author: MR. JUSTICE SMITH

text:
    Martha J. Barnes, Individually, and Mark E. Barnes, a Minor, by His Mother and Next Friend, Martha J. Barnes and Harold Barnes, Plaintiffs-Appellees, v. Richard Croston, Holiday Delight Baking Company, and Frank J. Haralamus, Defendants. On Appeal of Holiday Delight Baking Company, a Corporation, and Frank J. Haralamus, Defendants-Appellants.
    Gen. No. 52,907.
    First District.
    April 7, 1969.
    Tom L. Yates, of Chicago (Carl E. Abrahamson, of counsel), for appellants.

      Coghlan, McGloon, Joyce & Murphy, of Chicago, (Martin D. Coghlan, of counsel), for appellees.
   MR. JUSTICE SMITH

delivered the opinion of this court.

Holiday Delight Baking Company and Frank J. Haralamus appeal from judgments entered against them to compensate Martha J. Barnes and Mark E. Barnes for personal injuries, and Harold Barnes for damage to his automobile arising out of an automobile accident. The defendant, Richard Croston, against whom judgment was also entered, does not appeal. Errors assigned are: (1) The verdict on the question of negligence is against the manifest weight of the evidence, (2) the trial court should have directed a verdict in favor of the two appealing defendants on the ground that Croston was the sole and proximate cause of the injuries, (3) the verdicts are excessive, and (4) it was error to admit into evidence defendant Haralamus’ plea of guilty to driving a motor vehicle with defective brakes.

Haralamus, a truck driver for the baking company, was proceeding north in the right-hand lane of the three-lane Calumet Expressway. Due to traffic, he “jumped" on his brakes. His truck began to weave and tipped over on its side across the second and third lanes of traffic. He did not see the collision between Martha Barnes and the defendant Croston nor did he observe either vehicle before he got out of the truck.

Martha Barnes was driving her husband’s automobile, accompanied by her young son. She was proceeding north in the inner or third lane closest to the median strip. She passed the automobile of Croston and returned to the third lane and continued north. She saw the Holiday truck overturned when she was about five or six car lengths from the truck and traveling about 55 mph. She came to a complete stop without striking or making any contact with the truck. The defendant Croston struck the rear end of her automobile causing injuries to herself, her son, and her husband’s car. Croston was represented at the trial by an attorney, but did not appear nor did he testify. The finding of negligence as to him is thus a finality.

Haralamus was issued a traffic citation, appeared in court and pleaded guilty to driving with defective brakes. His explanation for so doing was that he had a route to make, was in a hurry and that the traffic judge asked about fifty of them to stand together and accepted their mass plea of guilty without taking any testimony. The record of his conviction was admitted into evidence. The defendants’ contention that this was error is without merit. The explanation is for the consideration of the jury. In Galvan v. Torres, 8 Ill App2d 227, 232, 131 NE2d 367, 369, the court stated:

“A plea of guilty to a criminal indictment for assault and battery is admissible in evidence in a civil case based upon the same assault and battery as it is an admisson against interest. (Young v. Copple, 52 Ill App 547; Cammarano v. Gimino, 234 Ill App 556.) The defendant did not seek to explain his plea of guilty, nor was he asked by his counsel why he pleaded guilty. Such evidence would have been admissible.”

In Gould v. Country Mutual Cas. Co., 37 Ill App2d 265, 185 NE2d 603, the procedure followed by the trial court in the case at bar was specifically approved. The problem was discussed at length and the court concluded that the record of a guilty plea is admissible in a subsequent civil action against defendant in the civil case as a judicial admission subject to explanation and contradictions and may be received, weighed, and considered by the jury in connection with all of the other evidence in the case. Common sense recommends this rule. See 18 ALK2d 1287. The defendants also contend that the negligence of Croston was the sole, proximate cause of the accident and the injuries sustained. The record clearly establishes that the negligence of Haralamus and his employer, the baking company, created the condition existing on the highway. We would note that the plaintiffs had successfully stopped for a short time before Croston crashed into the rear of their automobile. Absent Croston, then nobody would have been hurt. Plaintiffs had no difficulty in stopping and there appears to be no logical reason or explanation for Croston running into their automobile.

In Anderson v. Jones, 66 Ill App2d 407, 213 NE2d 627, we discussed the problem shown by this record. In that case, it appeared that some three to ten minutes elapsed from the time of the original accident on the highway and the time when the second collision occurred. We there held that there was a clear cutoff lapse of time and that the forces generated by the first accident had come to an end and everything was then in repose. The majority then held that the second accident was a result of intervening negligence which was insulated by a lapse of time from the negligence which created the condition existing on the highway. Mrs. Barnes testified that she was driving at 55 mph just preceding the accident and that she just had time to turn to ask her boy if he was o.k. after she came to a stop when her car was struck in the rear. On her deposition, she had indicated that some 30 seconds elapsed from the time she stopped after she passed Croston and returned to her lane and the impact. If Croston was traveling at the rate of 50 mph, he would be traveling approximately 73 feet per second or approximately 2,200 feet. Such circumstances would furnish a basis from which the jury might reasonably conclude that his negligence was the sole cause of the accident. On the contrary, Haralamus testified that he did not see the occurrence, Mark testified that their car was still rolling when it got hit and was moving slightly, and Mrs. Barnes testified that she just turned her head to the boy and asked him if he was all right when the collision occurred. Thus, this is a case typical for the determination of the jury as to whether or not sufficient time elapsed to insulate the negligence of the defendants in creating the condition on the highway from the negligence of Croston in striking the Barnes car. On the record before us, that choice is properly made by the jury and cannot be determined as a matter of law by this court.

On this record, we cannot say that the verdict of the jury on the question of negligence is against the manifest weight of the evidence nor the judgment in favor of Martha for $3,200, in favor of Mark for $1,200, and in favor of Harold for $1,277.52 is against the manifest weight of the evidence, nor that the damages allowed by the jury are excessive. The judgments are affirmed.

Affirmed.

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


source: Caselaw Access Project

author: STOUDER, P. J.

license: Public Domain

text:
    Fred Schoen, Plaintiff-Appellee, v. Raymond E. Harris, et al., Defendants-Appellants.
    Gen. No. 68-29.
    Third District.
    April 14, 1969.

      Cassidy, Cassidy, Quinn & Lindholm, of Peoria, for appellants.
    Chester Thomson, of Bloomington, and August Black, of Morris, for appellee.
   STOUDER, P. J.

Plaintiff-Appellee, Fred Schoen, commenced this action in the Circuit Court of Tazewell County seeking damages for personal injury against Raymond Harris, Robert Brown and Stanley Schoen, Defendants-Appellants. At the close of plaintiff’s evidence the court directed a verdict in favor of defendants on the first count of the complaint based on the negligence of defendants toward the plaintiff as a social guest. No error is assigned on this ruling. At the close of all the evidence, the court declined to direct a verdict in favor of defendants on the second count of the complaint based on wilful and wanton conduct of the defendants toward the plaintiff as a social guest. The issues raised by the second count of the complaint were submitted to the jury resulting in a verdict and judgment against defendants in favor of plaintiff in the sum of $10,000 from which judgment defendants have appealed.

The facts are largely undisputed. The defendants are three bachelors who leased and occupied a residence near Peoria, Illinois, the premises including an outdoor swimming pool. Plaintiff, Fred Schoen, is the father of Stanley Schoen, one of the defendants. On the day in question, Stanley Schoen invited his parents, his sister and her husband and their seven-year-old daughter to visit him. On the day of the visit, Harris and Brown had left the house and had gone elsewhere but were aware that Stanley Schoen had invited the members of his family to visit him. The parties ate lunch about 2:30 in the afternoon and at about 4 o’clock some of the members of the party went swimming, including plaintiff, Fred Schoen, but not including his son, Stanley Schoen. Plaintiff swam for about thirty minutes talking and playing with the other members of the party, which included his granddaughter. Near the end of this period he observed his granddaughter using a “bongo board” which was located on the concrete surface adjacent to the swimming pool.

The “bongo board” which was admitted into evidence, is an amusement or exercise device. It consists of two wooden pieces. The first is a circular roller about fifteen inches in length and about five inches in diameter. Midway between the two ends is a groove about one inch wide which encircles the roller. The second piece is an ordinary hardwood board eleven inches wide and thirty-six inches long. On the under side of the board is a wooden strip three quarters of an inch wide, three quarters of an inch deep and running the length of the board. The device is used by placing the board on the roller with the strip on the underside of the board fitting into the groove on the roller. By placing one’s feet at either end of the board and by shifting one’s weight from one foot to the other a “teeter-totter” effect results. Although the device appears to have no particular relation to swimming, the defendants indicated that the device was commonly used for amusement, for developing leg muscles and for improving balance.

When plaintiff’s granddaughter called to him, plaintiff got out of the pool and walked to within a few feet of where his granddaughter was using the “bongo board.” She got off the “bongo board” and plaintiff decided to try the device. He placed his left foot on one end of the board and shortly after placing his right foot on the board he “flipped,” fell on the concrete surface and broke his hip. Neither Stanley Schoen nor either of the other defendants was present at the scene of the incident at the time it occurred. Two occurrence witnesses testified, plaintiff and his wife. The wife’s testimony corroborates the events preceding the injury, i. e., the swimming, the use of the “bongo board” by the granddaughter, the getting on the “bongo board” by plaintiff and his fall.

