants cite Reat v. Illinois Cent. R. Co., 47 Ill App2d 267, 197 NE2d 860 (1964) as setting forth the elements necessary to create an estoppel to the assertion of the Statute of Limitations as a defense. There the court, on pages 273 and 274, acknowledged that where one, by his representations or conduct, induces another to give him an advantage which would be against equity and good conscience for him to assert, he will not be permitted to avail himself of such advantage. The court went on to state that it is necessary, however, that the one asserting an estoppel against pleading the Statute of Limitations should have relied upon the acts or representations of the other party and, because of such reliance, refrained from commencing action within the limitation period; that the defendants’ conduct must be such as tends to induce the plaintiffs to delay bringing the action; and that if the inducement for delay has ceased to operate sufficiently before the expiration of the limitation period so as to afford the plaintiffs ample time within such period to commence their action, then estoppel is not available.

We have no quarrel with these principles insofar as they are applicable to the case at bar in which it was the defendants’ quest to obtain the driveway permit for the plaintiffs which raised the question of estoppel. This began in the fall of 1961 — prior to the running of the statute — and continued until the Supreme Court denied the petition for leave to appeal in October of 1965— after the limitation period had expired. If the defendants’ acts did in fact give rise to estoppel, they did not cease to operate prior to the expiration of the limitation period.

We conclude that an issue was properly made as to whether or not the defendants may assert the Statute of Limitations as to Count I, and that it was error to hold as a matter of law that the statute barred any action under Count I.

The plaintiffs have raised a further basis for reversing the trial court’s dismissal of Count I under the Statute of Limitations: Section 16 (Ill Rev Stats 1965, c 83, par 17) which provides for a tolling of the statute if any payment or new promise in writing is made. The plaintiffs contend that the action followed by the defendants in seeking to obtain the permit was an acknowledgement of the obligations and a “payment” within the meaning of the statute, and that certain letters relating to that litigation were a new promise in writing. They also contend that there was no ultimate breach of the contract until the Supreme Court’s denial of the petition for leave to appeal in 1965 and, thus, no accrual of the cause of action until that time.

While we do not wish to disregard these arguments, we do not agree with their conclusions as to these contentions; and in view of our determination on the issue of estoppel, we believe it would unduly and unnecessarily lengthen this opinion to repeat at length the plaintiffs’ contentions as to these other matters.

In Counts II and III, the plaintiffs charge negligence and fraud, respectively, and they contend that they are not barred by the Statute of Limitations for the following reasons: (1) the doctrine of “blameless ignorance” is applicable; (2) the cause of action did not accrue until 1957 or 1962, and estoppel thereafter prevented the assertion of the statute, and (3) the defendants fraudulently concealed their wrong until such time that the doctrine of estoppel prevented the imposition of the Statute of Limitations.

The doctrine of “blameless ignorance” has been applied in some jurisdictions to prevent the commencement of the running of the Statute of Limitations until such time as one, acting with diligence, either becomes aware, or should become aware of the fact that a right has been invaded. In Mosby v. Michael Reese Hospital, 49 Ill App2d 336, 199 NE2d 633 (1964), this court recognized in a medical malpractice case that a plaintiff’s justifiable ignorance of a cause of action does not delay the operation of the statute, except to the extent specifically provided for therein. Subsequently, the legislature amended the Statute of Limitations (Ill Rev Stats 1965, c 83, par 22.1) so as to delay the operation of the statute when one does not know or should not have known of a wrong done to him, but this provision has application only in a medical malpractice case and where a foreign substance is left within the body.

In Simoniz Co. v. J. Emil Anderson & Sons, Inc., 81 Ill App2d 428, 225 NE2d 161 (1967) a roof was defectively constructed in 1953. The plaintiff was not aware of the defect and apparently had no reason to be aware of it until 1962, when the roof collapsed. In rejecting the contention that it ought to apply the “know or ought to know” rule in such a case so as to extend the time at which the Statute of Limitations was to commence, the court stated that there was neither Illinois precedent nor an exception in the statute to justify the adoption of such a rule. It observed that, following the Mosby case, the legislature saw fit to adopt the “know or ought to know” rule only in certain medical malpractice cases, and it was not the function of the court to invade the legislature’s province by further extending the rule. We agree.

The date of the accrual of the plaintiffs’ cause of action did not depend on the subsequent zoning amendment in 1957, the closing of the driveway in 1962, nor the Supreme Court’s determination in 1965, any more than did the plaintiff’s accrual of its cause of action in the Simoniz case depend on when the roof collapsed. If negligence existed, then Handler owed a duty to the plaintiffs in 1954 which it failed to perform, and there was a resulting injury at that time in the sense of a legal injury or an invasion of a right. From that moment on the plaintiffs were in jeopardy because of their use, possession and reliance on a driveway for which a permit had not issued, notwithstanding their contractual right to such a permit. The fact that the full extent of the damages may not then have been known or easily determined would not alter the fact that a cause of action existed at that time.

