text:
    (Nos. 56535, 56558 cons.
    STEVEN E. FLEMING, Appellant and Appellee, v. THE INDUSTRIAL COMMISSION et al. (International Harvester Company, Inc., Appellee and Appellant).

      Opinion filed March 25, 1983.

      William H. Knuppel, of Lemmer, Boggs, Knuppel & Krebaum, P.C., of Havana, for appellant.
    Henry D. Noetzel & Associates, Ltd., of Peoria (John E. Mitchell, of counsel), for appellee.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

On July 25, 1977, petitioner, Steven E. Fleming, filed an application for adjustment of claim alleging a loss of hearing in both ears due to exposure to loud noise over a four-year period while in the employ of respondent, International Harvester Company. The application designated December of 1970 as the “Date of Accident, Last Exposure, Disability or Death.” At the arbitration hearing petitioner moved to amend the application, stating that the date designated as “Date of Accident, Last Exposure, Disability or Death” was intended to state the beginning of exposure, and that the exposure continued for nine years, rather than four. Respondent objected to the amendment, and the arbitrator took the motion under advisement.

Respondent moved that the claim be dismissed for want of jurisdiction on the ground that the application referred to a date of disability or last exposure of December 1970, but was not filed until July 25, 1977. Petitioner responded that a definite time, place, or event could not be fixed as causing petitioner’s injury and that it was a continuing type of injury.

The arbitrator, finding that disablement did not, as required by the statute, occur within one year from the date of last exposure to the hazards of an occupational disease, dismissed the claim and denied compensation. The record does not contain a ruling on the motion to amend the application for adjustment of claim.

The decision of the Industrial Commission on review includes the following findings of fact and conclusions of law:

“1. The Commission finds that Petitioner has established an exposure in excess of 90 dBA for an eight hour day or the time weighted equivalent. The OSHA noise survey reflects that Petitioner worked in areas with noise greater than 90 dBA. Respondent did not introduce any evidence contrary to Petitioner’s claim of exposure to excessive noise.
2. The Commission finds that exposure to excessive noise at work has contributed to Petitioner’s existing hearing loss.
3. The Commission finds that Petitioner’s Application for Adjustment of Claim was filed prematurely. The Occupational Disease Act requires that a date of last exposure be established. Ch. 48, §172.36(d). Petitioner has not alleged or proven a date of last exposure to the disabling cause. In fact, Petitioner states that a date of last exposure can’t be fixed because it is a continuing thing (arb. 9). Petitioner’s disability is constantly changing due to the continuing exposure to the noise. This prevents the determination of the extent of permanent loss of hearing. Until Petitioner can establish a date of last exposure the claim for compensation for permanent loss of hearing is denied.
IT IS THEREFORE ORDERED BY THE COMMISSION that Petitioner was exposed to a disabling cause but that Petitioner failed to prove a date of last exposure therefore claim for compensation herein is denied.”

On certiorari, the circuit court of Fulton County confirmed, and both parties appealed (87 Ill. 2d R. 302(a)).

The parties disagree whether petitioner may be awarded compensation for a present work-related hearing loss when he continues to be exposed to the disabling cause. Respondent, citing repeated references in the Act to such a date, contends that a date of “last exposure” must be established. Respondent argues that since petitioner continues to be exposed to the disabling cause, he cannot prove a date of “last exposure.” Respondent argues, too, that a date of last exposure is necessary to prevent petitioner’s filing multiple claims during his exposure to the noise “until he is finally able to prove his case.” Such a situation, it argues, would subject employers to repeated trials and burdensome legal expenses. Petitioner argues that to adopt respondent’s position would force him to either leave his present employment or wait for his employer to fire him or transfer him away from the noise before he could recover for a disability that has already accrued.

We are of the opinion that an award to petitioner for his hearing loss is not precluded merely because he continues to be exposed to the disabling cause. Disablement is defined in the Workers’ Occupational Diseases Act as “an impairment or partial impairment, temporary or permanent, in the function of the body or any of the members of the body ***.” (Ill. Rev. Stat. 1977, ch. 48, par. 172.36(e).) Petitioner’s impaired hearing falls within this category of “disablement.” The Commission denied petitioner’s claim because “petitioner’s disability is constantly changing due to the continuing exposure to the noise.” The Act, however, provides for recovery without a finding of the extent of permanent loss. Under section 19(b) of the Workers’ Occupational Diseases Act, “The Arbitrator or committee of arbitration may find that the disabling condition is temporary and has not yet reached a permanent condition and may order the payment of compensation up to the date of the hearing, which award shall be reviewable and enforceable in the same manner as other awards, and in no instance be a bar to a further hearing and determination of a further amount of temporary total compensation or of compensation for permanent disability, but shah be conclusive as to aE other questions except the nature and extent of such disability.” (Ill. Rev. Stat. 1977, ch. 48, par. 172.54(b).) It appears that the findings in the Commission decision, if insufficient to serve as the basis for an award for the permanent loss suffered, were clearly adequate to support an award under section 19(b). Under the circumstances, the Commission erred in denying compensation because petitioner continued to be exposed to the disabling cause.

Respondent contends that petitioner should not be permitted to amend his application for adjustment of claim and that his claim should be denied because it was not timely filed. (Ill. Rev. Stat. 1977, ch. 48, par. 172.43.) Respondent argues that the amendment offered at the hearing deprived it of its right to have sufficient information concerning the nature of the claim to properly defend it. Petitioner contends that amendments should be liberally allowed, and that respondent, by its participation in prearbitration discovery procedures, was fully apprised of the nature of the claim.

We agree with petitioner that he should be permitted to amend his application. An application for adjustment of claim under the Workers’ Occupational Diseases Act (Ill. Rev. Stat. 1979, ch. 48, par. 172.1 et seq.) is “in the nature of a pleading.” (Consolidated Coal Co. v. Industrial Com. (1926), 320 Ill. 281, 283.) Under section 46 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 46) pleadings were to be liberally amended. The rules for applications for adjustment of claim are not to be as formal as the rules of pleading (Consolidated Coal Co. v. Industrial Com. (1926), 320 Ill. 281, 283); the amendment to the application should have been allowed.

The record shows that respondent was sufficiently informed of the period of time toward which petitioner’s evidence would be directed. The evidence deposition of Dr. Alan Rubenstein taken on September 15, 1978, contained repeated references to the time period of 1970 through 1977. A subpoena served upon respondent in September of 1977 requested the results of audiograms performed on the petitioner within the past 12 months. Petitioner also requested, through discovery, any noise-level readings taken by respondent in its own plant between 1970 and 1978.

Respondent contends that the arbitrator erred in admitting into evidence petitioner’s exhibits Nos. 5, 6, 8 and 9. These exhibits are relevant to the noise levels inside respondent’s plant. Exhibits Nos. 5, 8 and 9 were noise surveys, prepared by public officials in the performance of their official duties, and thus were admissible. (People ex rel. Wenzel v. Chicago & Northwestern R.R. Co. (1963), 28 Ill. 2d 205, 212.) Petitioner’s exhibit No. 6 was a report prepared by a union official. It was hearsay and should not have been admitted. However, the content of petitioner’s exhibit No. 6 was cumulative, and the error was harmless.

Respondent contends that the decision of the Industrial Commission was against the manifest weight of the evidence. The evidence showed that throughout the period of petitioner’s employment there were noise-level readings in respondent’s plant high enough to have contributed to petitioner’s existing hearing loss. The testimony showed exposure by reason of work assignments in close proximity to the sources of the noise. Offered in evidence were audio-grams showing petitioner’s loss of hearing at various times throughout the period of his employment. Medical reports state that the physicians were of the opinion that exposure to the hazard might or could have caused the hearing loss. On this record we are unable to say that the decision of the Commission is contrary to the manifest weight of the evidence.

The Industrial Commission found that exposure to excessive noise at work contributed to petitioner’s existing hearing loss and that he was exposed to a disabling cause. It does not appear from the record that it cannot be determined that petitioner’s disablement has not yet reached a permanent condition. The judgment of the circuit court is therefore reversed and the cause is remanded to the Industrial Commission with directions to determine whether the condition of disablement has reached a permanent condition and, if it has attained such permanent condition, to award compensation in an appropriate amount. In the event that it has not as yet reached a permanent condition, the Industrial Commission is directed to make findings and enter an award in accordance with the provisions of section 19(b) of the Workers’ Occupational Diseases Act (Ill. Rev. Stat. 1977, ch. 48, par. 172.54(b)).

Judgment reversed; cause remanded, with directions.


source: Caselaw Access Project

author: JUSTICE GOLDENHERSH

license: Public Domain

text:
    (No. 56879.
    ILLINOIS FORGE, INC., Appellee, v. THE INDUSTRIAL COMMISSION et al. (Arlyn Sayers, Appellant).

      Opinion filed March 25, 1983.

      Raymond Whitney, David L. Gore, and Kenneth B. Wolfe, Jr., of Kleiman & Whitney, of Chicago, for appellant.
    Ward, Ward, Murray, Pace & Johnson, of Sterling (David E. Murray and Joseph E. Heaton, Jr., of counsel), for appellee.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

On September 1, 1976, petitioner, Arlyn Sayers, filed two applications for adjustment of claim with the Industrial Commission. One was brought under the Workmen’s Compensation Act (Ill. Rev. Stat. 1975, ch. 48, par. 138 et seq.) and the other was brought under the Workmen’s Occupational Diseases Act (Ill. Rev. Stat. 1975, ch. 48, par. 172.36 et seq.). Both applications sought compensation for petitioner’s loss of hearing and alleged that the hearing loss arose out of and in the course of his employment with respondent, Illinois Forge, Inc., on June 17, 1976. The application for adjustment of claim filed under the Workmen’s Compensation Act and the decisions of the arbitrator and the Industrial Commission in that case are not contained in the record, but the parties are in agreement as to what occurred. An arbitrator for the Industrial Commission found that petitioner suffered a compensable hearing loss of 31% in his right ear and 26% in his left ear and awarded compensation accordingly under the Workmen’s Compensation Act. The arbitrator dismissed the application for recovery under the Workmen’s Occupational Diseases Act. On review, the Industrial Commission set aside the decision of the arbitrator in the occupational diseases case and found that petitioner suffered a compensable hearing loss of 15.16% in his right ear and 24.25% in his left ear and awarded compensation accordingly. The circuit court of Whiteside County set aside the decision of the Commission, and petitioner appealed (87 Ill. 2d R. 302(a)).