In seeking to reverse the judgment of the trial court, defendants contend the trial court erred in denying their motion for a directed verdict at the close of the evidence and in denying their post-trial motion for judgment notwithstanding the verdict. Defendants argue that as a matter of law the evidence is insufficient to support the conclusion that their conduct was wilful and wanton, that any misconduct of theirs proximately caused the injury to plaintiff or that plaintiff was free from contributory wilful and wanton conduct. Defendants also argue that the trial court erred in the giving or refusing of instructions but in so far as errors are claimed in instructions given in behalf of plaintiff, they are likewise based on insufficiency of evidence and are therefore necessarily related to the principal issues of the case.

With respect to wilful and wanton conduct, the complaint alleges in substance, one, that the defendants placed a bongo board near the edge of the swimming pool for use by their guests, two, that defendants invited the plaintiff to use the pool and the bongo board, three, that defendants knew or should have known that the plaintiff was not familiar with the operation of a bongo board and four, that defendants therefore had a duty to warn plaintiff of the nature of the operation of the bongo board since it presented a potentially dangerous condition to a person not familiar with it. The allegations of the complaint were incorporated as an issues instruction.

Both parties concede that plaintiff’s status was one of a social guest. The general rule is that an occupant of land has no duty to avoid or prevent injury to a licensee (which includes a social guest) but such occupant does have a duty to refrain from wilfully or wantonly injuring such licensee. Marcovitz v. Hergenrether, 302 Ill 162, 134 NE 85 and Dent v. Great Atlantic & Pacific Tea Co., 4 111 App2d 500, 124 NE2d 360. It follows that an occupant has no general duty of reasonable care toward a licensee to make the premises safe or to discover unsafe conditions on the premises. The duty to refrain from wilful or wanton injury as applicable to licensees is distinguished from the duty of reasonable care owed to an invitee on the premises. By definition, a licensee is one who goes upon the premises of another with the permission of the occupant either express or implied. Hence the occupant is chargeable with knowledge of the presence of a licensee at least to the extent that the licensee’s presence is within the terms of the permission granted.

While the occupant may be under no duty toward a licensee to discover unsafe conditions on the premises where liability is predicated on a condition of the premises, as in the instant case, the occupant is under a duty to disclose or warn against hidden dangers of which he has knowledge. Kapka v. Urbasewski, 47 Ill App2d 321, 198 NE2d 570 and Snow v. Judy, 96 Ill App2d 420, 239 NE2d 327. Failure to do so may constitute wilful and wanton conduct as defined in IPI Instruction 14.01. No spirit of ill will either general or specific is required, it being deemed that the failure to disclose known dangerous conditions is a conscious disregard or indifference to the safety of others rightfully on the premises.

Whether the trial court erred in failing to enter judgment in favor of defendants notwithstanding the verdict of the jury, is determined by application of the Pedrick rule (Pedrick v. Peoria & Eastern R. Co., 37 Ill2d 494, 229 NE2d 504) and requires a consideration of all the evidence, together with the reasonable inferences which may be drawn therefrom viewed most favorably to the plaintiff.

It is plaintiff’s theory that defendants were under a duty to warn plaintiff about the dangers of the “bongo board” because its probable use constituted a known concealed dangerous condition. If, as defendants argue, the bongo board did not constitute a concealed dangerous condition, no duty arose and liability cannot be predicated upon the violation of a nonexistent duty. It is undisputed that the “bongo board” was located near the swimming pool and that it was placed there by one of the defendants with the knowledge of the others. It is equally undisputed that there were no conversations between the parties prior to the incident regarding the “bongo board” and consequently, it cannot be said that there was any specific permission to use such device. However, we are disposed to hold that there is sufficient evidence from which it may be inferred that the permission to use the swimming pool included the implied permission to use the “bongo board.” We do not believe it can be said as a matter of law, that plaintiff’s use of the “bongo board” was unforeseen or unexpected or that its use was beyond the terms of the specific permission to use the swimming pool.

No claim is made that the “bongo board” was defective or that its mere presence near the pool constituted an unsafe condition affecting the use of the pool.

Defendants argue that the “bongo board” was not inherently dangerous or a dangerous instrumentality, citing Maramba v. Neuman, 82 Ill App2d 95, 227 NE2d 80 (boomerang) and Pitts v. Basile, 85 Ill2d 49, 219 NE2d 472 (dart). Plaintiff’s response to this contention is, at best, ambiguous. In his points and authorities the following appears, “Point 2, It is necessary to warn of dangerous instrumentality and failure to do so may constitute wilful and wanton misconduct.” Such statement is not thereafter referred to in plaintiff’s argument under point 2 but such argument includes the following statement, “Plaintiff did not in the trial court nor does he now contend that the bongo board is, under the law, a dangerous instrumentality.” Plaintiff admits that the device may not be inherently dangerous but insists that his claim is not based on any such theory. Such admission is perhaps more technical than real since plaintiff refers to the device in his brief as a “dangerous instrumentality,” “dangerous condition” or “tricky device.” As plaintiff points out, “a place of danger” or a “dangerous condition” does not depend upon the existence or presence of an inherently dangerous object. By way of analogy plaintiff suggests that a rake, an otherwise harmless device, if lying concealed in the grass with the prongs upward does create a dangerous condition. While it may be true that as in the foregoing analogy an otherwise harmless object might be involved, the analogy illustrates and emphasizes that an occupant’s duty is based on the existence of a hidden concealed dangerous condition.

Plaintiff characterizes the “bongo board” as an innocent appearing device which conceals its tricky nature. However, we believe that such characterization is neither supported by any direct evidence nor by reasonable inferences which may be drawn from the evidence. To be sure, it is an innocent appearing device but there is nothing in its nature, a board and a roller, which conceals the method of its operation. Of utmost significance however is the testimony of the plaintiff himself. He observed that the device consisted of a board and roller, had observed his granddaughter using the device and was aware that one used the device as a “teeter totter.” The conditions affecting the use of the device were readily apparent to plaintiff and there is nothing in his testimony from which a contrary inference is possible. Hamilton v. Faulkner, 80 Ill App2d 159, 224 NE2d 304. Plaintiff voluntarily used the device and it operated as he expected it to. Murphy v. White City Amusement Co., 242 Ill App 56. Under the circumstances we believe that there is an entire failure of evidence from which it can reasonably be inferred that the use of the “bongo board” constituted a concealed dangerous condition and as a consequence of such conclusion no duty was imposed upon defendants with respect thereto.

For the foregoing reasons the judgment of the Circuit Court of Tazewell County is reversed.

Judgment reversed.

ALLOY and SCHEINEMAN, JJ., concur.


author: ME. JUSTICE DAVIS

text:
    Niels D. Frandsen, Marie J. Frandsen, Henning D. Frandsen, and Niels D. Frandsen for the Use and Benefit of Marie J. Frandsen, Jane Frandsen, a Minor, Karen Frandsen, a Minor, and Gayle Frandsen, a Minor, by Their Mother and Next Friend, Marie J. Frandsen, Plaintiffs-Appellees, v. John R. Anderson, et al., Doing Business as Morgan’s Double O Tap, Also Known as Happy and John’s Place, Edward S. Pratser, d/b/a Pratser’s Silver Saddle and Edward S. Pratser and Rose V. Pratser, Robert C. Filwett, d/b/a The 440 Lounge and Anthony B. Jablonski and Frances Jablonski and/or Robert C. Filwett, and Clarence A. Honneman, d/b/a Starlite Inn and Rosten Walker, Defendants-Appellants.
    Gen. No. 68-68.
    Second District.
    April 7, 1969.
    Rehearing denied May 19, 1969.

      Snyder, Clarke, Dalziel, Holmquist & Johnson, and Hall, Meyer, Fisher, Holmberg, Snook and May, of Waukegan, for appellants.
    Diver, Diver, Brydges and Bollman, of Waukegan, for appellees.
   ME. JUSTICE DAVIS

delivered the opinion of the court.

This action involves the propriety of a section 72 (El Eev Stats 1967, c 110, par 72) petition, filed in this action by Gates W. Clancy, an attorney. He was not named as a party in the proceeding.

The original action arose out of an automobile accident which occurred in Lake County in November, 1962. The plaintiffs — Niels D. Frandsen, as driver, and his family, as passengers — were riding in the Frandsen car, which was involved in a collision with a car driven by John E. Anderson.

In September, 1963, the plaintiffs filed an amended complaint, which joined as additional defendants persons who allegedly sold intoxicating liquor to John E. Anderson on the date of the accident, or who owned some interest in the taverns in question. Among the additional defendants were Mary C. Morgan and Stanley Morgan, her husband (subsequently deceased), who were alleged to have been “owners in part, and contract sellers” of a certain tavern known as Morgan’s Double 0 Tap. The contract purchasers of the tavern, John and Gladys Marie Fredericks, were also joined as defendants.

On November 12, 1963, Clancy filed his appearance for the Morgans, and also filed an answer to the amended complaint on their behalf, wherein it was admitted that the Morgans “were and still are the owners, in part, and contract sellers of the premises” in question.

On November 22, 1963, the plaintiffs filed a second amended complaint which joined additional dramshop defendants. The allegations in the second amended complaint, with reference to the Morgans, were identical with those made in the amended complaint, to which answer had been filed by Clancy, on their behalf. A copy of the second amended complaint was mailed to Clancy by the attorneys for the plaintiffs.

Clancy filed an answer thereto for some of the newly-joined defendants, but did not answer the second amended complaint on behalf of the Morgans.