The plaintiffs also assert that the defendants fraudulently concealed the cause of action. Section 22 of the Limitations Act (Ill Rev Stats 1967, c 83, par 23) provides:

“If a person liable to an action fraudulently conceals the cause of such action from the knowledge of the person entitled thereto, the action may be commenced at any time within five years after the person entitled to bring the same discovers that he has such cause of action, and not afterwards.”

The defendants refer to Skrodzki v. Sherman State Bank, 348 Ill 403, 181 NE 325 (1932) as indicating that there was no fraudulent concealment within the meaning of the Act. At page 407 the court pointed out that the concealment must be of an affirmative nature designed to prevent, and which does prevent, the discovery of the cause of action. The fraud which is the basis for the cause of action either may, or may not, also constitute a fraudulent concealment of the cause of action, and the rule that the statute begins to run only from the discovery of the fraud does not apply where the party affected thereby might, with ordinary diligence, have discovered it.

By their statement which showed that they had paid for the driveway permit, the defendants represented to the plaintiffs that they had secured it. Whether the plaintiffs under the circumstances had a duty to check and verify the city records seems, at least, a question of fact to be determined from all of the relevant matters. Likewise, the representation made by the defendants constitutes, in our opinion, at the very least, a statement that would amount to a fraudulent concealment. If the defendants’ conduct constituted a fraudulent concealment within the meaning of the Statute of Limitations, the statute then apparently would not commence to run until 1961. There then would remain the question of whether the defendants are barred by estoppel from asserting the Statute of Limitations as a defense to Counts II and III.

We are of the opinion that the facts raised by the plaintiffs relative to the issues of fraudulent concealment and estoppel are sufficient to establish that it was error for the trial court to dismiss Counts I, II and III on the defendants’ motion. We do not intend, on the record before us, to determine these issues, but only to hold that it was error to dismiss said Counts on the defendants’ motion which asserted that the causes of action set forth therein were barred by the Statute of Limitations as a matter of law.

In passing, we note that the defendants objected to the plaintiffs’ filing of affidavits in opposition to their motion to strike. The motion to strike Counts I and III and to dismiss Count II was apparently filed under both sections 45 and 48 of the Civil Practice Act (Ill Rev Stats 1967, c 110, pars 45 and 48). It asserted defects properly raised under section 45, and also alleged that relief is barred by sections 15 and 16 of the Statute of Limitations — a ground properly considered under section 48. Subparagraph (8) of section 48 provides that the opposite party may file affidavits “denying the facts alleged or establishing facts obviating the grounds of defect.” The plaintiffs’ affidavits set forth facts which obviated the statute of limitations as a bar. In addition, we know of no better method whereby the plaintiffs could fully present the issues of fraudulent concealment or estoppel to the defendants’ claim that their actions were barred by the statute. The procedure followed by the plaintiffs is not unique. Devlin v. Wantroba, 72 Ill App2d 383, 218 NE2d 496 (1966); Kinsey v. Thompson, supra.

In order to avoid any misunderstanding, we wish to add that throughout this opinion we have referred to both the plaintiffs and the defendants in the plural for sake of simplicity. We do not intend thereby to suggest in any way what the respective rights or obligations of the several parties plaintiff and defendant may be. The only issue determined by this court is that as a matter of law, the complaint should not have been dismissed on the basis of the Statute of Limitations.

The motion for diminution of the record is denied, and the cause is reversed and remanded for further proceedings, not inconsistent herewith.

Reversed and remanded.

MORAN and SEIDENFELD, JJ., concur.


author: PER CURIAM.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Alfonza Townsend, Defendant-Appellant.
    Gen. No. 52,971.
    First District, Third Division.
    November 14, 1968.
    Charles B. Evins, R. Eugene Pincham, and Earl E. Strayhom, of Chicago, for appellant; no appearance made in behalf of appellee.
   Opinion

PER CURIAM.

Not to be published in full.


author: GOLDENHERSH, J.

text:
    Janie Quigley, Plaintiff-Appellant, v. Donald L. Snoddy, Defendant-Appellee.
    Gen. No. 68-12.
    Fifth District.
    November 15, 1968.
    Rehearing denied December 20, 1968.

      Harris, Holbrook & Lambert, of Marion, for appellant.
    James B. Bleyer, of Marion, for appellee.
   GOLDENHERSH, J.

Plaintiff appeals from the judgment of the Circuit Court of Williamson County entered upon a jury verdict finding in favor of defendant in plaintiff’s action for personal injuries.

The testimony shows that on June 27, 1965, plaintiff resided on the south side of DeYoung Street, east of its intersection with Garfield Street in Marion, in Williamson County. Marion City Park is situated on the north side of DeYoung Street, and the swimming pool in the park lies directly north of plaintiff’s home. At approximately 9:00 p. m. she left her home, intending to go to a baseball diamond in the park where a Little League game was to be played. The ball diamond is located north and east of the swimming pool.