Petitioner testified that he worked for respondent from October 1, 1955, to June 17, 1976, as a “hammer man,” which entailed putting steel between two dies so that a 2,500-pound hammer could drop down on the steel and forge it. When asked what happens when the hammer strikes the steel, petitioner replied, “It makes a lot of noise.” Petitioner estimated that the hammer dropped between 15 and 30 times per minute, and that there were 13 other hammers in the shop which operated in the same manner. Petitioner testified that from the first day on the job he noticed a ringing in his ears and that he still has ringing in his ears which makes it difficult for him to understand people when they speak to him, especially over the telephone. Petitioner testified that he left respondent’s employ on June 18, 1976, to work as a salesman for a feed company for about six months and then became a district sales representative for Lutheran Brothers Life Insurance Company.

Charles Russell, called by respondent, testified that he was a consultant for the Philadelphia firm of Hearing Conservation Noise Control. He testified that the principal officer of the corporation is an otolaryngologist who has been engaged in the field of hearing loss and hearing conservation for 30 years. He stated that respondent had engaged his firm to establish and monitor an effective hearing-conservation program which would include the training of audiometric technicians, making recommendations regarding the acquisition of appropriate hearing-testing equipment, calibrating and certifying the accuracy of that equipment and the test procedures, and reviewing and evaluating the hearing records on the employees by doctors and audiology staff. Russell testified that he had been with the firm for four years and was currently the director of field activities and that his duties included the training of audiometric technicians for his company’s clients so that their employees’ hearing could be monitored. He stated that respondent had a Bell Tone Model 9D air-conduction audiometer and a 400 A audiometric testing booth, which were installed in 1974. Russell testified that he checked the calibration and the functional operation of this equipment at least annually, and usually more often, and that he also tested the ambient noise level in the testing booth. He testified that he trained two employees for respondent to test the hearing of the hammer men at respondent’s plant, and explained that the training consisted of a standard 20-hour course which was administered at respondent’s plant. He stated that he was trained by audiologists, apparently one of whom was the director of training for the program which he attended.

Dr. M. Reese Guttman testified as a joint witness. Dr. Guttman received his medical degree from the University of Illinois School of Medicine in 1924. While it is unnecessary to detail Dr. Guttman’s qualifications, he testified that he did a combined residency and preceptorship in otolaryngology under a former president of the American Board of Otolaryngology, did post-graduate work at several European universities, taught otolaryngology at the University of Illinois and later at Loyola University, had published a number of articles dealing with hearing impairment, had lectured on many occasions to various groups, including the Illinois Association of Compensation Attorneys, and had been practicing for 52 years. Dr. Guttman testified that he examined petitioner, and he described in detail the various tests he performed on petitioner to determine the extent of his hearing loss, one of which was an audiometric examination. Dr. Guttman testified that a certificate of standardization and calibration had been issued for his audiometer on May 12, 1977, and that a certificate certifying his sound room as meeting OSHA’s standards had been issued that same day. When asked whether removal from a noise environment could have an effect upon a hearing loss, Dr. Guttman explained that hearing could improve but that the extent of improvement depended on the length of the exposure to the intolerable noise environment. Specifically, Dr. Guttman stated:

“*** the degree [of improvement] would depend upon how long the exposure had been in years or decades and, in other words an individual who’s only been exposed for a comparative short period of time, measured in months and years after you remove them from the environment, he might have a substantial recovery in his hearing ability, but an individual who would be employed in a period of time measured in years and decades, removal for a period of at least six months might result in comparatively minor improvement.”

Based on his June 28, 1977, examination of petitioner, Dr. Guttman found that petitioner had a hearing loss of 31% in the right ear and 26% in the left ear. An examination performed at respondent’s plant by technicians trained by Russell indicate that on May 6, 1975, petitioner had a hearing loss of 51.56% in the right ear and 54.60% in the left ear. Results of the May 3, 1976, test performed by respondent’s employees reveals that petitioner had a 66.72% loss in his right ear and a 78.86% loss in his left ear. Dr. Guttman, when asked about the differences in the results of these tests, emphasized that his equipment had been properly certified.

Petitioner contends that the decision of the Industrial Commission was not contrary to the manifest weight of the evidence and in setting it aside the circuit court erred. Petitioner suggests that the circuit court may have erroneously concluded that the Commission’s decision was incorrect because when Dr. Guttman’s findings are compared with respondent’s employees’ findings, it appears that petitioner’s hearing had improved since 1975. Petitioner contends that from the undisputed evidence the Industrial Commission could have drawn the inference that the discrepancy in findings between the tests performed by Dr. Guttman and the tests performed by respondent’s employees arose from the fact that Dr. Guttman used better equipment and was more qualified to perform the audio-grams than were respondent’s employees. Petitioner contends that the Industrial Commission could have drawn the inference that respondent’s employees’ tests were accurate in showing the change in condition of petitioner’s hearing loss, but were inaccurate to the extent that they purported to reflect the extent of the hearing loss based on the accepted standard medical formula used by practicing ear, nose and throat specialists. Petitioner argues that the Industrial Commission’s decision to determine the extent of his hearing loss from respondent’s records was not against the manifest weight of the evidence.

Respondent argues that “in a case such as this where there appears to be no disputed facts, the issue on appeal involves a question of law, and in such a case a court is not bound by a decision of the Industrial Commission.” Respondent also argues that the record shows that the employees of respondent who tested petitioner were “certified” and the machines used were properly calibrated, and thus there is no reason to believe that the results of these tests were not accurate.

We agree with petitioner that this case involves the resolution of conflicting inferences which can be drawn from undisputed evidence. We also agree that the Commission’s resolution of these conflicting inferences was not against the manifest weight of the evidence. The Commission could have drawn the inference from the respective qualifications of Dr. Guttman and respondent’s employees and the different equipment utilized in the testing procedure that Dr. Guttman’s tests more accurately reflected the extent of petitioner’s hearing loss. The Commission could have also drawn the inference that while the audiometric tests conducted by respondent’s employees were not accurate estimates of petitioner’s hearing loss, they did accurately reflect the change in the extent of petitioner’s hearing loss. In light of Dr. Guttman’s explanation that removal from long-term exposure measured in terms of years and decades would only result in “comparatively minor improvement” in a person’s hearing loss, the Commission was entitled to draw the inference that petitioner’s hearing had not improved from the level existing on July 1, 1975. As petitioner noted, the Commission might have believed that petitioner’s ability to work as a salesman and later as a district sales representative after he left respondent’s employ suggests that petitioner’s hearing loss could not have been as extensive as the results of the tests conducted by respondent’s employees indicate. The drawing of factual inferences concerning the nature and extent of disabilities based on medical testimony is peculiarly in the province of the Industrial Commission’s expertise, and nothing in this record suggests that its decision should be disturbed.

Respondent argues that the Industrial Commission erred in awarding the claimant disability based on 100 weeks of disability for each ear rather than on 50 weeks’ disability per ear. Respondent points out that the accident occurred before section 7 was revised to provide 100 weeks’ compensation for the loss of one ear. (1976 Ill. Laws 1681.) Respondent argues that the award of 39.42 weeks of compensation should be reduced to 18.41 weeks of compensation. Petitioner concedes that this argument is correct, but argues that the issue was waived since it was raised for the first time on appeal.

An issue raised for the first time on appeal is ordinarily waived, but the question here is the proper calculation to be made based on the then-controlling statute. Clearly waiver should not apply here.

For the reasons stated, the judgment of the circuit court of Whiteside County is reversed, and the cause is remanded to the Industrial Commission with directions to enter an award based on section 7 of the Workmen’s Occupational Diseases Act as it read on June 17, 1976 (Ill. Rev. Stat. 1975, ch. 48, par. 172.42).

Reversed and remanded, with directions.


text:
    (Nos. 56150, 56152 cons.
    THE CITY OF CHICAGO ex rel. DEMETRI KONSTANTELOS et al., Appellees, v. DUNCAN TRAFFIC EQUIPMENT COMPANY et al., Appellants.-THE CITY OF CHICAGO, Appellee, v. DUNCAN TRAFFIC EQUIPMENT COMPANY et al., Appellants.

      Opinion filed March 25, 1983.

      Sidney J. Hess, Jr., Roger L. Price, and Gary E. Mitchell, of Aaron, Schimberg, Hess, Rusnak, Deutsch & Gilbert, of Chicago, for appellants Duncan Traffic Equipment Company, Jerome J. Robinson, and T. A. Mieczynski.
    James N. Karahalios, of Chicago, for appellant John Geocaris.
    George C. Pontikes, of Foss, Schuman & Drake, of Chicago, for appellee Demetri Konstantelos.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

Demetri Konstantelos (hereafter plaintiff) appealed from the order of the circuit court of Cook County dismissing his action filed as a taxpayer pursuant to section 1 — 5—1 of the Illinois Municipal Code (Ill. Rev. Stat. 1979, ch. 24, par. 1 — 5—1) in the name and for the benefit of the city of Chicago against Duncan Traffic Equipment Company (hereafter Duncan). He also appealed from the order dismissing with prejudice, pursuant to a stipulation between the parties to the suit, the action brought by the city of Chicago against defendant Duncan. The appellate court reversed and remanded (102 Ill. App. 3d 304), and we allowed the petition for leave to appeal of Duncan and two of its corporate officers, and that of John Geocaris, deputy commissioner of the Department of Streets and Sanitation of the city of Chicago.