On March 31, 1965, the Circuit Court of the Seventh Judicial Circuit, Sangamon County, entered an order restraining the Lincoln Casualty Company, its officers, agents, directors, employees and all other persons, from transacting any company business or disposing of its assets or property until further order of the court. Lincoln was the insurer for the Morgans.

On April 21, 1965, Clancy notified the Morgans by letter that Lincoln had been enjoined from conducting any further business; that, as the attorney retained by Lincoln, he could not further represent them in that case; and that, if they wished to have him continue to represent them, they should contact his office within thirty days concerning arrangements for the payment of his fees.

On June 7, 1965, Clancy asked leave to withdraw as attorney for the dramshop defendants whom he represented — including the Morgans. The court refused such request. Clancy then filed a motion to vacate the order of June 7, which recited the foregoing pertinent facts. On June 11, 1965, the court heard the motion to vacate, and refused the request because Clancy claimed an attorney’s lien on his files and would not turn them over to other counsel for the dramshop defendants without an arrangement for paying his fees. Neither the Morgans, nor anyone on their behalf, requested their file and, after June 11, 1965, Clancy made no further appearance for them until February 9, 1968, when he filed the Section 72 petition in question.

On June 28, 1965, the driver of the other automobile and its owner were dismissed from the proceeding upon payment of $20,000 to Niels D. Frandsen and Marie J. Frandsen. In October of 1965, the remaining dramshop defendants, other than the Morgans, were also dismissed, and the sum of $22,000, which was received from them, was allocated by the court to Niels D. Frandsen and Marie J. Frandsen, individually and as guardian of Jane, Karen and Gayle Frandsen, minors.

Counts III, IV, V and VI, of the second amended complaint, which related to the Morgans, prayed judgment against them and in favor of the following named plaintiffs, in the following amounts:

Niels D. Frandsen, for personal injuries, $15,000;
Niels D. Frandsen, for property damage $15,000;
Niels D. Frandsen, for the use and benefit of his wife, Marie J.
Frandsen, and his
three children, for loss
of support, $20,000;
Marie J. Frandsen, for personal injuries $15,000.

On February 9, 1966, the court entered a default judgment against the Morgans for failure to answer the second amended complaint, and on that date, evidence was offered before a jury, which assessed damages and returned verdicts in favor of the plaintiffs and against the defendants. These verdicts were reduced by the court, and judgment was entered against the Morgans and in favor of the plaintiffs, as follows:

Niels D. Frandsen $30,000;
Marie J. Frandsen 15,000;
Marie J. Frandsen
(for loss of support) 5,000;
Jane Frandsen 5,000;
Karen Frandsen 5,000;
Gayle Frandsen 5,000.

On March 25, 1966, Attorney Charles M. May, who then represented Mary C. Morgan, wrote to Clancy, advising him of the default judgment and requested his assistance in vacating the judgment. Clancy replied by letter which stated: “There is no responsibility insofar as this firm is concerned. The entire responsibility rests with the client failing to protect their rights, if any, based on notice previously given.”

On April 7, 1966, May filed a section 72 petition on behalf of Mary Morgan asking that the default judgment be vacated and set aside. And, on April 8, 1966, May again wrote to Clancy, advised him of the hearing date on the petition and asked that he “be present at the hearing and present testimony that would be material to the issue.” Clancy replied by letter dated April 12, which stated: “Your client chose to ignore our direction and is entirely responsible for any problem that now exists.” The petition was amended, heard and denied on April 15, 1966, and Clancy did not attend the hearing. No appeal was ever taken from the order denying Mary Morgan’s petition to vacate the judgment.

At the hearing, Attorney May pointed out “that there is a serious and substantial question that the Morgan’s ownership or alleged ownership of this property puts them in a position whereby they could be held responsible under the Illinois Dram Shop Act.”

On August 15, 1966, Mary Morgan filed a suit against Gates W. Clancy for malpractice arising out of the entry of judgment against her on February 9, 1966, and on February 9, 1968, Clancy filed a section 72 petition, as one of her attorneys of record, to set aside and vacate the judgment. This petition was heard and denied by order entered April 3,1968. Clancy appealed from this order.

He urges that the issue on review is whether the status of the Morgans, as contract sellers, without either possession or control of the tavern, will support a judgment under the Dram Shop Act. However, we face several threshold issues which must be determined before we reach the issue presented by Clancy. They are:

1. Did Clancy have standing to bring the section 72 petition, and does he have standing to prosecute this appeal ?
2. Did Clancy establish facts in the trial court showing that he was diligent in preventing the entry of the default judgment against the Morgans, and in presenting to the trial court a valid defense on their behalf ?

Section 72 of the Civil Practice Act replaces and expands former section 72 of the Act. It prescribes one simple and comprehensive procedure, applicable alike to law, equity and statutory proceedings, by which, after thirty days, a litigant may seek to be relieved from a final judgment or decree for reasons that supported a motion under section 72 of the former Act, a bill of review, a bill in the nature of a bill of review, and other remedies abolished by revised section 72.

Subsection (1) of the section, abolished the common law and equitable procedures by which final judgment might formerly have been attacked in the trial court, and substituted a simple petition procedure. This subsection is intended to make applicable to actions of every nature, the post judgment relief available under writs of error coram nobis and coram vobis, writs of audita querela, bills of review, and bills in the nature of bills of review. Brockmeyer v. Duncan, 18 Ill2d 502, 505,165 NE2d 294 (1960).

While the petition must be filed in the same proceeding in which the judgment order or decree was entered, it is not a continuation thereof, but rather, a new action. (Ill Rev Stats 1967, c 110, par 72 (2); Brockmeyer v. Duncan, supra, 505.)

In Anderson v. Steger, 173 Ill 112, 117, 118, 50 NE 665 (1898); Jablonski v. People, 330 Ill App 422, 425, 71 NE 2d 361 (1947); and in People v. Nakielny, 279 Ill App 387, 395-397 incl. (1935), the court held that a writ of error or writ of error coram nobis can be brought only by a person who was a party or privy to the record, or was injured by the judgment and who will derive benefit from its reversal, or who is competent to release error.

The ancient common-law writ of error coram nobis was used to bring to the attention of the court that entered the judgment, matters of fact which would have prevented its rendition had the true facts been known when the judgment was entered. Glenn v. People, 9 Ill2d 335, 340, 137 NE2d 336 (1956). Also see: SHA c 110, par 72, p 288.

The relief sought by Clancy under his section 72 petition was that which was formerly available under the petition for writ of error coram nobis. However, Clancy was not a party to the record; neither was he injured by the judgment, nor would he derive benefit from its reversal within the meaning of the law. He had no standing whatsoever to release error. Mary C. Morgan was the person who was injured by the judgment and would derive benefit from its reversal. She alone could release error.

In Orthwein v. Thomas, 127 Ill 554, 571, 572, 21 NE 430 (1889),' the court held that parties to a decree are those only who are named as such in the record and are properly served with process, or enter their appearance; that a privy in blood or estate is one who derives his title to the property in question by descent or purchase; and that privy to a judgment or decree is one whose succession to rights of property thereby affected occurred after the institution of the particular action, and from a party thereto.

Orthwein has been cited with approval in Smith v. Bishop, 26 Ill2d 434, 437, 438, 439, 187 NE2d 217 (1963); Sweeting v. Campbell, 2 Ill2d 491, 496, 497, 119 NE2d 237 (1954); Schafer v. Robillard, 370 Ill 92, 100, 17 NE2d 963 (1938); and in other cases.

In the light of these decisions, we conclude that Clancy, who was neither a party to the proceeding, nor a privy to the judgment or privy in blood or estate, had no standing to file the section 72 petition in his own name, and that he has no standing to prosecute this appeal.

Consequently, we do not reach the merits of Clancy’s alleged defense. However, even if we held that Clancy had standing to bring the petition, we would not reach his alleged defense in that the foregoing recitation of the facts leading up to the filing of his section 72 petition conclusively establish that he was not diligent in presenting his defense; and, in addition, section 72 may not be used as a procedure whereby matters previously heard are presented to the court to be relitigated.

The remedy provided by section 72 is not available unless the petitioner shows that through no fault or negligence of his own, the error of fact or the existence of a valid defense, was not made to appear to the trial court. Gunderson v. Rainbow Cleaners & Laundry, 77 Ill App2d 268, 272, 222 NE2d 41 (1966); Piper v. Reder, 70 Ill App2d 141, 144, 217 NE2d 487 (1966). And, Section 72 does not afford a remedy whereby matters previously adjudicated may be relitigated. Weaver v. Bolton, 61 Ill App2d 98, 105, 209 NE2d 5 (1965). Were the court to grant relief to Clancy under the circumstances of this case, we would permit section 72 to be used to relieve him of his own negligence and to afford a procedure whereby the matters previously litigated by Mary C. Morgan’s section 72 petition, would be relitigated. This is not the function and purpose of the section.

A motion to dismiss the appeal was filed herein and was taken with the case. In view of our conclusions, the appeal is dismissed.

Appeal dismissed.

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


author: MR. JUSTICE ABRAHAMSON

text:
    Security Insurance Company of Hartford, a Corporation, Successor to New Amsterdam Casualty Company, a Corporation, Plaintiff-Appellee, v. Julius Mato and David Toth, Defendants-Appellants.
    Gen. No. 68-76.
    Second District.
    April 7, 1969.
    Coe, Rubinstein and Shafran, and Robert A. Holstein, of Chicago, for appellants.

      McKenna, Storer, Rowe, White & Haskell, of Chicago, for appellee.
   MR. JUSTICE ABRAHAMSON

delivered the opinion of the court.

