text:
    James Sloma, Plaintiff-Appellee, v. Burton E. Pfluger, Viola Carpenter, Administratrix of the Estate of Richard Lee Carpenter, Deceased, Viola Carpenter, Defendants, and L. H. Wood, Individually and d/b/a L. H. Wood Construction Company, Defendant-Appellant.
    Gen. No. 69-130.
    Second District.
    June 18,1970.
    Rehearing denied September 3,1970.

      Joseph B. Lederleitner, Pretzel, Stouffer, Nolan & Rooney, of Chicago, for appellants.
    Leonard M. Ring, Peterson, Bogucki & Beck, and John H. Bickley, Jr., of Chicago, for appellee.
   MR. PRESIDING JUSTICE DAVIS

delivered the opinion of the court.

The plaintiff, James Sloma, brought this suit against the Administratrix of the Estate of Richard Lee Carpenter, to recover damages for personal injuries which the plaintiff suffered on March 29, 1966, while riding in a pickup truck owned and operated by Richard Lee Carpenter. The plaintiff also sought recovery against L. H. Wood, individually and doing business as L. H. Wood Construction Company, the employer of both Carpenter and the plaintiff; and against Burton E. Pfluger, the driver of the other vehicle involved in the accident. Carpenter died as the result of the accident in question.

The trial court severed the issues of liability and damages and ordered that each issue be tried by a separate jury. The first jury found the defendants, Carpenter and Wood, liable, and the defendant, Pfluger, not liable. At a subsequent trial, the jury assessed damages in favor of the plaintiff in the sum of $380,000. At the trial on the issue of liability, the jury answered special interrogatories and found: that Carpenter was guilty of wilful and wanton conduct resulting in the accident; that the plaintiff was free from contributory wilful and wanton misconduct; that Carpenter was within the scope of his employment at the exact time of the accident (approximately 6:45 p. m.); that Carpenter was within the scope of his employment at an earlier time, when he had arrived at a tavern at approximately 3:45 p. m.; and that Carpenter was within the scope of his employment at an earlier time, when he left the tavern in question at approximately 6:30 p. m. A judgment was entered on the jury verdicts, and the employer, Wood, appealed.

Wood contends that there was no probative evidence of the resumption of employment by Carpenter after approximately two and one-half hours of drinking in the tavern, and that he, thus, was entitled to a directed verdict; that the verdict and answers to the interrogatories are against the manifest weight of the evidence; that certain opinion evidence as to the cost of future custodial care for the plaintiff was erroneously admitted, in that there was no evidence of the necessity for such custodial care; and finally, that the verdict of $380,000 is excessive and the result of errors committed in the course of the trial.

Wood was engaged in the business of erecting dry walls as a part of the construction of new buildings. He employed between one hundred fifty and two hundred men, and had four superintendents working for him. His operations encompassed the Chicago metropolitan area, north to Waukegan and west to Rockford. His main office was in Algonquin. The materials that were needed for the jobsites were either delivered to these sites, or kept in supply trailers throughout the area. Wood’s superintendents had keys and access to these supply trailers. The materials stored in the trailers were normally delivered to the various jobsites by superintendents, or by employees hired for that purpose.

Carpenter was employed by Wood as a taper. He was a capable worker and his work ranged over a wide area. He required less supervision than many, or most, of Wood’s employees. Apparently, Mr. Darnell, his superintendent, merely told him where his job assignments were to be. Carpenter’s work relationship was rather unique in that he had his own pickup truck, which he drove to his various jobsites, and in which he carried his supplies and tools. He lived in Carpentersville, and his employer maintained a supply trailer in Meadow-dale — a shopping center about a mile and a half from Carpenter’s home. This trailer was primarily for Carpenter’s use, and even though he was not a superintendent, he had a key to this supply trailer. Carpenter’s key opened only this supply trailer — not the other trailers belonging to Wood. Carpenter was not paid an hourly rate; but rather, was paid on a piecework basis.

The plaintiff was eighteen years old at the time of the accident. He had been employed by Wood for a little over a year, and had been working directly with Carpenter for approximately two months. Carpenter’s superintendent, Darnell, testified that he had “given” the plaintiff to Carpenter to use as a laborer-apprentice. The plaintiff was paid an hourly rate and was paid only from the time he arrived at the job until the time he left, and was not paid for any transportation time. He lived about a half a block from Carpenter in Carpentersville, and rode daily to and from the various job-sites with Carpenter, in the latter’s pickup truck.