On April 12, 1979, plaintiff filed this action against Duncan Parking Meter Maintenance Company, Inc. (hereafter Duncan Parking), Jerome Robinson and Ted Mieczynski, as president and vice-president of Duncan Parking, respectively, John Geocaris, deputy commissioner of streets and sanitation, and the treasurer of the city of Chicago in his official capacity. The complaint alleged that defendant, Duncan Parking, had a contract to inspect the city’s parking meters and that it submitted invoices to the city totaling $270,681 for inspections during the months of January and February 1979 which were not in fact performed. The complaint alleged that “near blizzard conditions” prevented inspection of parking meters, that Geocaris, Robinson and Mieczynski were aware that this work was not performed, and that a conspiracy existed among these defendants “whereby Geocaris is to pay all bills submitted by Duncan whether or not Duncan in fact performs services for the city of Chicago.”

On April 23, 1979, Duncan Parking answered the complaint, stating that it had no contract with the city of Chicago to inspect parking meters, and moved to dismiss the complaint. On April 26, 1979, an order was entered giving plaintiff until May 17 to respond to Duncan Parking’s motion to dismiss.

After extensive correspondence and discussion with the office of the corporation counsel, plaintiff, joined by intervenor, Clifford Kelley, a Chicago alderman, on June 12, 1979, filed an amended complaint. Defendant, Duncan, was joined as a party defendant, and it was alleged in the amended complaint that defendant Robinson, president of Duncan, was also the president of Duncan Parking, which contributed financially to Geocaris’ ward organization; that Duncan’s vice-president, Mieczynski, was a financial contributor to Geocaris’ ward organization; that there was a contract between defendant and the city; that invoices for meter inspections for January and February 1979 were submitted to the city although no inspections took place; that all of the defendants except the city treasurer knew that the work was not performed and could not have been performed and that the sworn invoices submitted to the city were false and contained material misrepresentations of fact; that defendant Geocaris gave his approval of these payments despite his knowledge that the sworn invoices were fraudulent, or, in the alternative, Geocaris approved the invoices with reckless disregard as to whether any work was actually performed. The amended complaint prayed, inter alia, for an accounting and for actual and punitive damages against Robinson, Mieczynski and Geocaris.

On May 30, 1979, the city of Chicago filed an action against defendant Duncan alleging that the city had paid Duncan for services which were not performed and seeking judgment “for any and all sums found to have been paid for work reported and billed for by Defendants *** but never actually performed.” It was alleged in the complaint that “[rjecords furnished to the City of Chicago by the First National Bank of Chicago indicate that at least 636 meters located in the metered facilities maintained by the city were not collected during the months of January and February, 1979, despite the fact that meters are to be collected at least once each month”; that the repair and maintenance reports for those same meters indicated that full service was rendered to those meters by Duncan; that comparison of collection reports with Duncan’s maintenance reports would indicate that at least 636 meters were not properly serviced by Duncan; that discovery of Duncan’s books and records was necessary to determine the accuracy of Duncan’s invoices.

On the same date on which his amended complaint was filed, plaintiff filed a motion to consolidate his case with that of the city and to disqualify the office of the corporation counsel from representing the city in this litigation. He also moved that the court appoint plaintiff’s counsel to represent the city in the consolidated cases. The circuit court consolidated the causes “for trial” and ordered that the parties brief the motion concerning disqualification of corporate counsel.

In the motion to disqualify the office of the corporation counsel it was stated that subsequent to the filing of the motion to dismiss the original complaint, plaintiff’s counsel sought to obtain from the city of Chicago’s corporation counsel’s office the name of the corporation, and a copy of the contract providing for the inspection of parking meters in the city of Chicago. On April 26, 1979, plaintiff’s attorney spoke with James Daley, assistant corporation counsel, and asked Daley whether the corporation counsel’s office, without the necessity of a subpoena, would divulge the name of the corporation which inspected the city’s parking meters. Mr. Daley responded that he would call plaintiff’s attorney within a few days. Two subsequent telephone calls elicited essentially the same response, and in a third telephone conversation Mr. Daley suggested that “it would be better” for plaintiff’s attorney to contact Mr. James Arnold, purchasing agent of the city of Chicago. A letter was delivered by messenger to Arnold on May 2, 1979, requesting a copy of the contract and asking that the copy be forwarded by May 7. A copy of the contract was not received by the date requested, so plaintiff’s attorney called Mr. Daley, who replied that he would call back promptly concerning the matter. Plaintiff’s attorney received no response from Mr. Daley, so on May 10, 1979, a subpoena for deposition was served on Mr. Arnold. On May 14, 1979, a contract was delivered to plaintiff’s attorney’s office accompanied by a letter from M. Ellen Sutton, assistant corporation counsel, but the document proved to be the wrong contract. On May 17, 1979, James Daley supplied plaintiff’s attorney with the name of the proper corporation. Plaintiff then filed a motion to dismiss Duncan Parking as a defendant and for leave to file an amended complaint naming the proper corporate defendant.

That same day, plaintiff’s attorney again requested assistant corporation counsel to furnish him a copy of the contract between the city and Duncan. The assistant corporation counsel told plaintiff’s counsel that a copy would be sent to him. Again, no contract was sent to plaintiff’s counsel. Duncan then moved to dismiss the amended complaint on the basis, inter alia, that the amended complaint was barred by the pendency of a prior suit filed by the city of Chicago in the same cause; that the plaintiffs lacked standing because they did not demand that the city of Chicago file an action against defendants, and because the complaint failed to state a proper statutory taxpayers’ action since there was no allegation that any of the expenditures made by the city were without legal authority.

The city filed a request for production of documents seeking detailed information regarding reports and records concerning the inspection and repair of meters during the months of January and February of 1979. Plaintiff filed a request for production of documents, objects and tangible things seeking to discover a wide variety of information including the shareholders, corporate officers and corporate directors of Duncan, their political affiliations and recent contributions to political parties, and all invoices, vouchers, and requests for payment submitted from the date the contract was entered into by defendant Duncan. Duncan objected to plaintiff’s discovery request. Apparently no response was ever made to the city’s request for production of documents.

On September 27, 1979, the circuit court allowed Duncan’s motion to dismiss the amended complaint because it alleged no demand that the city bring the action and ruled that plaintiff’s motion to disqualify the corporation counsel was thus rendered moot. On October 19, 1979, the city and Duncan entered into a stipulation and settlement agreement providing for payment by Duncan to the city of the sum of $5,000. That same day the circuit court dismissed the city’s cause with prejudice subject to and conditioned upon the terms of the stipulation and settlement agreement. Only plaintiff Konstantelos appealed from the order.

Defendants contend that the appellate court erred in holding that plaintiff had standing to bring this action. They argue that plaintiff had no standing to sue in the name and for the benefit of the city of Chicago because plaintiff’s complaint alleges neither that he made a demand on the appropriate officials to sue nor sufficient facts to show that such a demand would have been futile.

Plaintiff contends that while common law taxpayer actions require a prior demand that the proper public official bring suit before a taxpayer may maintain such an action, no such requirement may be read into section 1— 5 — 1 of the Illinois Municipal Code (Ill. Rev. Stat. 1979, ch. 24, par. 1 — 5—1). He notes that “It is the general rule that in the absence of a controlling statute, a demand upon the proper public officers to bring suit in the name of the taxing unit is a condition precedent to the maintenance of a taxpayer’s action.” (74 Am. Jur. 2d Taxpayers’ Actions sec. 31 (1974); see also Reiter v. Wallgren (1947), 28 Wash. 2d 872, 876-77, 184 P.2d 571, 573; Munoz v. Commissioner of Public Lands (1955), 40 Hawaii 675, 690.) Section 1 — 5—1 provides:

“A suit may be brought by any taxpayer, in the name and for the benefit of the municipality, against any person to recover any money or property belonging to the municipality, or for any money which may have been paid, expended, or released without authority of law. But such a taxpayer shall file a bond for all costs, and shall be liable for all costs in case the municipality is defeated in the suit, and judgment shall be rendered accordingly.” (Ill. Rev. Stat. 1979, ch. 24, par. 1 — 5—1.)

Plaintiff argues that since no requirement for a prior demand is contained in the statute, no such requirement exists.

In Metropolitan Sanitary District ex rel. O’Keeffe v. Ingram Corp. (1981), 85 Ill. 2d 458, 468-69, this court held that a prior demand to sue or a showing that such a demand would have been futile was a precondition to a taxpayers’ action. The taxpayers’ action in that case was brought under section 11.22 of the “Purchasing Act for the Metropolitan Sanitary District of Greater Chicago” (Ill. Rev. Stat. 1971, ch. 42, par. 331.22), which makes no mention of the prior-demand requirement. Thus, the lack of an explicit requirement of a prior demand in a statute providing standing for a taxpayer to bring suit in the name and for the benefit of a government entity does not negate that requirement.

The reasons for requiring that a demand be made upon the proper public officials prior to bringing a common law taxpayers’ action apply equally to the bringing of a taxpayers’ action authorized by statute. The enactment of a statute providing standing for a taxpayer to sue does not negate the presumption that public officers, in the absence of any showing to the contrary, are ready and willing to perform their duties. If the demand requirement did not exist for statutory taxpayer suits, overofficious citizens could frustrate the orderly administration of governmental responsibilities, and such citizens would be encouraged to substitute their discretion for that of those to whom the law has confided that discretion. See 74 Am. Jur. 2d Taxpayers’ Actions sec. 31 (1974); see also Williams v. Stallard (1919), 185 Ky. 10, 13-14, 213 S.W. 197, 199; Reiter v. Wallgren (1947), 28 Wash. 2d 872, 877, 184 P.2d 571, 573-74; Farler v. Perry County Board of Education (Ky. App. 1961), 355 S.W.2d 659, 662; Reed v. Cunningham (1905), 126 Iowa 302, 303, 101 N.W. 1055, 1056; Merrimon v. Southern Paving & Construction Co. (1906), 142 N.C. 539, 548-49, 55 S.E. 366, 369; Dunn v. Long Beach Land & Water Co. (1896), 114 Cal. 605, 609-10, 46 E 607, 608.