This is a declaratory judgment action brought by plaintiff insurance company to obtain determination as to whether defendant, Julius Mato, was insured by it at the time he had an automobile accident in which he and defendant, David Toth, were both injured. Defendant Mato filed a countercomplaint seeking expenses, costs and attorney fees relating to his own injuries and for defense of the suit brought by Toth against Mato. Plaintiff and Mato filed motions for summary judgment and presented pleadings, affidavits, depositions, exhibits and memoranda of law. The court decided the case based on this material and entered judgment holding that no policy existed between plaintiff and Mato and that plaintiff company had no obligation to defend the action brought by Toth against Mato. The defendant’s motion after judgment was denied by the trial court, leading to this appeal by the defendants.

In July of 1963, defendant Mato purchased an insurance policy from Dann Brothers, Inc. of Chicago, Illinois, general agents for the New Amsterdam Casualty Company, Security Insurance Group, the plaintiff in this action, to cover an automobile which he owned. Mato had purchased other insurance from Dann Brothers, including a Homeowner’s Policy. Most of his dealings with the agent were over the telephone. The policy issued on his automobile was designated Select Automobile Policy No. 29-030663, a direct billing policy. The policy covered a period from July 17,1963, to January 17,1964, and for the subsequent self-renewal six month periods. It provided liability insurance in the amount of $100,000 for each occurrence, medical expenses of $3,000 for each person, uninsured motorists coverage of $20,000 for each occurrence, accidental death benefit of $1,000, comprehensive coverage for actual cash value of the automobile, $200 for personal effects, and towing coverage of $25 per disablement.

The automobile insured under this policy was a 1955 Mercury. Thereafter, the policy was renewed for successive six-month periods from January 17,1964, to July 17, 1964, and from July 17, 1964, to January 17, 1965. On each occasion he was billed for a premium of $36 and paid as required.

On or about May 11, 1965, Mato called Dann Brothers and asked to speak with Donald Dann. Mato identified himself to Mr. Dann and indicated he had replaced the 1955 Mercury with a 1958 Ford, for which he wished the same coverage as he had on the Mercury. Mr. Dann said, “fine, don’t worry about a thing. I will refer you to one of the girls to get the necessary information.” A secretary came to the phone and stated that according to the file his automobile insurance policy had lapsed as a result of his failure to pay the premium when due in January of 1965. She stated, however, that the problem would be rectified and he would be covered and that Dann Brothers would send out a confirmation of the new coverage within a few days. She then asked for certain information concerning the new automobile which Mato did not have at hand. He inquired about payment and was told not to send any money until he received a bill. Mr. Dann then returned to the phone and thanked Mato for calling and stated, “don’t worry about a thing, you have the same insurance you had before; enjoy your car.” Within a day or two Mato again called Dann Brothers and talked to someone he believed to be the same secretary he had talked to on the first occasion, supplied the necessary information regarding his automobile, including the serial number.

On May 15,1965, Mato received in the mail at his home from Dann Brothers, Inc., two papers stapled together. The first was a small sheet entitled “Endorsement.” It was dated May 14, 1965, and said “This endorsement forms a part of your policy and should be attached to the same without fail.” It reflected automobile coverage under New Amsterdam Casualty policy No. 29-030663. Attached to this paper was one entitled “Amendment of Declarations (Select Automobile Policy).” This item showed that it was endorsement #1 and contained a description of the car. It contained the same coverage as he had on his old Mercury, showed an effective date of May 11, 1965, attached to and forming part of Policy No. 29-030663 issued to Julius Mato and dated May 14, 1965. This endorsement was signed by both the president and secretary of New Amsterdam Casualty Company and countersigned by Armand L. Dann, one of the Dann Brothers who signed as authorized representative.

On June 20, 1965, Mato was involved in an automobile accident in which he was the driver and defendant Toth was a guest passenger. Both were severely injured. During his convalescence Mato was interviewed by a representative of plaintiff company, who took a written statement from him. A short time later a second representative of plaintiff company came to Mato’s place of business and took a statement. Both of these representatives of plaintiff company told Mato that he had nothing to worry about since he had complete coverage. He was instructed to send his medical bills to the plaintiff and complete the necessary Proof of Loss forms, which he did. During this time a representative of plaintiff’s Claim Department advised Mato that plaintiff would take care of everything.

Some months later another representative of plaintiff took another statement from him. Within a few days after the accident, plaintiff company was apprised of the fact that it might have a policy defense and notified Dann Brothers, Inc. that “This policy was lapsed 2/1/65 for nonpayment.” This notification was received by Dann Brothers, Inc., on June 25, 1965. On that same day Dann Brothers wrote Mato “We never received notification that you desired reinstatement, therefore, nothing further was done with your policy.” Plaintiff undertook to defend Mato and it was not until approximately 16 months after the accident that Plaintiff adopted an adverse position to Mato by filing its complaint for declaratory judgment.

Defendant contends that the issues presented for review are: (1) whether defendant Mato’s policy of insurance lapsed or expired on January 17, 1965; (2) if lapsed or expired, whether the policy was reinstated by plaintiff’s general agent, Dann Brothers, Inc., as a result of telephone conversations with defendant Mato; (3) if not reinstated, whether an oral contract for insurance coverage later confirmed in writing by Dann Brothers, Inc. was entered into between Dann and Mato; and (4) whether plaintiff is estopped to deny coverage.

In our view of the facts presented to us for consideration, we do not deem it necessary to pass on either of the first two contentions of the defendant. It has been settled by many decisions that suit to enforce the liability of an insurance company may be brought on a contract for insurance as well as on the policy itself. Where the parties have agreed upon all of the essentials of the contract it is sufficient to hold the insurance company. Cottingham v. National Mut. Church Ins. Co., 290 Ill 26, 32, 124 NE 822. It is sufficient if one of the parties to such a contract proposes to be insured and the other party agrees to insure, and the subject, period, amount and rate of insurance agreed upon. On the record before us there can be no doubt that the parties agreed upon the essential elements of a contract of insurance. Defendant specifically requested the same coverage he had had before. He was orally assured that he would have such coverage. It is not necessary that all of the details of the coverage be agreed upon. It is sufficient if the elements are understood or can be ascertained. Barlow v. Farmers’ Mut. Fire Ins. Co., 128 Ill App 580, 582, 583; Continental Ins. Co. v. Roller, 101 Ill App 77, 79.

Defendant Mato and the general agent knew the terms of his prior policy. The endorsement sent by the general agent to defendant Mato showed the extent of the coverage, the amount of premium and showed on its face that the premium was for a six-month period commencing May 11,1965. It cannot be argued that the premium was due and not paid. It appears defendant Mato specifically inquired about payment and was told not to send any money but that he would be billed. We cannot agree with plaintiff’s contention that there was no meeting of minds between Mato and Armand Dann. Defendant Mato stated he desired insurance coverage and, in fact, the same coverage he had before. It is clear from the endorsement sent to him that plaintiff’s general agent understood the coverage and the period to be covered and set forth the premium for such policy. We do not believe that plaintiff can contend that no contract for insurance existed because its general agent mistakenly used an endorsement rather than a binder. We do not believe defendant should be denied coverage because plaintiff’s general agent may have erred.

We are of the opinion that plaintiff is estopped from denying that insurance coverage existed. Plaintiff relies heavily on the case of Bourne v. Seal, 53 Ill App2d 155, 169, 203 NE2d 12. In that case it was held that an insurance contract could not be created by estoppel. The policy in that case had expired prior to the accident. The party who had been insured had done nothing to attempt to reinstate his policy or to secure new coverage. We are of the opinion that the facts before us more resemble those presented to the court in Wille v. Farmers Equitable Ins. Co., 89 Ill App2d 377, 382, 232 NE2d 468, where it was held that the failure of the general insurance agent to properly process the plaintiff’s request for insurance coverage became the failure of the insurance company and liability was in that case imposed on defendant insurance company even though the insurance company had never received an application for insurance, nor did the agency have explicit authority to bind the company.

We are also of the opinion that the decision in the case of Zak v. Fidelity-Phenix Ins. Co., 34 Ill2d 438, 441, 442, 216 NE2d 113, is in point. In that case the plaintiff’s policy had been cancelled and plaintiff had been notified. Upon receiving notification of the cancellation, plaintiff contacted an agent of the insurance company and was informed that the cancellation was probably in error and it would be corrected. At the time of the accident, plaintiff believed she was protected and that the policy was in force. Defendant insurance company undertook her defense and it was not until after judgment against plaintiff had been entered that defendant attempted to disclaim liability. The court held that where the policy had been cancelled but the facts were such that the insured had a reasonable basis for believing the policy was in force at the time of the accident, and the insurance company undertook the defense, it will be estopped from denying its liability, where plaintiff in reliance upon the actions of the company in defending her has been prejudiced. We believe that in the case before us defendant Mato would be prejudiced if plaintiff is permitted to disclaim its liability some 16 months after it knew of its possible policy defense.

For the reasons above stated, we believe the judgment of the court below should be reversed and the case remanded for further appropriate proceedings.

Reversed and remanded for further proceedings.

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


author: SMITH, J.

text:
    Betty Wilson, Plaintiff-Appellee, v. Board of Trustees of the State Universities Retirement System, a Public Corporation, Organized and Existing Under and By Virtue of the Laws of the State of Illinois, Defendant-Appellant.
    Gen. No. 10,986.
    Fourth District.
    April 10, 1969.
    Rubin G. Cohn, of Champaign, for appellant.
    Burt Greaves, of Champaign (Burt Greaves, of counsel) , for appellee.
   SMITH, J.