On the day in question, the plaintiff and Carpenter had worked on a job in Belvidere, which they completed. They left the jobsite at about 3:30 p. m., and drove to a tavern in Belvidere where they frequently stopped while working in the Rockford or Belvidere area. On this occasion, they remained in the tavern for about two and one-half hours. During this time, Carpenter had five or six bottles of beer, but the plaintiff had nothing alcoholic to drink. The plaintiff testified that Carpenter’s eyes were glassy when they left the tavern at about 6:30 p. m., but that his speech and gait were normal, and that he did not believe Carpenter to be intoxicated. They got into the pickup truck — Carpenter driving — and proceeded east on U. S. Highway 20. The plaintiff testified that he placed his knees on the dashboard and fell asleep almost immediately.

The accident took place about a mile east of Belvidere, on U. S. Highway 20 — a paved two-lane highway at this point. Pfluger was driving a large tractor-trailer truck combination in an easterly direction at the time and place in question, and at the time of the accident was making a left-hand turn into a restaurant driveway, and was, thus, partially in the westbound lane of traffic. Carpenter’s pickup truck struck the rear of Pfluger’s vehicle. Witnesses estimated that Carpenter’s pickup truck was travelling at a speed of from 70 to 90 miles per hour. The pickup truck exploded and burned: Carpenter was killed and the plaintiff severely injured. Visibility was good at this time and place.

The plaintiff testified that when they left the tavern they were then going to Meadowdale to pick up supplies; that they would go to Meadowdale for supplies before Carpenter would take him home because he lived only a half block from Carpenter; and that they intended to pick up supplies that night since they had completed the job in Belvidere and had only four or five bags of supplies left in the pickup truck, and it would take fifteen or twenty bags for the next day’s work. It is undisputed that the plaintiff was not paid for any help he might give Carpenter in loading the supplies.

He further testified that, depending upon where they were to be working the following day, they would, at times, pick up supplies at night, to save time the following day; that they normally started work at about 7:00 a. m., and that the plaintiff knew that they were going to be working at either the Whitehall or Woodview jobsites in Prospect Heights the following day. Darnell, the superintendent, testified that he had planned to call Carpenter that evening to advise him that they would be working at Woodview the following morning.

The plaintiff also testified that Carpenter had told him that they were going to Meadowdale to pick up supplies. This testimony was stricken by the court and the jury was advised to disregard it.

We will first consider Wood’s contention that he was entitled to a directed verdict on the issue of liability. Wood contends that if, at the time of the accident, the plaintiff and Carpenter were going to pick up supplies, then the plaintiff, too, was in the scope and course of his employment; and that in such event, Wood, the employer, is not liable for the injuries caused by the co-employee, Carpenter.

While Carpenter was on piecework and paid accordingly, the plaintiff was paid by the hour, and only for the time on the jobsite. His duties did not include picking up the supplies for the work to be done. Apparently, Carpenter was the only employee who was authorized and actually expected to pick up his supplies. If the plaintiff aided Carpenter, he did so as a volunteer. The evidence does not support any agreement or understanding between Wood and the plaintiff which could be held to create an obligation on the plaintiff, as part of his employment, to assist Carpenter in the loading of supplies.

The plaintiff obviously had a convenient source of transportation to and from his place of work. Because he lived near Carpenter, it was also convenient to stop for the supplies before dropping the plaintiff off at his home. But, this was a matter between Carpenter and the plaintiff. As for Wood, the employer, it mattered not whether the plaintiff rode with Carpenter, with someone else, or by himself; or if he rode with Carpenter, whether the latter took him home before or after getting the supplies. Apparently, the plaintiff had no concern as to the time when he arrived home, as was evidenced by the customary stop at the tavern on the route home.

The determination of when one ceases to be an employee is often difficult. However, the facts in this case suggest that the plaintiff’s scope of employment began and ended at the jobsite; that there was nothing to take him out of the normal rule that travel to and from the place of employment is beyond the realm of the employment relationship; and that one injured in the course of such travel is not injured as an employee. Urban v. Industrial Commission, 34 Ill2d 159, 161, 214 NE2d 737 (1966); Christian v. Chicago & I. M. Ry. Co., 412 Ill 171, 175, 105 NE2d 741 (1952).

The trial court left the question of whether the plaintiff occupied the status of a guest of Carpenter or an employee, while riding with Carpenter, for the jury to decide. This was proper under the facts of this case. See: Leonard v. Stone, 381 Ill 343, 345, 45 NE2d 620 (1943).