The appellate court noted that plaintiff had not made a demand as required by our decision in O’Keeffe. The appellate court, however, found that the principles of O’Keeffe were applicable to this case and that numerous instances in the record demonstrated that there was reason to believe that the city of Chicago’s corporation counsel was not adequately representing the public interest. The appellate court concluded:

“On the basis of the whole record as demonstrated by the facts previously stated, there were grounds to believe that the city was inadequately protecting the public interest in the matter. Therefore, the Taxpayer should have remained in the case, and his suit should not have been dismissed even though the Taxpayer, like the taxpayer in O’Keeffe, had not made a demand to sue defendants prior to filing suit as a taxpayer.” (102 Ill. App. 3d 304, 315.)

Defendants argue that O’Keeffe is not authority for the proposition that events occurring subsequent to the filing of a taxpayer’s action may be considered in determining whether it would have been futile to make a demand on appropriate officials to sue. Defendants further contend that, in any event, plaintiff’s complaint contains no allegations concerning the futility of making a demand on the appropriate officials, and thus the circuit court’s dismissal of that complaint was proper.

We agree with defendants that a taxpayer must allege in his complaints facts to show either that a demand had been made and the proper authorities refused to act or which would show that such a demand would have been futile. (People ex rel. Lee v. Kenroy, Inc. (1977), 54 Ill. App. 3d 688, 692; Williams v. Stallard (1919), 185 Ky. 10, 12-16, 213 S.W. 197, 198-200; Reiter v. Wallgren (1947), 28 Wash. 2d 872, 876-77, 184 P.2d 571, 573; Muirhead v. Johnson (1951), 232 Minn. 408, 410-11, 46 N.W.2d 502, 505.) We do not agree, however, with Duncan’s assertions that a taxpayer cannot rely upon events occurring subsequent to the filing of his suit to demonstrate that a demand would be futile and subsequently file an amended complaint. Indeed, this contention was rejected in O’Keeffe, where the taxpayer amended his complaint to set forth reasons why he could maintain his action despite his failure to demand that the district sue the defendant (85 Ill. 2d 458, 466) and this court relied upon events occurring subsequent to the filing of the initial complaint to sustain the circuit court's finding that O'Keeffe had standing to bring his taxpayer’s suit (85 Ill. 2d 458, 468-70). The procedural mistake of failing to make a demand on the proper authorities does not forever preclude a taxpayer from reinstituting his cause of action in the name and on behalf of a governmental entity after his case has been dismissed on the basis that he had failed to make a demand before the filing of the initial complaint. (State ex rel. Braly v. Ford (1941), 189 Okla. 299, 303, 116 P.2d 988, 992.) We perceive of no valid reason why a taxpayer cannot rely upon events occurring subsequent to the initial filing of his complaint to demonstrate that a demand on the proper authorities would have been futile and that those authorities are madequately protecting the public interest.

The circuit court erred in dismissing the plaintiffs cause with prejudice and thus precluding him from filing an amended complaint alleging facts sufficient to establish his standing to bring suit on behalf and in the name of the city of Chicago. It has been repeatedly held that a cause of action, should not be dismissed on the pleadings unless it clearly appears that no set of facts can be proved which will entitle plaintiffs to recover. Fechtner v. Lake County Savings & Loan Association (1977), 66 Ill. 2d 128; Edgar County Bank & Trust Co. v. Paris Hospital, Inc. (1974), 57 Ill. 2d 298; Winnett v. Winnett (1974), 57 Ill. 2d 7; Miller v. DeWitt (1967), 37 Ill. 2d 273.

Although we agree with the appellate court that the circuit court erred in dismissing plaintiffs action on the standing issue, we do not agree that on this record there is no question concerning plaintiffs standing to bring the action. The “facts” shown concerning the effort to obtain the name of the proper defendant and a copy of the contract appear only in the unverified motion to disqualify the corporation counsel from representing the city in this cause. There were no supporting affidavits and no testimony was taken. Admittedly, there was no demand, and the question whether such demand would have proved futile is to be determined by the circuit court upon appropriate pleadings and testimony. On remand, plaintiff will be granted leave to amend his complaint to make allegations concerning the futility of a demand, and that issue may be determined by the circuit court in further proceedings not inconsistent with this opinion.

Defendants contend that the amended complaint did not state a cause of action since it failed to allege that the payments to Duncan were made “without authority of law.” Defendants argue that section 1 — 5—1 of the Illinois Municipal Code permits a taxpayer’s suit only when the municipality has relinquished funds without authority of law and since the monies in this case were paid over pursuant to a validly executed contract, these payments were not released “without authority of law” within the meaning of the statute. Duncan argues that the appellate court has misread plaintiff’s complaint and has created a rule whereby taxpayers can bring suit to question the adequacy of performance under a contract, a discretionary duty which should be solely in the hands of properly elected or appointed public officials. Defendants complain that the appellate court cited no precedent to support its holding, and that indeed there is none. Duncan suggests that if the General Assembly had intended to allow taxpayers’ actions to enjoin fraud, it would have specifically provided for such standing, as does the comparable statute in New York. See N.Y. Gen. Mun. Law sec. 51 (1981).

We do not agree with defendants that the appellate court misread the allegation in plaintiff’s complaint. Plaintiff alleged that Duncan submitted to the city, and Geocaris approved, vouchers for work which both defendants knew was never performed. In the alternative, plaintiff alleged that the payments were approved with reckless disregard as to whether the work had been performed. In our opinion the allegations do not attack the adequacy of performance under the contract. Plaintiff’s allegation that these defendants schemed to defraud the city of considerable funds or alternatively that defendant Geocaris turned a blind eye to vouchers submitted by one of his supporters hardly amounts to an attack on the adequacy of performance under a validly executed contract. If plaintiff can establish that fraud exists, “the fraudulent act is considered tantamount to a waste of public funds” and a taxpayer has standing to prevent the fraudulent activity. (Munoz v. Commissioner of Public Lands (1955), 40 Hawaii 675, 682.) We cannot perceive how it can be seriously contended that section 1 — 5—1 of the Illinois Municipal Code does not permit a taxpayer to bring suit to recover money of which the city was defrauded merely because the fraud was committed under cover of a validly executed contract.

Defendant Duncan contends that the appellate court erred in reversing the dismissal of the city’s suit. Defendant argues that the city’s case was moot since it had been settled and dismissed with prejudice. It also argues that plaintiff lacked standing to appeal from a settlement order to which he was not a party. Defendant argues, too, that under Shannon v. Stookey (1978), 59 Ill. App. 3d 573, the plaintiff’s action was not completely merged with the city’s action and thus plaintiff was not a party to the city’s action. Finally, defendant Duncan argues that our opinion in O’Keeffe cannot be read to give plaintiff standing to appeal the dismissal of the city’s suit and that public policy does not dictate reversal of the settlement.

We do not agree that the city’s case against Duncan was moot. We have here held that plaintiff must be given the opportunity to establish standing and if he had standing to bring his action, the settlement and dismissal should not have been effected without his being given an opportunity to object.

We need not and do not consider the effect of the consolidation order or Duncan’s arguments based on Shannon v. Stookey. We must reject the contention that plaintiff could not appeal a settlement order to which he was not a party since clearly this question was decided in O’Keeffe. We do not agree with Duncan that the appellate court misread O’Keeffe. Duncan suggests that this court’s decision in O’Keeffe gave Hartunian appellate standing only because there was an inherent conflict of interest involved in that case since O’Keeffe’s attorney was interested in being awarded the largest amount of attorney fees possible despite what would be beneficial to the public. O’Keeffe clearly should not be limited to such a narrow holding. In concluding that Hartunian had derivative appellate standing to appeal the award of attorney fees, this court stated that the cases cited by Ingram and O’Keeffe were inapposite “because the record fully establishes here that neither the MSD nor O’Keeffe was adequately taking into account the interests of the taxpayers on the attorney fees issue.” (85 Ill. 2d 458, 477.) Here, too, it was alleged that the city and Duncan had not adequately taken into account the interests of the taxpayers.

The final issue argued by defendant Duncan is whether the settlement between the city and Duncan was contrary to public policy and thus unenforceable. Duncan argues that the appellate court erred in presuming that the settlement was inadequate merely because the settlement sum was a small percentage of the amount originally claimed by plaintiff, and that the appellate court’s opinion violates long-standing public policy in favor of settlements of disputes.

We agree that it is improper to declare a settlement contrary to public policy merely on the ground that it is a small percentage of what was originally claimed. As Duncan perceptively points out, suits are often settled for much less than the amounts originally claimed, and in any event a public official’s discretion in deciding the appropriate amount for which to settle the dispute should ordinarily not be disturbed. However, the appellate court did not find that the settlement violated public policy merely because it was such a small amount, but rather considered the amount of the settlement as one factor of several in the record which demonstrated that the public’s interest was not adequately represented.

A great deal has been said in the parties’ briefs and in oral argument concerning whether there is any merit to plaintiff’s claim that Duncan did not perform a substantial amount of work under its contract or whether Geocaris was aware of this failure to perform. The merits of plaintiff’s case is a question to be decided in the circuit court under proper procedures. The sole question presented in this appeal is whether plaintiff had standing to present the factual issues raised by his complaint and have these issues decided by the circuit court.

The appellate court’s reversal of the circuit court’s dismissal of plaintiff’s complaint is affirmed, and the cause is remanded to the circuit court with directions to grant plaintiff leave to file an amended complaint. The appellate court’s reversal of the order of dismissal of the city’s suit pursuant to the settlement agreement is affirmed.

Affirmed and remanded, with directions.

WARD and SIMON, JJ., took no part in the consideration or decision of this case.


author: JUSTICE WARD

text:
    (No. 56384.
    ROBERT LEE FELDSCHER, a Minor, Appellant, v. E & B, INC., Appellee.

      Opinion filed March 25, 1983.