The single issue is whether a widow, convicted of the voluntary manslaughter of her husband, may be a beneficiary under the State Universities Retirement System in which her husband, at the time of his death, was a participant. The Board of Trustees held that she wasn’t. The trial court on administrative review held that she was. We hold that she wasn’t.

We reviewed this claimant’s conviction for voluntary manslaughter. 79 Ill App2d 200, 228 NE2d 472. The widow was charged with murder, voluntary manslaughter and involuntary manslaughter, but was convicted of voluntary manslaughter only in a bench trial. This amounts to a finding of not guilty as to murder. It is the position of the claimant that Ill Rev Stats 1967, c 108%, § 15-149, of the State Universities Retirement System requires that the board “shaU apply such law as would be applied by the courts of this State in determining the devolution of intestate property” in ascertaining whether or not a beneficiary claimant is the widow, widower, child, or parent of a participant or annuitant. It thus follows, she says, that Ill Rev Stats 1967, c 3, § 15a and § 49a, which prohibits, respectively, one convicted of a murder from inheriting as an heir to his victim and voids a legacy or devise to one convicted of the murder of his testator does not apply to a conviction for voluntary manslaughter. The statute is unambiguous, requires no construction, and thus disqualifies a claimant otherwise qualified only if he or she is convicted of the murder of the pension participant or annuitant. Thus, having been acquitted of murder, the claimant asserts and the trial court held that she was not barred from the benefit of the State Universities Retirement Act by any proper construction of that Act.

We have noted that § 15-149 of the Retirement Act above-cited requires a board to “apply such law as would be applied ... in determining the devolution of intestate property.” The plaintiff would apparently confine this language to the statutory law even though by the very terms of the Act itself reference is made to “law . . . applied by the courts.” It would seem scarcely debatable that such language encompasses decisional as well as statutory law.

Under § 15-187, it is provided “None of the benefits herein provided for shall be paid to any person who is convicted of any felony relating to or arising out of or in connection with his service as an employee.” Under pension plans, the participant is the primary beneficiary and those designated by him in the event of his death are in reality secondary beneficiaries. The statute thus disqualifies a participant who is convicted of any felony arising out of or in connection with his service as an employee under the Act. To construe or apply the Act as the plaintiff contends is to give the secondary beneficiary a treatment more favorable than the participant himself. Conviction of any felony in connection with the work that brings him under the Act disqualifies him. We see no reasonable justification for permitting a secondary beneficiary to benefit when the status as a beneficiary is brought about by intentional killing of the participant through either murder or voluntary manslaughter. Conviction of either should bar a claimant.

It should be observed that § 15-149 makes no determination as to whether a beneficiary is or is not entitled to participate in the benefits under the Act. It states only that “in determining whether a benefit applicant under this Article is the widow, widower, child, or parent of a participant or annuitant, the board shall apply such law as would be applied by the courts of this State in determining the devolution of intestate property.” It strikes us that the reference to the devolution of intestate property means that the status as a widow, widower, child, or parent shall be determined under the Retirement Act in the same manner as it is determined under the laws of descent. This, in our judgment, refers to such matters as common-law marriage, simultaneous death of husband and wife, illegitimacy, posthumous children, divorce, adopted children and adoptive parents. Murder and felonious killings have nothing to do either with the creation of the status or its destruction. It is the fact of death and not the method or means of death which changes a lawful husband or wife into a widower or widow. It seems quite clear that § 15-149 should be restricted to the definitional status of widow, widower, child, or parent and does not inferentially or otherwise incorporate the whole of the Descent Act into the Retirement Act.

In Bradley v. Fox, 7 Ill2d 106, 129 NE2d 699, our Supreme Court discusses the public policy of common-law maxim that no man shall profit by his own wrong or by his own crime. It is there made clear that one who murders his benefactor cannot acquire or increase his property rights by such action. This philosophy applies where the beneficiary or heir under a life insurance policy murders the assured and thus acquires the proceeds of the policy, where a devisee or legatee feloniously kills his testator, where a person murders his intestate ancestor, and where one joint-tenant murders his other joint-tenant and thus accelerates survivorship rights. This case also squarely holds that such public policy, be it common-law, statutory, or by judicial construction, does not violate constitutional mandates against forfeiture of property or corruption of blood. One cannot forfeit that which he is precluded from having. It is not even debatable in our judgment that if the claimant in this case had been convicted of murder she would have been barred from recovery. This is not so because of any provision of the Descent Act or reference to that Act, but because the public policy of this State so directs.

Turning back the calendar, we find that the Supreme Court in Wall v. Pfanschmidt, 265 Ill 180, 106 NE 785, took the position that since our statute of descent superseded the common law on the devolution of property and since it did not provide for a bar to inheritance where an ancestor or heir killed his testator or intestate the court could not write into the statute such a bar. That philosophy applied to a construction of the Retirement Act we now consider would require the conclusion that since there is no prohibition which specifically forbids one who is convicted of voluntary manslaughter from becoming a beneficiary, there is no bar to recovery. However, in 1939, the legislature amended our Probate Act by the addition of § 15a and § 49a and thus statutorily reiterated the common-law and it applies to one convicted of murder in the statute on the devolution of property. Where, therefore, our courts have undertaken to remove, destroy, or ignore the common-law “innocent suitor” doctrine, the legislature has by statute superseded the pronouncement. We thus conclude that silence in both the statute of descent and the Retirement Act as to the effect of a voluntary manslaughter conviction can in no sense be construed as suggesting recovery in this case in the face of the common-law maxim. Indeed many “courts reason that such maxims constitute a rule of public policy which the legislature in the enactment of statutes of descent and distribution had no intention of abrogating, and that the interpretation of the law as precluding a person who feloniously kills his ancestor from succeeding to his victim’s estate is but an expression of the legislative intent rather than an abrogation of the statutes by judicial construction.” 39 ALR2d, § 6, p 488. In the face of this history, we think it would be a fracturing of present public policy not to bar as a claimant one convicted of voluntary manslaughter. To permit a claimant to benefit under a public retirement plan when such claimant has been convicted of the unlawful, intentional killing of the person through whom the benefits are claimed without a reasonable belief in the necessity of such killing is, we think, not only to permit one to benefit by his or her own wrong, but is fundamental injustice. There is a fundamental and vital moral difference between an intentional killing through murder or voluntary manslaughter and other types of homicides. No statute specifically bars this result nor does any sound public policy preclude it. Indeed, it commands it.

Accordingly, the judgment of the circuit court is reversed and this cause is remanded to that court with directions to enter an appropriate judgment in conformity with the views herein expressed.

Reversed and remanded with directions.

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


author: JUSTICE ABRAHAMSON.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. George William Smith, Jr., Defendant-Appellant.
    Gen. No. 68-64. (Abstract of Decision.)
    Second District.
    April 10, 1969.
    Joanne Sevcik Shea, of Riverside, for appellant; Bruno W. Stanczak, State’s Attorney of Lake County, of Waukegan, and John Hoogasian, Assistant State’s Attorney, for appellee.
   Opinion by

JUSTICE ABRAHAMSON.

Not to be pubished in full.


text:
    Maxine M. Plank, Executrix of the Estate of Laurence M. Plank, Deceased, Plaintiff-Appellee, v. Thomas Earl Holman, Defendant-Appellant, and Myrtle R. Walgreen and Elsie Rayfield, Administratrix of the Estate of Ralph R. Rayfield, Deceased, Defendants-Cross Appellants.
    Gen. No. 68-105.
    Second District.
    April 11, 1969.

      Gates W. Clancy, of Geneva, for appellant.
    O’Brien, Burnell, Puckett & Barnett, Tyler and Peskind, and George E. Matyas, of Aurora, for appellees.
   ME. JUSTICE DAVIS

delivered the opinion of the court.

This is a wrongful death action brought by Maxine M. Plank, Executrix of the Estate of Laurence M. Plank, against Thomas Earl Holman, Myrtle R. Walgreen and Elsie Rayfield, Administratrix of the Estate of Ralph R. Rayfield. The jury returned a verdict for the plaintiff, on which judgment was entered, and the defendants appealed.

At the time of the accident, Laurence M. Plank was driving a 1963 Buick in a westerly direction along U. S. Route No. 30 at a point about one mile west of its intersection with Illinois Route No. 47. The highway, at this place, had two lanes. At the site of the accident, there was a yellow, no-passing stripe for the westbound traffic, and the highway, from east to west, was on a slight upward grade, toward the crest of a hill. The plaintiff, Maxine M. Plank, was driving another car, and was following approximately eight to nine-car lengths behind her husband’s car. There were no cars between them.

The defendant, Holman, was driving a 1964 Mustang in an easterly direction along the highway. A passenger was with him, who later and prior to the time of the trial, became his wife. A1964 Lincoln, also traveling in an easterly direction, was following the Mustang. This car was driven by the decedent, Ralph R. Rayfield, the chauffeur for the defendant, Myrtle R. Walgreen. Elsie Rayfield, Administratrix of her husband’s estate, was riding in the back seat of the Lincoln.

The defendants, Holman, Walgreen and Rayfield, and also Mrs. Holman, were offered as witnesses. The plaintiff objected by virtue of the provisions of the Dead Man’s Act (Ill Rev Stats 1967, c 51, par 2), and they were not permitted to testify.