Plaintiff’s driveway lies directly across the street from a wide sidewalk which runs north through the park, from DeYoung Street to the swimming pool. Plaintiff’s driveway is approximately 175 feet east of the intersection of De Young and Garfield Streets. Plaintiff was crossing De Young Street from her driveway to the park sidewalk above described when she was struck by an automobile being driven by defendant in an easterly direction.

Plaintiff's first assignment of error arises out of the admission into evidence of defendant’s Exhibit 2, a photograph. There are in evidence a number of photographs of the scene, some taken during the day and some at night, Plaintiff’s Exhibit 4 is a photograph taken in daylight from the north, looking south, and shows the sidewalk which leads to the swimming pool, plaintiff’s house, her driveway, and a portion of the premises to the east of her home. Defendant’s Exhibit 2 is almost an exact duplicate of plaintiff’s Exhibit 4, except that it shows a portable sign on each side of the park sidewalk, several feet north of the north edge of DeYoung Street, and bearing the legend “DO NOT CROSS STREET HERE — USE CROSSWALK” and below the legend, an arrow pointing to the west.

The admissibility of a photograph is governed by the same rules of relevancy and materiality as is other evidence. The issues of negligence and contributory negligence, insofar as they involve the fact that plaintiff was not at a crosswalk, are determinable within the scope of the statute; the fact that the signs were there is of no probative value, and is not material or relevant to the issues. We have examined the cases cited by defendant in support of his contention that if a photograph is accurate, properly identified, and relevant, the fact that it may have a tendency to prejudice the jury does not render it inadmissible. We do not quarrel with the rule as stated, but find no authority which renders admissible immaterial and irrelevant evidence because it is offered in a photograph, rather than by testimony. Testimony purporting to describe the signs and their location would not have been admissible, and the evidence cannot be introduced under the guise of being shown as part of a photograph. As the Supreme Court said in Tolman v. Wieboldt Stores, Inc., 38 Ill2d 519, at page 527, 233 NE2d 33, “We consider that this photograph was introduced for the purpose of prejudice as indicated by the emphasis on the sign in plaintiff’s attorney’s argument to the jury.” The trial court erred in admitting the exhibit into evidence.

In Duffy v. Cortesi, 2 Ill2d 511, at page 517, 119 NE2d 241, at page 245, the Supreme Court said: “Where error is shown to exist, it will compel reversal, unless the record affirmatively shows that the error was not prejudicial. Crane Co. v. Hogan, 228 Ill 338, 81 NE 1032.”

In Both v. Nelson, 31 Ill2d 511, at page 514, 202 NE2d 494, at page 496, 17 ALR3d 497, the Supreme Court said: “It is not every error, of course, that will require a reversal. Where it appears that an error did not affect the outcome below, or where the court can see from the entire record that no injury has been done, the judgment or decree will not be disturbed. (Baker v. Baker, 412 Ill 511, 107 NE2d 711; Lindroth v. Walgreen Co., 407 Ill 121, 94 NE2d 847; Pease v. Kendall, 391 Ill 193, 63 NE2d 2.) But where the case is a close one on the facts, and the jury might have decided either way, any substantial error which might have tipped the scales in favor of the successful party calls for reversal. (Edwards v. Hill-Thomas Lime & Cement Co., 378 Ill 180, 37 NE2d 801; Chicago, Burlington and Quincy Railroad Co. v. Warner, 108 Ill 538.)”

From our review of the record we are unable to say that the error did not tip the scales in favor of defendant and the judgment must, therefore, be reversed.

Because this case is remanded for a new trial, we discuss another issue argued in the briefs.

Plaintiff contends that the trial court erred in refusing to give her instruction number 15 and in giving defendant’s instruction number 9. These instructions are in the form of IPI 70.03 and are identical except that defendant’s omits from chapter 95%, section 172(c), Ill Rev Stats the following: “and shall exercise proper precaution upon observing any child or any confused or incapacitated person upon a roadway,” while plaintiff’s quotes the section verbatim. The notes to IPI recommend that the deleted language be omitted from the instruction when not applicable to the evidence.

The evidence shows that on the date of the occurrence plaintiff was 67 years old, and suffering from Parkinson’s Disease. Although the medical testimony shows that persons who suffer from Parkinson’s Disease have difficulty walking, there is no testimony that as plaintiff crossed the street, she walked in other than a normal manner. In the absence of evidence that plaintiff was “confused or incapacitated,” the court did not err in its rulings on the instructions.

Plaintiff has briefed and argued alleged prejudicial error in defendant’s closing argument. There is no reference thereto in plaintiff’s post-trial motion, and the error, if any, is not preserved for review.

For the reasons set forth the judgment of the Circuit Court of Williamson County is reversed, and the cause is remanded for a new trial.

Judgment reversed and cause remanded for a new trial.

MORAN and EBERSPACHER, JJ., concur.