      Robert A. ChapsM, Ltd., of Elgin (Jonathan L. Carbary, of counsel), for appellant.
    McKenna, Storer, Rowe, White & Farrug, of Wheaton (Jay H. Tressler and Michael F. Dahlen, of counsel), for appellee.
   JUSTICE WARD

delivered the opinion of the court:

This appeal is from a summary judgment in an action for personal injuries. Robert Lee Feldscher (hereafter Bobby) brought the action by his father and next friend, Robert F. Feldscher, against the defendant, E & B, Inc., doing business as Maaco Auto Painting & Body Works (Maaco). The suit was brought for burns received by Bobby while playing with friends on Maaco’s property. The circuit court of Kane County entered summary judgment for Maaco, and the appellate court affirmed in a Rule 23 order (73 Ill. 2d R. 23). (102 Ill. App. 3d 1201.) We granted the Feldschers’ petition for leave to appeal under Rule 315 (73 Ill. 2d R. 315).

The Feldschers’ complaint alleged that Maaco owned and operated an auto-painting and body shop in a section of Elgin where many young children lived. According to the complaint, on August 6, 1978, and for a long time prior thereto, the defendant “operated” an unfenced “open area,” “as a place upon which to deposit and discard various kinds of open drums and cans of volatile liquids, thinners, gasoline type liquids, and other conbustibles [sic], all of which were used by defendant.” One of the drums, a 55-gallon drum, the complaint stated, contained a paint thinner, “Toluol.” This drum had a pump that was “unsecured and unguarded” and, like all the drums and cans of volatile liquid on the premises, was “freely accessible to anyone.” The Toluol was flammable and had characteristics similar to gasoline.

The complaint alleged that the materials were attractive to the children in the neighborhood; that on August 6, 1978, and for a long time prior to that date, many children played in the open area and around the drums; that the defendant knew, or by the exercise of reasonable care could have known, that the materials “were dangerous and naturally attractive and enticing to children of tender years, and that said children would be, and were, attracted and enticed to handle, investigate and play with, in, on, about and around the same, and that the materials were easily accessible and seen by children.” It was the defendant’s duty, therefore, the complaint set out, to use care in the storage and operation of the materials so the children would not be injured. The defendant, however, allegedly breached the duty by not fencing off the area and by permitting the materials “to be and remain in an open and exposed condition.” Keeping the materials in such a manner violated, it was claimed, section 1 of “An Act to regulate the storage, transportation, sale and use of gasoline and volatile oils” (Ill. Rev. Stat. 1977, ch. 1271/2, par. 153), which makes it a petty offense for any person to store gasoline or similar volatile combustibles “in such manner or under such circumstances as will jeopardize life or property.” Also, the complaint alleged that the storage was contrary to the fire-prevention code of the city of Elgin.

The complaint stated that Bobby Feldscher was seven years old on August 6, 1978, and was exercising due care for his safety commensurate with his age and intelligence. On that date, he and several other children who lived in the area went upon Maaco’s property. They were accustomed to playing “on, in, around and upon it,” and were “attracted, enticed and invited” to it. At that time, one of the drums of combustible liquid was ignited, causing Bobby severe injuries. The complaint sought damages of $1 million.

Maaco moved for summary judgment and filed discovery depositions of Bobby and his parents. According to the depositions, on August 6, 1978, Bobby was visiting his father, who lived next door to Maaco’s body shop. Robert Feldscher’s house was to the rear of Maaco’s garage and adjacent to Maaco’s parking lot. Bobby’s parents were divorced and Bobby lived with his mother. To the best of his father’s knowledge, Bobby was the only child living within a block of Maaco.

August 6 was a Sunday and Maaco was closed. Bobby was playing with his friends Douglas, Tony and Terry, who were older children. Bobby had gone to Douglas’ house that morning. The boys were playing hide-and-seek when Douglas got the idea of starting a fire. Douglas, who was 10 years old but called “Baby,” took a sprinkling can from the garage of a woman who lived next door to Maaco’s shop and got some matches from a nearby liquor store. Bobby, in his deposition, stated that he watched Douglas take those items, but that he did not know what Douglas was going to do with them.

The boys proceeded to Maaco’s property. There Douglas pumped what he said was gasoline from a large drum. Douglas filled the sprinkling can and another can with the “gas” and poured it into some beer and soft drink cans. He taped six beer and pop cans together and touched a match to them.

The cans were supposed to explode; however, a fire started. Some paper was burning on the ground and Douglas threw the six burning cans into a garbage dumpster and tossed paper into the dumpster. Bobby said at the time of his deposition that Douglas “put too much [gasoline into the cans]. You are supposed to dunk it in and dunk it out fast. So, that’s how it caught on fire ***.” Tony and Terry took paper from the dumpster and threw it on the fire. Douglas splashed some of the paint thinner onto Bobby’s pants and pushed Bobby into the burning gasoline on the ground. Bobby suffered burns on the legs. That was the first time that Bobby or any of the boys had played at making firebombs. Bobby had never seen it done before, and Douglas learned, Bobby said, about making the firebombs from an older brother.

Bobby returned to his father’s house from Maaco with his shoes and pant legs burning. Both of Bobby’s parents had told him not to play at Maaco and to their knowledge he never had before the day of the fire. When Bobby’s friends came to visit, they played in the back yard, not at Maaco. August 6, 1978, was the first time that there had been a fire at Maaco.

Opposing the motion for summary judgment, the plaintiffs submitted an affidavit of George Van De-Voorde, the chief of the Elgin fire department. In it he said that he had found on the defendant’s premises at the time of the fire “four 55 gallon drums full of waste liquid that looked and smelled like old paint and reducer with no caps on them, one 55 gallon drum of Toluol with a red flammable sticker with a pump in it ***, a sprinkling can about half full of some kind of thinner and two dumpsters of trash and cans.” The chief said that both Toluol and gasoline are highly flammable, and that the Elgin fire-prevention code requires that an outside storage area for flammable liquids must be protected against tampering or trespass.

The plaintiffs also submitted an unsworn statement which had been given to an insurance company by Michael Arians, Maaco’s general manager. In it, Arians said that he examined the premises after the fire. Behind the shop there were some 55-gallon drums belonging to Maaco. Some were empty, some had water, and one had a little thinner left on the bottom. A short distance from those drums were two charred smaller cans, a gasoline can and a sprinkling can, neither of which belonged to Maaco and neither of which had been there before the day of the fire, he said. Also, a garbage dumpster that belonged to the disposal company that picked up Maaco’s refuse appeared to have been burned.

Arians believed that the drum with the paint thinner probably had been in the rear area for a few days, and had been placed there by the body-repair men and painters when it was nearly empty. On the day of the fire no employees were at the shop. Maaco’s refuse pickup days were Monday, Wednesday and Friday.

Arians had never seen children in the area where the fire took place, although he had chased children from a lot beside Maaco. He had seen Bobby in the showroom and repair areas several times, and he had told Bobby to leave.

Maaco objected to the admission of the fire chief’s affidavit and the unsworn statement of Arians, but did not obtain a ruling on the question from the trial court. Under the circumstances, the objection was waived. (See Department of Public Works & Buildings v. Anastoplo (1958), 14 Ill. 2d 216, 222.) The trial court stated at the time it entered judgment that it had considered all of the evidence and pleadings before it.

We consider that the court properly entered summary judgment for Maaco. Under section 57 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 57), a defendant may move for summary judgment at any time. Judgment will be entered “if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Our Rule 212 (73 Ill. 2d R. 212) provides that a discovery deposition may be used for any purpose for which an affidavit may be used.

In Kahn v. James Burton Co. (1955), 5 Ill. 2d 614, this court considered a landowner’s legal duty toward trespassing children. In Kahn, where a boy of 11 years was injured when a construction lumber pile upon which he was playing toppled, this court stated:

“It is generally true, as defendant contends, that an owner or one in possession and control of premises is under no duty to keep them in any particular state or condition to promote the safety of trespassers or others who come upon them without any invitation, either express or implied. [Citations.] It is also established that infants, as a general rule, have no greater rights to go upon the land of others than adults, and that their minority of itself imposes no duty upon the occupier of land to expect them or prepare for their safety. [Citations.] It is recognized, however, that an exception exists where the owner or person in possession knows, or should know, that young children habitually frequent the vicinity of a defective structure or dangerous agency existing on the land, which is likely to cause injury to them because they, by reason of their immaturity, are incapable of appreciating the risk involved, and where the expense or inconvenience of remedying the condition is slight compared to the risk to the children. In such cases there is a duty upon the owner or other person in possession and control of the premises to exercise due care to remedy the condition or otherwise protect the children from injury resulting from it.” 5 Ill. 2d 614, 625.

Usually, suits against landowners for injuries to trespassing children were brought under the doctrine of attractive nuisance. In such cases, courts adopted the fiction that the defendant had enticed the child to come on his premises by maintaining a structure that was attractive to the child. (See Prosser, Torts sec. 59, at 364-66 (4th ed. 1971); Weisiger, Tort Liability of Minors and Incompetents, 1951 U. Ill. L.F. 227, 237-40; Comment, The Landowner’s Duty Toward Minor Children in Illinois, 42 Chi.-Kent L. Rev. 183 (1965).) Regarding this notion this court in Kahn stated:

“[A] child in his youthful fancy, imagination and ingenuity can make a plaything of almost anything and is attracted by almost everything [; therefore], the only proper basis for decision in such cases dealing with personal injuries to children are the customary rules of ordinary negligence cases.
*** The element of attraction is significant only in so far as it indicates that the trespass should be anticipated, the true basis of liability being the foreseeability of harm to the child.” 5 Ill. 2d 614, 624-25.

In Driscoll v. C. Rasmussen Corp. (1966), 35 Ill. 2d 74, this court applied the reasoning and principles stated in Kahn. In Driscoll, a seven-year-old boy was burned while playing on a trash pile near a building under construction. The defendant was the company that was constructing the building. In the course of construction, a trash pile accumulated in the back of the building near an alley. On the pile were discarded pieces of wood, broken bricks, cartons, cans and other scrap.