The plaintiff called the deputy sheriff who investigated the accident, as a witness. He testified concerning the location of the vehicles, and of the various occupants of the cars along the roadway, upon his arrival at the scene of the accident. He stated that when he arrived at the scene, debris, consisting mainly of dirt, glass, and oil or some other liquid, was on the highway in the westbound lane of traffic; that the Buick was facing in a westerly direction, completely in the westbound lane with its right rear wheel perhaps on the shoulder of the westbound lane; that the Lincoln was swung around, facing in a northwesterly direction, the front half being in the westbound lane of traffic and the rear half being in the eastbound lane of traffic; and that the Lincoln was ten to fifteen feet east of the Buick. He further testified that the Mustang was some twenty feet east of the Lincoln, partly on the shoulder on the eastbound side of the highway; and that he observed and measured, skid marks.

The plaintiff next called Mr. Willgeroth, who arrived at the scene shortly after the accident. He did not observe any skid marks at that particular time, but his family remarked about them. The next day, he returned to the scene and observed the skid marks: the heaviest and most obvious ones were in the eastbound lanes. He testified that they seemed to swerve into the west lane; and that some lesser skid marks were in the westbound lane.

A witness was then called by the plaintiff, who testified to the careful driving habits of the decedent, Laurence M. Plank.

The plaintiff then called William Billings, a reconstruction expert to testify. Much of the dispute on this appeal relates to his testimony. He testified as to his training, background and experience in the field; that he had reconstructed the accident in question, and in doing so, he employed photographs of the cars involved, photographs of the highway at the scene of the accident, and photographs taken by him at the scene at a subsequent date. He testified as to his personal observation of the Buick and to the measurements and other observations made by him at the scene of the accident at a subsequent date. He testified in detail with reference to the various steps involved in his reconstruction of the accident.

The witness gave his opinion, based upon his reconstruction, of the manner in which the accident took place. It was his opinion that the eastbound Mustang was overtaking and passing the eastbound Lincoln; that the driver of the Mustang (Holman) observed the closeness of the westbound Buick and turned to the right and braked to get back into the eastbound lane in front of the Lincoln; that, at that point, the driver of the Lincoln, in order to avoid a rear-end collision, turned to the left and applied his brakes, at which point the front of the Lincoln and the rear of the Mustang collided; and that the Lincoln then proceeded crossways into the westbound lane, where it was struck at its right front fender by the front of the Buick.

The defendants called Mrs. Arnold, who was traveling west along the same highway, as their first witness. She testified that she first heard a crash and then saw the Lincoln, in the air, going from the eastbound into the westbound lane. She was not able to describe anything that happened prior to the sound of the crash. Next, they called Mrs. Houston. She testified that she was riding in a car proceeding westerly along the same route; that she looked up and saw the two cars that had collided, and that when she saw them they were up in the air “like a peak.”

The defendants also called Maxine M. Plank, under section 60 of the Civil Practice Act. She testified that she was driving about eight- to nine-car lengths behind her husband’s car; that there were no cars between them; and that she saw her husband’s car and the Lincoln come together. She also stated that she did not see either the Lincoln or the Buick contact the Mustang; that she did not see any brake lights on her husband’s car prior to the collision, and that, “Actually I only saw two cars come together at the scene of the accident — the Buick and the Lincoln.” She stated that she did not see the Lincoln at any time prior to the actual impact.

The defendants made offers of proof as to the nature of the testimony of those who were barred from testifying under the Dead Man’s Act.

The defendants contend:

(1) that the trial court erred in permitted evidence of decedent Plank’s careful habits, as there were competent eyewitnesses to the accident;
(2) that the trial court erred in admitting the testimony of the reconstruction expert and in failing to strike his testimony on the grounds that there were eyewitnesses to the accident, thus barring reconstruction testimony, and on the further ground that there was inadequate foundation for such testimony;
(3) that the trial court erred in permitting the case to go to the jury in that the circumstantial evidence as to the proximate cause of the accident was not sufficient to present a jury question;
(4) that the trial court erred in excluding the occurrence testimony of the defendants’ witnesses;
(5) that the trial court erred in refusing tendered instructions on impeachment and sudden emergency; and
(6) that the verdict was contrary to the manifest weight of the evidence.

We believe that the trial court was correct in admitting evidence of the careful habits of the decedent, as a circumstance tending to prove that he was exercising due care and was free from contributory negligence at the time of the accident. Before there can be eyewitnesses whose testimony is sufficient to bar the admission of evidence of habits of due care, the purported eyewitnesses must see the incident in question more than the brief instant of, or immediately prior to, impact. Whether or not the decedent, Plank, was in the exercise of due care for his own safety would depend, in part, on the locations of the various cars prior to impact, and their actions and paths as they approached the point of impact. Absent direct and positive testimony as to what transpired shortly before the accident, the plaintiff must then seek to establish due care through proof of careful habits and circumstantial evidence surrounding the incident. Lobravico v. Checker Taxi Co., Inc., 84 Ill App2d 20, 31, 228 NE2d 196 (1967); Davenport, R. I. & N. W. Ry. Co. v. DeYaeger, 112 Ill App 587, 543 (1903); Cleary, Handbook of Illinois Evidence, Second edition, § 12.14.

None of the purported competent eyewitnesses saw the incident sufficiently to bar the evidence of careful habits. Even Maxine M. Plank, who was in the most obvious position to have seen what happened, did not see or notice the paths of travel of the cars prior to the impact. She did not see the Lincoln prior to the impact. The remaining witnesses also saw the incident only at the moment of, or the moment after, the impact. Their observations of the event were momentary, fragmentary and insufficient to describe what actually happened, and the trial court did not err in admitting the evidence of the careful driving habits of the decedent, Plank.

Maxine M. Plank testified that her husband had been industrious, his habits of sobriety and thrift were good, his health had been good, and he had contributed money, goods and services to her. The defendants, Walgreen and Rayfield, contend that such testimony was tantamount to evidence of habits of care and, thus, opened the door to rebuttal evidence and removed the bar of the Dead Man’s Act (Ill Rev Stats 1967, c 51, par 2), and cited Illinois Cent. R. Co. v. Nowicki, 148 Ill 29, 34, 35 NE 358 (1893); Randolph v. New York Cent. R. Co., 334 Ill App 268, 275, 79 NE2d 301 (1948), and other cases.

The plaintiff contends that this issue has been waived by the failure of any of the defendants to raise this point in their post-trial motions. Despite the arguments of the defendants’ counsel to the contrary, we do not agree that this error, urged on appeal, was presented in the post-trial motion. Counsel for the defendants argue that the allegations in the post-trial motion, that there were eyewitnesses “who were competent and available, but were erroneously barred from testifying,” preserves the point. However, this particular allegation in the post-trial motion was advanced as a ground for their contention that it was error to permit the expert witness to testify. It was not asserted in the post-trial motion that the evidence of health, sobriety, support and thrift of the decedent, Plank, removed the bar of the Dead Man’s Act and, thus, permitted the testimony of the interested occurrence witnesses on this issue. We conclude that the issue has not been preserved. Ill Rev Stats 1967, c 110, par 68.1; Rogers v. Gehrke, 77 Ill App2d 343, 346, 347, 222 NE2d 351 (1966).

With regard to the reconstruction testimony of the witness, Billings, the court in Miller v. Pillsbury Co., 33 Ill2d 514, 211 NE2d 733 (1965), has set forth the guidelines to be followed by the courts in this State in the admission of such testimony. Miller involved a wrongful death action, and there were no eyewitnesses qualified to testify. The principal factual question for determination was: Which vehicle went over the center line of the highway at the time of the collision? The testimony on this issue was almost exclusively that of an accident reconstruction expert.

With reference to such testimony, the court, on pages 516 and 517 said:

“While there has been a reluctance to permit expert testimony on many matters on the basis that it invades the province of the jury, confuses the issues and usurps the function of the jury, the trend is to permit expert testimony in matters which are complicated and outside the knowledge or understanding of the average person, and even as to matters of common knowledge and understanding where difficult of comprehension and explanation. The jury still may accept or reject such testimony. Thus, in the field of reconstruction of motor vehicles accidents, where there is physical evidence present sufficient to provide the basic data needed, an expert may analyze and reconstruct the occurrence.
<(
“While there is a conflict in authority among American courts on this matter, we are of the opinion that expert testimony on reconstruction of an automobile accident should be admissible where it is necessary to rely on knowledge and application of principles of physics, engineering and other sciences beyond the ken of the average juror. Such evidence does not usurp the province of the jury, since the jury does not have to accept the witness’s opinion. Further, such evidence is essential to aid the jury in drawing the proper inferences from the raw physical facts.”

Here, as in Miller, the defendants’ objections to the reconstruction testimony, in part, is founded upon the argument that there was not sufficient physical evidence to permit the reconstruction. In both cases the witnesses relied heavily upon photographs. In the instant case, the photographs upon which the witness relied had been admitted into evidence. There was adequate testimony to confirm that the damage, to the vehicles exhibited by the photographs, was that occasioned by the accident. There was adequate proof that the skid marks displayed in the photographs, likewise, were those resulting from the accident. The photographs were proper subjects to be used by the witness as a partial basis for this reconstruction. Miller v. Pillsbury, supra, 517.

The witness further detailed his personal observations of the Buick and the scene of the accident, the photographs taken by him, the use of these in measuring and confirming skid marks, the procedures and methods used in arriving at his conclusions, and the matters upon which he relied for his conclusions. We believe that the witness testified concerning sufficient factual data to constitute an adequate foundation for his opinion. The trial court did not err in exercising its discretion by admitting this testimony. Werner v. Illinois Cent. R. Co., 309 Ill App 292, 304, 33 NE2d 121 (1941).