The plaintiff lived across the alley. On a Sunday, he, a younger brother and another boy, John Woods, were playing with the materials on the trash pile. John’s father was raking leaves in his front yard and burning them in his back yard in a container that was about 15 feet from the trash pile. While Mr. Woods was in the front of the house, the boys took some sticks, ignited them from the burning leaves, carried them to the trash pile and inserted them into old paint cans that then caught fire.

The father saw the burning cans, and admonishing the boys, put out the fires. After he returned to the front of the house, the boys again ignited sticks and the residue in the paint cans. Some sealed cans contained a considerable amount of paint and lacquer, and the boys opened them. The plaintiff accidentally splashed some paint or lacquer and his pants caught fire, causing severe bums on his leg.

Judgment for the plaintiff was entered for $35,000, but this court held that the trial court had erred by not directing a verdict for the defendant. This court considered that although a trash pile containing paint cans may be attractive to children, it could not be considered dangerous of itself or the proximate cause of the plaintiff’s injury. The court explained that paint or lacquer are not explosives nor are they intrinsically dangerous. The court recognized that paint and lacquer are combustible, but they are dangerous only if ignited or brought into contact with fire. A person could not reasonably be required to anticipate such extraordinary uses or actions in the absence of circumstances putting him on notice to anticipate such action. “Defendant could hardly have foreseen that cans might be opened, the contents splashed on clothing and the clothing later ignited by fire obtained at other places. Such is not the natural and probable consequence of maintaining a trash pile.” 35 Ill. 2d 74, 78.

The court also stated:

“Every person owes to all others a duty to exercise ordinary care to guard against injury which may naturally flow ás a reasonably probable and foreseeable consequence of his actions, and a person in possession or control of premises frequented by small children has an obligation not to maintain conditions which are dangerous or hazardous to them in view of the attendant circumstances. (See Kahn v. James Burton Co. [1955], 5 Ill. 2d 614.) But he is not an insurer of their safety. The general rule is that liability must be based on some fault. The injury must be the natural and probable result of a negligent act or condition and be of such a character as an ordinarily prudent person ought to have foreseen as likely to occur as a result of the negligence. An injury is not actionable that could not have been foreseen or reasonably anticipated as its probable consequence and that would not have resulted had not some new and independent cause intervened to produce it. [Citation.]
* * *
The mere fact that this small boy was injured does not authorize a presumption or inference that the trash pile was dangerous or that the contractor was negligent in maintaining it. It is always unfortunate when a child gets injured while playing, but a person who is merely in possession and control of the property cannot be required to indemnify against every possibility of injury thereon. The responsibility for a child’s safety lies primarily with its parents, whose duty it is to see that his behavior does not involve danger to himself. Others can be held responsible for injuries only if they are at fault under some recognized theory of liability.” 35 Ill. 2d 74, 78-79.

The circumstances here cannot be distinguished in any important respect from those in Driscoll; the circumstances are nearly identical. As in Driscoll, there was nothing in the evidence here to put the defendant on notice of the extraordinary events that followed. Probably the only significant difference between the facts here and those in Driscoll is that in Driscoll the plaintiff apparently was burned accidentally, while here Bobby was burned as a result of the malicious conduct of another boy. Generally, however, courts have judged that malicious acts are less foreseeable than merely negligent acts. (Prosser, Torts sec. 33, at 173 (4th ed. 1971).) The circuit court here recognized that the holding in Driscoll was not distinguishable and properly entered judgment for the defendant.

The plaintiffs, however, contend that it was error for the court not to submit the case to the jury. Citing Davis v. Marathon Oil Co. (1976), 64 Ill. 2d 380, they say that the violation of a statute designed to protect life or property is prima facie evidence of negligence. They contend that the issue of proximate cause was one of material fact for the jury, and, as they did in the circuit court, they cite Svienty v. Pennsylvania R.R. Co. (1956), 8 Ill. App. 2d 360, which was decided after this court decided Kahn, but before it decided Driscoll.

The plaintiffs’ argument is not convincing. A violation of‘the statute prohibiting the storage of volatile combustibles “in such a manner or under such circumstances as will jeopardize life or property,” as the complaint alleged, was by no means clearly established here. The Toluol was in a self-contained drum and caused damage only when it was intentionally pumped out and ignited. But even assuming there was a violation, the relevancy of it would extend only to the issue of whether the landowner had acted with less than reasonable care. It would not have the effect of creating a duty to Bobby where none existed. (Washington v. Atlantic Richfield Co. (1976), 66 Ill. 2d 103, 109.) And of course a statutory violation does not obviate the need to determine whether the defendant’s conduct proximately caused the injury. (Davis v. Marathon Oil Co. (1976), 64 Ill. 2d 380, 390.) On the issues of duty and proximate cause, Kahn and Driscoll are dispositive of this case.

In Svienty, the decision upon which the plaintiffs rely, the court affirmed a judgment for a minor who suffered bums when his pants caught fire while playing with railroad switch heaters. The heaters, which contained kerosene and had wicks, were lit by railroad employees to keep switches from freezing in winter. The defendant discarded heaters on its right-of-way near the plaintiff’s home.

The circumstances in Svienty and the circumstances here, however, differ in an important way. In Svienty the evidence showed that for a long time the defendant had actual notice that the children played with the heaters. Children used the heaters to stay warm during ice-skating season. The children had taken and lighted the heaters in the presence of railroad workmen, and the workmen never took the heaters from the children, or warned them not to play with the heaters. Too, there was testimony that on occasion the workmen would give heaters to the children at the children’s asking. There was a basis in the evidence for the Svienty court to judge that the injury to the plaintiff was reasonably foreseeable.

For the reasons given, the judgment of the appellate court affirming the summary judgment of the circuit court is affirmed.

Judgment affirmed.


author: JUSTICE SIMON

text:
    (No. 56375.

      In re WILLIAM HENRY HALL, Attorney, Respondent.

      Opinion filed March 25, 1983.

      Mary M. Conrad, of Chicago, for the Administrator of the Attorney Registration and Disciplinary Commission.
    William J. Harte, Ltd., of Chicago (William J. Harte, of counsel), for respondent.
   JUSTICE SIMON

delivered the opinion of the court:

William Henry Hall was charged in a two-count complaint with failing to prosecute an appeal in a criminal matter and making false statements under oath before the Attorney Registration and Disciplinary Commission. We must decide whether a six-month suspension recommended by both the hearing and review boards is an appropriate sanction in view of the evidence and the fact that counsel for the Administrator requested that the Hearing Board order only a three-month suspension.

Hall was retained in October 1977 to represent Robert Montgomery in an appeal of his sentence of three to nine years’ imprisonment for aggravated battery. He accepted $1,350 of a $1,500 retainer fee from Montgomery’s family for this purpose. When he failed to file a brief in the appellate court, that court dismissed the appeal for want of prosecution in September 1978. Hall did not inform Montgomery or his family of the dismissal despite several letters from Montgomery inquiring as to the status of his case, and Montgomery, who was in prison throughout this period, did not learn of it until August 1979, when he was informed by letter by the clerk of the court. Montgomery demanded a refund of the retainer fee; $1,000 of it was repaid by Hall in July 1980, and the balance was repaid subsequently. On April 30, 1980, Hall appeared at the office of the Administrator pursuant to subpoena and, in a sworn statement, asserted that he had purchased a transcript of the proceedings in the Montgomery matter for $600 and presented the record, along with a notice of appeal, to the appellate court. The Administrator claimed that these acts had been performed by the public defender before Hall was retained rather than by Hall himself, and charged him with deceitful and dishonest conduct (see 87 111. 2d R. 1 — 102(a)(4)), as well as with neglect of a client matter entrusted to him. The complaint sought “a recommendation for such discipline of the Respondent as is warranted by [the Hearing Board’s] findings.”

Hall did not file an appearance or a response to the complaint, and the Administrator’s motion to have the factual allegations in the complaint deemed admitted was granted. Oral argument before the Hearing Board was attended only by counsel for the Administrator, who, when asked by the Board for recommendations as to an appropriate penalty, responded, “This matter before us today is more aggravated than either [In re] Sherwin or [In re] Kennon in that a second count involving lying about his neglectful conduct is charged and proved. I recommend to this Panel that the discipline imposed be not less than censure and not more than three months.” Despite this suggestion, the Hearing Board recommended suspension for six months and until further order of the court.

Hall filed exceptions to the Hearing Board’s recommendation and moved for a remand of the case to permit him to respond to count II of the complaint, which charged him with lying under oath before the Commission. The Review Board denied this motion and, on the existing record, modified the Hearing Board’s recommendation to provide for only a six-month suspension. Hall filed exceptions in this court and renewed his motion to permit the taking of evidence, which we denied. His position before this court is that he deserves no more than a censure for failing to prosecute the Montgomery appeal, that the Hearing Board’s finding that he lied under oath was improperly weighed as an aggravating factor after once being considered as a substantive charge, and that the Administrator should be foreclosed from seeking more than a three-month suspension after seeking that penalty before the Hearing Board.

Our practice in imposing discipline is to treat similar cases alike where possible, while being mindful of the unique factors of each case. (In re Chapman (1978), 69 Ill. 2d 494, 501; In re Andros (1976), 64 Ill. 2d 419, 425-26.) We do not agree with Hall that failure to prosecute a criminal appeal should give rise to no greater sanction than censure. In In re Taylor (1977), 66 Ill. 2d 567, an attorney who failed to institute proceedings in two civil matters and a criminal case and did not return the fees he had received from his clients was suspended for one year. (See also In re Chapman (1978), 69 Ill. 2d 494 (attorney failed to prosecute three civil appeals and was suspended for three months).) Suspension may be an appropriate punishment for neglect of an attorney’s duties where there is no showing of corrupt motive or moral turpitude. (In re Chapman (1978), 69 Ill. 2d 494, 501; see In re Ahern (1961), 23 Ill. 2d 69, 74.) In this case, while Hall returned the full amount of his retainer fee and did not affirmatively misrepresent the status of the appeal to his client, the consequence of his neglect was to cause the client to lose his constitutional right to an appeal. We agree with the Administrator that this loss is less susceptible to monetary valuation or remedy than the loss of a civil suit for damages, and that more severe discipline is appropriate to deter neglect in criminal cases than in civil cases.

In this case, however, we believe that a three-month suspension is the most that should be imposed. While the original complaint did not seek a specific penalty for Hall’s misconduct, counsel for the Administrator sought discipline of “not less than censure and not more than three months” in answer to the Hearing Board’s request for a recommendation. We do not interpret this as a request for three months’ suspension for count I of the complaint and three months for count II, as the Administrator now suggests it was intended to be; the request was phrased in unambiguous language, and it was immediately preceded by an attempt to distinguish certain cases involving neglect on the ground that the instant case also involved lying under oath. We believe that the function of the Administrator in disciplinary matters is to determine the gravity of an offense and to recommend what punishment is appropriate, based on his experience in the uniform application of the Code of Professional Responsibility. This determination is to protect the interests of the respondent as well as those of the bar and the public, and it should offer reliable guidance for the hearing and review boards and for this court. We believe that the Administrator’s original recommendation of three months’ suspension rather than a longer one was reasonable. We adopt that recommendation here.

Respondent suspended.


author: JUSTICE CLARK

text:
    (No. 56238.

      In re ESTATE OF SIDNEY ALPERT, Deceased (Lila Jones, Appellant, v. Michael Rotman, Adm’r, Appellee).

      Opinion filed March 25, 1983.

      Marianne Jackson of Marianne Jackson, Ltd., of Chicago, for appellant.
    Michael H. Rotman, of Rotman, Medansky & Elovitz, Ltd., of Chicago, pro se.

   JUSTICE CLARK

delivered the opinion of the court:

Sidney Alpert died testate on January 9, 1979. On March 6,1979, Michael Rotman, as administrator de bonis non with the will annexed of the estate, filed the will for probate in the circuit court of Cook County, probate division.

On May 11, 1979, a codicil to the will of Sidney Alpert was admitted to probate.

At the time of decedent’s death, he held joint tenancy property in trust with Nettie B. Alpert, his wife, at the American National Bank and Trust Company of Chicago, as trustee under trust No. 40976.

Prior to his death, decedent signed a 90-day note for $50,000 to the First National Bank of Lincolnwood, and both he and his wife made a collateral assignment of the entire beneficial interest in the trust to secure the note. The decedent borrowed the money to refinance a property he bought in Wisconsin. Subsequent to his death, the bank filed a claim against the estate which was allowed by the probate court and ordered satisfied solely and specifically against the trust, and not against any assets inventoried in the estate.

The dispute in this case therefore revolves around the question of whether the certificate of beneficial interest which was pledged as collateral for the $50,000 loan should be used to satisfy the obligation or whether the claim should be satisfied in part, first from the estate, since it appears that the only probate assets are real estate at 814-22 West 76th Street, Chicago, and some outstanding accounts receivable estimated to be in the amount of $30,000. The costs, taxes and debts of the administration will be approximately $90,000, including the $50,000 owed on the Skokie land trust property.

The codicil provided that Lila Jones, a partner with decedent in the 76th Street property, was to receive the interest decedent had, after all debts, taxes, and funeral bills were paid. There are not enough probate assets to satisfy the claims and debts of the estate.

The probate court entered an order on August 18, 1980, which directed that the claim of the First National Bank of Lincolnwood should be satisfied solely and specifically against the joint tenancy property held in the land trust. The administrator appealed to the appellate court, which reversed (102 Ill. App. 3d 600). Lila Jones’ petition for leave to appeal to this court was allowed. 73 Ill. 2d R. 315(a).

We affirm.

Ms. Jones first cites section 20 — 19 of the Probate Act of 1975 (Ill. Rev. Stat. 1977, ch. IIOV2, par. 20 — 19) for the proposition that it prohibited a surviving tenant with an encumbered beneficial interest under a trust of real estate from having the encumbrance paid in whole or in part out of the decedent’s probate estate. We must first therefore determine whether Nettie Alpert, the surviving tenant, possessed an encumbered beneficial interest in the Skokie real estate upon the death of her husband, Sidney Alpert. Neither the brief of the administrator nor the opinion of the appellate court addresses this issue, but in his oral argument before this court counsel for the administrator argued, and we agree, that the statute by its very terms is only applicable “Except as otherwise expressly provided by decedent’s will ***.” Ill. Rev. Stat. 1977, ch. HOW, par. 20 — 19.

The “First Article” of decedent’s will directs his executor to pay out of the residue of his probate estate “All indebtedness owed by me at the time of my death except such indebtedness as [then] is secured by a mortgage of real estate.”

The codicil provides that all debts are to be paid and places no limitations like those contained in the first article, paragraph III, of the will, as to any indebtedness secured by a mortgage on real estate. Therefore, even if we were to construe the assignment by decedent and his wife, of their beneficial joint tenancy interest in the land trust, holding title to the Skokie property, to the First National Bank of Lincolnwood as collateral to secure a note, as an indebtedness secured by a mortgage, it would still be a debt which under the codicil is to be paid from the estate.

However, we agree with the appellate court that the joint tenancy property held in a land trust did not become a probate asset upon the death of Sidney Alpert. An estate in joint tenancy is one held by two or more persons jointly with equal rights to share in its enjoyment during their lives. One of the essential characteristics of the joint tenancy estate is the right of survivorship, which is the right of the survivor to take the whole estate on the death of the joint tenant. (Bonczkowski v. Kucharski (1958), 13 Ill. 2d 443, 451.) The surviving joint tenant does not take the share of the deceased joint tenant as his successor, but by rights under the conveyance which created the joint tenancy. “Since the surviving joint tenant succeeds to the interest of his cotenant on the latter’s death by virtue of the form of the deed, the property does not become part of the probate estate.” (4A R. Powell, Real Property par. 619.1 (1982).) Since a joint tenancy estate is not an estate of inheritance, the joint owner first dying has no interest which he can convey or devise. Title to the property held in joint tenancy takes precedence over the claim of a devisee, legatee, or heir, as the case may be. (Eckardt v. Osborne (1930), 338 Ill. 611, 615; Klajbor v. Klajbor (1950), 406 Ill. 513, 517; Bonczkowski v. Kucharski (1958), 13 Ill. 2d 443.) Upon the death of Sidney Alpert, title vested automatically in Nettie Alpert. A surviving joint tenant holds under the conveyance or instrument by which the tenancy was created and not under the laws regulating intestate succession. Klajbor v. Klajbor (1950), 406 Ill. 513, 518; Bonczkowski v. Kucharski (1958), 13 Ill. 2d 443, 451.

Next we must consider Lila Jones’ contention that the assignment of the beneficial interest in the land trust to the Bank of Lincolnwood created an equitable real estate mortgage and therefore the claim should be satisfied against that property, and we must further consider the order of the probate judge that the claim of the First National Bank of Lincolnwood, which was allowed by him, “shall be satisfied solely and specifically against the American National Bank Land Trust No. 40978, and not against any assets inventoried in this instant estate.”

A trustee of an Illinois land trust has both legal and equitable title. (Chicago Federal Savings & Loan Association v. Cacciatore (1962), 25 Ill. 2d 535, 543; Levine v. Pascal (1968), 94 Ill. App. 2d 43, 50.) A beneficiary’s interest in an Illinois land trust is personal property and not real property. Horney v. Hayes (1957), 11 Ill. 2d 178, 183; Shefner v. University National Bank (1976), 40 Ill. App. 3d 978, 980; Levine v. Pascal (1968), 94 Ill. App. 2d 43, 50.

An assignment of a beneficial interest does not give the assignee a direct interest in the realty res of the trust. The assignment of the certificate of beneficial interest to the Bank of Lincolnwood did not create an equitable real estate mortgage.

Both Lila Jones and the administrator agree that the Bank of Lincolnwood is entitled to be reimbursed for its loan to Sidney Alpert, but disagree as to the source of reimbursement. For the reasons stated herein we affirm the appellate court and hold that the Bank of Lincolnwood’s claim may not be satisfied solely and specifically against the joint tenancy property held in the land trust at the American National Bank.

Judgment affirmed.


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    (No. 56835.

      In re Estate of WENDELL BRIDGES, Deceased (Rosemary Bridges, Ex’r, Appellant, v. Billy Bridges et al., Appellees).

      Opinion filed March 25, 1983.

      Leonard T. Flynn, of Franklin, Flynn & Palmer, of Champaign, for appellant.
    Philip A. Summers, of Summers, Watson & Kimpel, of Champaign, for appellees.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

The circuit court of Champaign County overruled the objections filed by Billy Bridges and Timmy Bridges (hereafter objectors) to the final report of Rosemary Bridges, executor of the estate of Wendell Bridges, and approved the report. The appellate court, in an order pursuant to Rule 23 (87 Ill. 2 R. 23), reversed (104 Ill. App. 3d 1213), and we granted the executor’s petition for leave to appeal (87 Ill. 2d R. 315).

The testator, Wendell Bridges, was a contractor in the Champaign-Urbana area. He executed a will on May 29, 1979, and died on July 2, 1979, survived by his widow, who is the executor, and the objectors, who are his sons by a prior marriage.