Our earlier comments, with regard to the absence of competent eyewitnesses who saw the entire incident sufficiently to describe it in any detail, are applicable as well to the defendants’ contention that the reconstruction evidence should not have been admitted because of the presence of eyewitnesses. There were no qualified eyewitnesses who could testify relative to paths of travel of the three cars in question prior to the impact. It has been held proper to admit expert opinion testimony on behalf of the plaintiff, when he was an occurrence witness, but could not testify relative to what, in fact, had occurred. Mack v. Davis, 76 Ill App2d 88, 93, 94, 221 NE2d 121 (1966).

The combination of the Dead Man’s Act, and its prohibitions, with the admission of expert reconstruction testimony on behalf of one asserting the benefits of the Act, tends to produce a somewhat unfair circumstance with reference to informing the jury of what actually happened. We are not unaware of the pitfalls and dangers inherent in permitting such expert testimony, particularly when rebuttal, other than by additional expert testimony, is barred. In a situation such as the case at bar, the Dead Man’s Act is first employed to bar the testimony of eyewitnesses, and the absence of competent eyewitnesses is then advanced as justifying the testimony of an expert with reference to what happened.

It may well be the better practice, in a situation such as this, to permit the testimony of interested eyewitnesses if the party barring such testimony presents an expert to give his opinion of what happened. In such a case, the testimony of interested eyewitnesses could then be admitted, not as a basis to strike the testimony of the expert, but as evidence for the jury to weigh along with that of the expert. In a case such as the one at bar, the jury could then determine whether it thought the testimony of all four interested persons — which would have indicated that the Mustang at no time passed the Lincoln, and that the Buick was passing and in the eastbound lane — was worthy of more credence than that of the expert. Our concern over the result under the present state of the law is that an expert, who did not witness the incident and, yet, who is apt to be placed in high esteem by the jury because of his credentials, is permitted to testify, without contradiction, with reference to what supposedly happened.

However, it is clear, under existing law, that such testimony is favored and may not be a basis to remove the bar of the Dead Man’s Act. Miller v. Pillsbury, supra.

The defendants contend that the plaintiff’s evidence consisted of circumstantial evidence from which facts establishing the absence of negligence of the defendants or the absence of due care of the decedent, Plank, could be inferred with equal certainty. From this they argue that the existence of a fact may not be inferred from evidence when the existence of another inconsistent fact can equally be inferred from the same evidence; and that in such case, the jury may not be permitted to speculate as to which of the facts should be inferred. They cite: Tiffin v. Great Atlantic & Pacific Tea Co., 18 Ill2d 48, 60, 61, 162 NE2d 406 (1959); Commerce Union Bank v. Midland Nat. Ins. Co., 53 Ill App2d 229, 239, 240, 202 NE2d 688 (1964); McKinney v. Illinois Power Co., 26 Ill App2d 193, 203, 204, 167 NE2d 249 (1960), which cases so hold.

However, in view of the testimony of the deputy sheriff relative to the skid marks; that of the witness, Willgeroth, as to the comments of his family concerning skid marks and his examination of them the following day; the testimony of Billings that the type of marks indicated an impact; and the testimony of the employee of the sheriff, that there was no other report of an accident at this location in the sheriff’s records for the month immediately preceding or following the date of the accident, we do not agree that it is equally as reasonable to assume that the skid marks were made by vehicles other than those involved in the accident.

The witness, Billings, testified concerning the travel paths of the various cars and gave a most detailed and adequate justification for his conclusion. If the jury were to accept his calculations and explanations, as it apparently did, there could be no verdict other than for the plaintiff. We recognize that the plaintiff’s theory of the case cannot be established by circumstantial evidence unless the facts relied on are of such nature and are so related to each other that it is the only conclusion that can be drawn from them. But proof of such facts may be made by circumstantial as well as by direct evidence. A greater or less probability leading, on the whole, to a satisfactory conclusion is all that can reasonably be required to establish controverted facts. Ohio Bldg. Safety Vault Co. v. Industrial Board, 277 Ill 96,102, 103, 115 NE 149 (1917). The court properly submitted the case to the jury.

The trial court did not give an instruction tendered by the defendant, Holman, with regard to impeachment by prior inconsistent statements. The tendered instruction was intended to relate to the testimony of Billings. The defendant contended that Billings made prior statements inconsistent with his trial testimony, both as to not using the police report as a basis for his reconstruction and as to the skid marks being such that they could not have been made without the occurrence of a collision. A review of the testimony convinces us that he did not previously testify or indicate that he used the police report in making his reconstruction. Likewise, his testimony at the trial was that the nature of the skid marks of the Lincoln were such that they could not have been made without a collision. In his deposition he testified that the nature of the Mustang’s skid marks were such that they could have been made without a collision. There is nothing in this testimony which would warrant giving the instruction on impeachment.

The refusal of the trial court to give the tendered instruction relating to sudden emergency was not error. It is recommended in the Illinois Pattern Jury Instructions that such an instruction not be given. IPI No. 12.02. We are not persuaded that the committee recommendations were wrong or that it was error to refuse to give such an instruction in the case at bar.

We have reviewed all of the testimony in this case. It might be that if we were the trier of fact, we would have reached a different conclusion, but that is neither our duty nor privilege. The trial judge, who saw and heard the witnesses, upheld the verdict of the jury. We cannot say that he was wrong or that the jury’s verdict was palpably erroneous and wholly unwarranted.

Likewise, we cannot say that the verdict or the judgment entered thereon was contrary to the manifest weight of the evidence. Payne v. Kingsley, 59 Ill App2d 245, 252, 207 NE2d 177 (1965). In our opinion, the evidence is neither so totally inadequate as to require that a judgment be entered notwithstanding the verdict nor so frail as to exact a finding that the verdict is against the manifest weight of the evidence, or that the evidence will not support the verdict. We find no error in the trial proceedings, and the judgment, accordingly, is affirmed.

Judgment affirmed.

ABRAHAMSON and SEIDENFELD, JJ., concur.


author: ALLOY, J.

text:
    Margaret H. Brown, Plaintiff-Appellee, v. City of Joliet, a Municipal Corporation, Maurice Berlinsky, as Mayor, and Sam Chuk, Richard Curran, Ned Grabavoy, William Wilson, Earl J. D’Amico, and Eugene F. Duff, as City Councilmen of City of Joliet, Defendants-Appellants.
    Gen. No. 68-76.
    Third District.
    April 15, 1969.

      Mullen & Harmon, of Joliet, for appellants.
    Schenk, Dimas and Brown, of Joliet, for appellee.
   ALLOY, J.

Margaret H. Brown, plaintiff, as the owner of a tract of land in a residential area of Joliet, Illinois, sought to subdivide the tract into lots for development into home sites. In November of 1965 she filed a preliminary plat of the tract with the Planning Commission which she later altered by request and filed again in May of 1966. On May 25, 1966, the Planning Commission of the City of Joliet, following a hearing in regard to the approval of the plat, suggested changes which were made by the plaintiff. A further hearing was held on July 28, 1966, and the Planning Commission then recommended that the approval of the plat be denied. While the plat satisfied almost all of the requirements of the City of Joliet for recording of such plat, the Planning Commission concluded “however, the problem of drainage still exists.” In reasons assigned for denying acceptance of the plat, the Planning Commission specifically found that land of the objectors lying to the south of the area in question is subject to flooding problems periodically and that development of this area would only intensify or increase the threat of flooding problems, until such time as adequate storm sewers are installed in the area. It was pointed out by the Commission that the only existing storm drains in the area empty into combination storm and sanitary sewers which become overloaded during moderately heavy rainfall and that sewage backup and basement flooding results. The Commission had concluded that improvement of any of the lots as proposed would intensify the danger to adjacent developed property. The Commission held that the plat should be denied until such time as the storm drain trunklines in Midland Avenue be installed, as shown by the master plan relating to storm sewers or until other acceptable provisions are made for storm water runoff from this property.

Under the terms of 1967 Ill Eev Stats, § 11-12-8 of chapter 24, it is specifically provided that cities may by ordinance provide for the approval of plats and that the cities can require that the proposed plat conform to the official city map and all applicable municipal regulations, including showing proposed locations of sewers and storm drains. The statute provides that corporate authorities are to approve the plat within 60 days of the filing of the last required document, and then concludes specifically, “if the corporate authorities fail to act upon the final plat within the time prescribed, the applicant may, after giving five days’ written notice to the corporate authorities, file a complaint for summary judgment in the Circuit Court and upon showing that the corporate authorities have failed to act within the time prescribed, the court shall enter an order authorizing the Recorder of Deeds to record the plat as finally submitted without the approval of the corporate authorities. A plat so recorded shall have the same force and effect as though that plat had been approved by the corporate authorities.”

By its Municipal Code, the City of Joliet provided, with respect to drainage, that “every subdivision shall be provided with storm water sewage or surface drainage system adequate to serve the area being platted and otherwise meeting the approval of the City Engineer. Such sewerage or drainage system shall be designed in the light of advice which the City Engineer shall supply in regard to the method or means of disposing of the storm water off the area being platted.”

A later ordinance passed in 1967 provided, with respect to storm drains, that “Every subdivision shall be provided with a storm water or surface drainage system adequate to serve the area being platted and in conformance with the master storm drainage plan of the water shed of which it is a part.”