Article FIRST of the testator’s will provided that all of his debts, expenses of his funeral and all taxes be paid from the residuary portion of his estate. Article SECOND bequeathed to the executor cash and personalty not here in question. Articles THIRD through FIFTH provided:

“THIRD. In the event that my beloved wife, ROSEMARY BRIDGES, survives me, I do hereby give and bequeath unto her, absolutely, all of my interest in and to the following:
A. All beneficial interest owned by me under the terms of Land Trust Agreement dated December 1, 1976, The Commercial Bank of Champaign, Trustee thereunder, the same being known as Trust No. 43-252.
B. All beneficial interest owned by me under Declaration of Trust dated June 27, 1974, The Champaign National Bank, Trustee thereunder, and known as Trust No. 032-561-003.
I do further give and bequeath unto my wife all of my interest as a general partner under the terms of Limited Partnership Agreement dated June 25, 1974, covering and concerning a limited partnership known as “Sunny-crest Apartments,” the same covering and concerning the real estate which forms the corpus of the last described land trust.
FOURTH. If my wife survives me, I give, devise and bequeath unto her absolutely property which is exclusively of such a nature that a marital deduction will clearly be allowed in respect thereto, pursuant to the provisions of the then applicable United States Internal Revenue Code, and which has a total value equal to thirty-three and one-third percent (SSVsTo) of the value of my adjusted gross estate, as finally determined for federal estate tax purposes, not including, however, in such computation, the value of the property interests herein specifically devised and bequeathed to my wife in Article THIRD above appearing, those interests passing to her as a result of being a surviving joint tenant in a joint tenancy established between us, and also not including any life insurance proceeds payable to my wife as a designated beneficiary under a policy insuring my life, it being my intention and direction that all of the property interests described in Article THIRD, joint tenancy interests and life insurance proceeds shall pass to my wife in addition to thirty-three and one-third percent (BBVsVo) of my adjusted gross estate, all of such interests plus the interest herein devised and bequeathed, to pass to her absolutely. With regard to property of my estate that shall pass to my wife under the terms of this Article, I direct that my Executor shall have the power to select the property to be distributed to my said wife, but any property distributed in kind shall be valued at its fair market value on the date of distribution. No property shall be used to satisfy this gift as to which a marital deduction is not allowable. This gift shall abate to the extent that it cannot be satisfied in the manner above provided.
FIFTH. In the event that any of my children or their issue survive me, I do hereby give, devise and bequeath my residuary estate to the Trustee and successor Trustee herein named, IN TRUST, for the following uses and purposes:
A. I direct that the Trustee herein named shall divide all the residue of my estate, or the Trustee shall divide the entirety of my estate in the event that my wife has predeceased me, into separate and equal trusts, one trust for each child of mine then living and one trust (on a per stirpes basis) for the then living descendants of each child of mine who is deceased. The share thus attributable to any child of mine who has attained the age of thirty-five (35) years shall be immediately distributed to such child free and clear of the terms of this trust and the share attributable to any child of mine under the age of thirty-five (35) years shall be held and administered as below provided.
* * * >>

The gross estate of the decedent as reflected on Illinois inheritance tax forms was valued at $829,911.98 and consisted of the following:

Cash, deposits, notes & stock $485,185.03
Personal property 12,000.00
Interest in businesses & partnerships 261,795.42
Decedent’s joint tenancy interests 52,258.85
Other property, unspecified in the record 18,672.68
Total $829,911.98

Allowable deductions equaled $53,866.63, leaving an adjusted gross estate for Federal tax purposes of $776,045.35.

The final distribution proposed by the executor in her report, to herself as surviving spouse under the will, and the amounts received by her through operation of law consisted of the following:

Article THIRD property $261,795.42
Joint tenancy property 47,017.71
Proposed Article FOURTH distribution 258,681.78
Insurance proceeds 14,340.07
Total $581,834.98

Objectors contended in the circuit court that under article FOURTH of the testator’s will the executor was to receive not one-third of the adjusted gross estate, but one-third of the adjusted gross estate less the value of the property interests passing to her under article THIRD of the will, those passing to her as survivor under the joint tenancies and the proceeds of life insurance in which she was designated as the beneficiary. In overruling the objections and approving the final report, the circuit court stated:

“The clearly expressed intent of the testator is to provide that one-third of the adjusted gross estate, as that phrase is used for federal estate tax purposes, passed to the surviving spouse plus all joint tenancy and Article Third properties and insurance proceeds.
While the computation language in the paragraph is perhaps not as clear a statement of that intent as is later language, that computation language is not inconsistent with the above-recited intent, nor does it dictate a result other than that urged by the executor.”

The appellate court disagreed with the circuit court. In its Rule 23 order, the appellate court stated that there were two possible interpretations of the fourth article of the will. It pointed out that the words “adjusted gross estate” were followed by the language “not including, however, in such computation, the value of the property interest herein specifically devised and bequeathed to my wife in article THIRD above appearing, those interests passing to her as a result of being a surviving joint tenant in a joint tenancy established between us, and also not including any life insurance proceeds payable to my wife as a designated beneficiary under a policy insuring my life ***.” The appellate court continued:

“There thus arises by virtue of this language and the further language beginning with ‘it being my intention and direction that all of the property interests described in Article THIRD, joint tenancy interests and life insurance proceeds shall pass to my wife in addition to thirty-three .and one-third percent (33V3%) of my adjusted gross estate, all of such interests plus the interest herein devised and bequeathed, to pass to her absolutely’ an inconsistency with the previous clause admitting of two possible constructions. First, it could have been intended that the Article Third property, joint tenancy property and life insurance proceeds, were to pass outside the one-third interest, yet be included in the adjusted gross estate basis from which the one-third interest was computed. Alternatively, such property could have been intended not to have been included in the adjusted gross estate basis from which the one-third was taken. The ambiguity thus turns on the word ‘computation’ and the question arises as to which ‘computation’ or part of such computation the Article Third property, joint tenancy property and life insurance property, was to be excluded. Either approach is equally plausible from a literal standpoint, but yet each is not without difficulty.”

The appellate court then noted, inter alia, that if the executor’s construction were adopted, the objectors’ trusts would be grossly underfunded and could not possibly pay out $15,000 annually for more than three years, although under the will they were to continue for approximately 15 years longer. The appellate court reasoned that the will was drafted approximately one month before the testator’s death, and assuming that he had some knowledge as to the nature and extent of his property, he would not have intended the construction of the will proposed by the executor. Finally, the appellate court disagreed with the objectors that language in the fourth article limited the amount the executor could receive to the amount which equaled the maximum marital deduction, but rather that the language employed was only intended to limit the type of property passing to her, but not the value.

The executor contends that the appellate court erred in construing the phrase “my adjusted gross estate” in that it failed to give the phrase its commonly accepted meaning. She argues that failure to construe the phrase “adjusted gross estate” in accordance with the definition contained in the United States Internal Revenue Code places in jeopardy many wills using such phrases. She argues, too, that the appellate court erred in holding that where an ambiguity exists a plan of disposition will be adopted which is closely aligned to the statute of descent. Here, she argues, the testator’s obvious intention was not to divide his estate in accordance with an intestate formula for distribution.

The executor contends that the word “computation” refers to the calculation of the “total value equal to thirty-three and one-third percent” and not to the calculation of the value of the adjusted gross estate. Thus, she argues, no ambiguity exists and the later phrase “it being my intention and direction that all of the property interests described in Article THIRD, joint tenancy interests and life insurance proceeds shall pass to my wife in addition to thirty-three and one-third percent (SSVsTo) of my adjusted gross estate all of such interest plus the interest herein devised, bequeathed, to pass to her absolutely” dispels the construction which objectors seek to place on this article. She suggests that the underfunding of objectors’ trusts could be due to the fact that the testator might not have known the value of his property for purposes of Federal estate taxes and also argues that the valuations used for inheritance tax purposes may be lower than their actual values.

The objectors argue that the appellate court was correct in deducting the value of the joint tenancies, life insurance proceeds, and the third-article bequests from the adjusted gross estate before calculating the one-third interest to be granted to the executor. Objectors contend also that testator limited his bequest to the executor to property having a value equal to the marital deduction. Objectors argue that the language “No property shall be used to satisfy this gift as to which a marital deduction is not allowable,” and “This gift shall abate to the extent that it cannot be satisfied in the manner above provided” clearly evidences this intention.

We agree with the appellate court’s construction of the fourth article. The primary purpose in construing a will “is to determine the testator’s intention from the will as a whole and to give it effect.” (Feder v. Luster (1973), 54 Ill. 2d 6, 10; Whitmore v. Starks (1959), 17 Ill. 2d 202, 206.) The intention of the testator should be determined from the will by giving every word, phrase and clause in the will effect if possible (Feder v. Luster (1973), 54 Ill. 2d 6, 11; Whitmore v. Starks (1959), 17 Ill. 2d 202, 206), but if an ambiguity in the will cannot be resolved through the examination of the will as a whole, the court may examine the circumstances which existed at the time the testator executed the will to determine his intention (Weber v. Hawkins (1964), 30 Ill. 2d 278, 283-84; O’Connell v. Gaffney (1962), 23 Ill. 2d 611, 614). Here, testator executed his will only 34 days before his death. He was apparently aware of his impending death, as he was hospitalized at the time of his death due to metastatic cancer of his pancreas. Testator’s sons, as was revealed at oral argument, were in their early 20’s when he died. The trusts established by the fifth article are required to distribute $15,000 annually to each of the sons until they attain the age of 35. As noted by the appellate court, this scheme of distribution could not be carried out for more than three years if the executor’s construction of the fourth article is accepted, because the trusts would not have received sufficient funds. We are unpersuaded by the executor’s contention that her husband, an apparently successful contractor, was so unaware of the value of his assets that he would execute a will with such grossly underfunded trusts for the benefit of his children. Moreover, the precise manner in which the will identifies testator’s property and provides for its disposition tends to negate any inference that he was laboring under a misconception as to the extent of his holdings. We also cannot accept the executor’s argument that the valuations appearing in the inheritance tax returns are underestimated and that the trusts will not be severely underfunded. Adequate funding of the trusts would require that the value of the property be several times greater than the values included in the tax returns.

We also agree with the appellate court that the fourth article does not limit the gift to the executor under that article to the maximum marital deduction allowed under Federal estate tax law. As the appellate court noted, the article only limits the “nature” of the property which passes to her under that article. Moreover, no plausible explanation appears as to why testator used the complex computation formula appearing in article FOURTH if he meant to give his wife only an amount equal to the marital deduction. To adopt objectors’ construction concerning this limitation would, in our opinion, misconstrue the testator’s intent in determining the gift to the executor under this article. (Feder v. Luster (1973), 54 Ill. 2d 6, 11; Carr v. Hermann (1959), 16 Ill. 2d 624, 628.) The judgment of the appellate court is affirmed.

Judgment affirmed.