When the preliminary plat was presented to the City Council in August of 1966, the Council passed a motion to table action on the approval of such final plat until an election was held for the formation of a certain water protection district and that “by the election, such district is formed.” In September of 1966, plaintiff filed a five-day notice under the Statute and on October 6, 1966, plaintiff filed suit requesting that the plat be recorded without approval of the city authorities and that a writ of mandamus be issued as against the city requiring approval of the plat.

Pursuant to a pretrial conference, plaintiff filed a final plat with the City on March 27, 1967. The final plat was submitted to the Planning Commission which denied approval “for the same reasons that approval of the preliminary plat was denied.” On July 11, 1967, the final plat was submitted to the City Council which denied approval of the final plat by passing a motion to concur in the recommendations of the Planning Commission. At the hearing, discovery procedure by both parties disclosed that 44 plats had been approved since 1962, but none of such plats contained specifications for installing storm sewers. There is no showing, however, that the sewer arrangements as to such plats were not adequate or were not in compliance with municipal regulations. The record also discloses that a west side storm sewer plan, which provided for a trunk storm sewer through the area which would benefit the property in question, had been proposed but there had been no action on it by the City Council. There was a showing also that, as a temporary expedient, the City had suggested the construction of a retention basin which would occupy about six of plaintiff’s proposed lots.

Upon presentation of the cause, the trial court concluded that no material issue of fact existed and that summary judgment was appropriate. The court concluded that the city was unreasonable in refusing approval of the plat and that plaintiff was deprived of the use of her land unconstitutionally. A writ of mandamus was awarded directing the city to approve the final plat. The city has appealed from such judgment order and writ and seeks reversal of the judgment order and requests that the mandamus writ be quashed.

It is clear that the provisions of the Illinois Statutes authorize cities to pass ordinances which require that before a subdivision plat can be recorded, there must be a showing on the plat of adequate water drainage for the area platted (1967 Ill Rev Stats, c 24, § 11-12-8). It is clear that, also, under the statute, municipalities may make regulations which must be met before the plat can be filed, including regulations concerning water drainage. There is likewise a presumption in favor of the validity of any such ordinance (Palangio v. City of Chicago, 23 Ill 2d 570, 179 NE2d 663).

In the cause before us, the City of Joliet had a 1962 ordinance which provided that a subdivision must be shown to have “storm water sewage or surface drainage system” adequate to serve the area being platted, and a later ordinance, in 1967, provided that “storm water or surface drainage system” in a proposed subdivision must be adequate to serve the area being platted. Since both of these ordinances contained virtually the same requirement, it is immaterial whether the 1962 or 1967 ordinance applies.

The record discloses that plaintiff made no showing, by her plat or other documents filed with the Planning Commission and the City Council, that she had made adequate provision for drainage of the platted area. It is also apparent from the record that the Planning Commission and the City of Joliet complied with the statute in setting forth the reasons for disapproval of the plat as required by statute, and that the Planning Commission and the City disapproved the plat because of lack of adequate storm drainage facilities.

The basic issue is whether the action of the City Council (in determining that plaintiff’s plat was not in conformity with the City Ordinance) was a proper exercise of a discretion vested in the City Council under the acts and precedents in this case, so that the writ of mandamus was inappropriate in the present action. Mandamus may not be used to force a City Council to exercise its discretion in a particular manner unless the City Council has abused its discretion (Templeman v. City of Rochelle, 52 Ill App2d 201, 201 NE2d 862; People ex rel. Ammann v. Dipper, 392 Ill 38, 63 NE2d 870). If there is any doubt as to the propriety of the exercise of the discretion, the courts favor a denial of a writ of mandamus (MacGregor v. Miller, 324 Ill 113, 118, 154 NE 707). In the MacGregor v. Miller case, supra the court stated that the courts are so careful of encroaching in any manner upon the discretionary powers of public officials, that if any reasonable doubt exists as to the question of discretion or want of discretion, courts will hesitate to interfere. It is likewise basic that before a writ of mandamus should issue, a petitioner must establish every material fact necessary to show the plain duty of the respondent to act as requested, before the courts will interfere. No intendments are indulged in to support the issuance of a writ (People ex rel. Pignatelli v. Ward, 404 Ill 240, at 244, 88 NE2d 461).

Relating the foregoing principles to the cause before us, the fundamental question is whether the City Council abused its discretion in refusing to file the plat. The record discloses that there was sufficient evidence at the hearing before the Planning Commission and again when the preliminary and final plats were submitted to the City Council to permit the Council to determine whether or not plaintiff had complied with the City Ordinance with respect to the handling of surface water and drainage. There was a showing in the record of flooding of basements in the adjacent area and a backup of sanitary sewer water along with the storm sewer water as both systems were connected together. It is also apparent that this presented a serious health hazard since it did not take an unusual rain to cause the flooding condition. The evidence disclosed that to allow the development of the plaintiff’s area and permit it to be subdivided without adequate provision for drainage of surface water, would increase the drainage problem in the surrounding areas and would not provide proper drainage for the newly-subdivided area itself.

In asserting that the ordinance is unfair and unconstitutional as applied to her property, plaintiff has argued that 44 plats had been approved in Joliet in recent years and that none of them required installation of any facilities for taking care of storm water. There was no showing, however, that in any of these 44 previous plats so approved, there was a problem with respect to storm water drainage which was not adequately handled by the existing system or by drainage shown in the plats. The assertions of plaintiff actually are related to the problem which was discussed in City of Decatur v. Chasteen, 19 Ill2d 204, page 210, 166 NE2d 29, where the court says:

“The fact alone that the ordinance may operate to impose burdens or restrictions on the property which would not have existed without the enactment of the ordinance is not determinative of the question of its validity. (Miller Bros. Lumber Co. v. City of Chicago, 414 Ill 162.) The privilege of every citizen to use his property according to his own will is both a liberty and a property right, but these rights are always subordinate to the interests of the public welfare.”

It appears from the record that the only benefit to plaintiff is an economic gain from the sale of her lots and possibly the avoidance of an economic loss thereon, whereas the public loss might well result in sewer water backing up in people’s homes in the area. The public gain, therefore, in enforcing the ordinance could reasonably have been determined to outweigh plaintiff’s loss.

Plaintiff argues forcefully that the City is attempting, illegally, to condemn a portion of her property due to a condition that was not entirely created by her subdivision. In Pioneer Trust & Savings Bank v. Mount Prospect, 22 Ill2d 375, 379-80, 176 NE2d 799, the court stated:

“We further observed: ‘But because the requirement that a plat of subdivision be approved affords an appropriate point of control with respect to costs made necessary by the subdivision, it does not follow that communities may use this point of control to solve all of the problems which they can foresee. The distinction between permissible and forbidden requirements is suggested in Ayres v. The City Council of Los Angeles, 34 Cal2d 31, 207 P2d 1, which indicates that the municipality may require the developer to provide the streets which are required by the activity within the subdivision but can not require him to provide a major thoroughfare, the need for which stems from the total activity of the community.’ It is in the light of these basic principles that the reasonableness of the requirement sought to be imposed by the defendant village must be determined. If the requirement is within the statutory grant of power to the municipality and if the burden cast upon the subdivider is specifically and uniquely attributable to his activity, then the requirement is permissible; if not, it is forbidden and amounts to a confiscation of private property in contravention of the constitutional prohibitions rather than reasonable regulation under the police power.”

To the same effect is Exchange Nat. Bank of Chicago v. Lake Forest, 40 Ill2d 281, 239 NE2d 819, where the court stated (at page 285):

“It is unquestioned that a municipality appropriately authorized can require compliance with reasonable regulatory conditions preliminary to its approval and recording of plats for the subdivision of lands. And a requirement that a subdivider dedicate land for or even improve streets as a condition to the municipality’s acceptance can in appropriate circumstances qualify as reasonable regulation (see Petterson v. City of Naperville, 9 Ill2d 233)

In that case, the court found that the need for the new public streets was not specifically and uniquely attributable to any activity which would arise from plaintiff’s re-subdivision of a 25-acre property into two lots. In the instant case, however, the contention of the plaintiff in this cause that she is being forced to build or provide a storm sewer for the whole general area and not just her platted area, was not sustained by the record. Neither the Planning Commission nor the City Council set forth any requirement that plaintiff construct any specific drains or transit sewers for the benefit of the area. The Council merely refused to approve the plat until the question of storm water drainage was resolved on plaintiff’s plat. The storm water problem which would be created in this cause would be uniquely attributable to plaintiff’s subdividing and development. It was true that at one time the Council had suggested that plaintiff consider constructing a 170' x 120' holding pool which would take up the space of six lots, but this was merely in the form of suggestion and was not made a requirement for having the plat approved. We must, therefore, conclude that the theory of illegal condemnation cannot be applied, reasonably, to the facts in the instant case.

We likewise conclude that the doctrine of estoppel does not apply in the instant case. Neither the City of Joliet nor the Planning Commission nor any officer or officers did anything to lead plaintiff to believe her plat would be recorded and approved. The plat was turned down in the first instance by the Planning Commission and later by the Council and the final plat was rejected by both bodies. There was no showing made that plaintiff did anything in reliance upon the act of the City or any official of the City. Therefore, the suggested doctrine of estoppel as against the municipality would not apply (Dumond v. City of Mattoon, 60 Ill App2d 83, 89, 207 NE2d 320).

We must, therefore, conclude that the writ of mandamus was improperly issued in this case. This cause will, therefore, he reversed with directions to the Circuit Court of Will County to quash the writ of mandamus and to allow defendants’ motion to strike the complaint for summary judgment.

Reversed and remanded with directions.

STOUDER, P. J. and RYAN, J., concur.