The plaintiff, however, had no cause of action against Wood unless Carpenter was still acting within the scope of his employment at the time of the accident. This, it appears from the record, is even a closer question. It is admitted that Carpenter was on a lark of his own for in excess of two and one-half hours while at the tavern. It is equally true, however, that such a deviation from his duties will not, as a matter of law, prevent him from returning to the course of his employment. In Parotto v. Standard Paving Co., 345 Ill App 486, 490, 104 NE2d 102 (1952), it was held that a deviation in time of approximately seven hours and, in distance, of some four miles, was not as a matter of law so substantial as to relieve the employer of liability for the employee’s tortious acts. In Kavale v. Morton Salt Co., 329 Ill 445, 160 NE 752 (1928), the court refused to set aside a jury verdict against the employer where the employee’s deviation had existed for approximately three hours.

The mere fact that Carpenter was driving his own truck and not one belonging to Wood, is not decisively significant. Unlike most employees, Carpenter brought the supplies needed for a particular day’s work to the jobsite, and Wood provided a supply trailer, near Carpenter’s home, for his use. Carpenter had a pickup truck so that he could carry these supplies. Ignoring for a moment the personal lark of Carpenter and the question of the effect of the deviation from the course of his employment, inasmuch as he was intending to get his supplies for the next day, he was driving his pickup truck with the implied authority of Wood.

The lack of immediate supervision over Carpenter in picking up his supplies, appeared no less than that exercised over him at the jobsite. Wood knew that Carpenter picked up his own supplies and provided a special trailer for this purpose. Thus, Carpenter’s use of his own vehicle for his employer’s business was not only with the latter’s knowledge and consent, but also with his encouragement. When so driven, it was within the course of Carpenter’s employment. Hogan v. City of Chicago, 319 Ill App 531, 539, 543-546, 49 NE2d 861 (1943).

Wood insists, however, that there is no evidence that he authorized Carpenter to invite anyone to ride as a “guest” with him. We believe, however, that when an employee is using his own vehicle for his employer’s purpose, the same rule prevails with reference to a guest in the vehicle as when the vehicle is employer-owned. The employer may not be held liable under the doctrine of respondeat superior where the employee has taken a guest in the vehicle, contrary to the express instructions of the employer, even though the employee is acting within the scope of his employment. Klatt v. Commonwealth Edison Co., 33 Ill2d 481, 495, 498, 211 NE2d 720 (1965). Here, however, Wood did not prohibit Carpenter from transporting the plaintiff. In fact, the evidence suggests that Wood, through the superintendent, Darnell, not only knew of the transportation arrangement, but also encouraged it. Wood had the right to advise Carpenter not to permit any guests to ride with him when he obtained supplies for his work, but this prerogative was not exercised. Under these circumstances, Wood may be held liable under the doctrine of respondeat superior.

The critical question is whether or not there was probative evidence that Carpenter had returned from the deviation from the course of his employment and was going to pick up supplies and, thus, was again in the course of his employment. We believe the evidence set forth above relative to Carpenter having a supply trailer for his use, the location of the trailer, the fact that he picked up supplies in the evening as well as in the daytime, the hour he was to start work the next day, the location of the two places where he might work the following day, the number of bags of supplies in the truck, and the number needed for work the following day, constituted sufficient facts for the case to go to the jury. All of the evidence, viewed in the light most favorable to the plaintiff, is not such that the verdict for him cannot stand. Pedrick v. Peoria & E. R. Co., 37 Ill2d 494, 510, 229 NE2d 504 (1967).

The evidence in this case, particularly on the issue of whether or not Carpenter was acting within the scope of his employment, is somewhat meager. This is to be expected in this type of case — where death has sealed the lips of the one who might otherwise have shed the most light on the question. The plaintiff was compelled to tell his story with the best evidence available to him. The jury believed that under the law as given to them by the court the plaintiff was entitled to a verdict. The trial judge, who had an opportunity to hear the testimony and observe the witnesses, denied the defendant a new trial and upheld the verdict of the jury. Mindful of all of this, we are of the opinion that we may not substitute our judgment for that of the jury; the verdict is not palpably erroneous or wholly unwarranted from the manifest weight of the evidence. Johnson v. Central Tile & Terrazzo Co., 59 Ill App2d 262, 273,274, 207 NE2d 160 (1965).

The defendant suggests that our decision in Sauer v. Iskowich, 80 Ill App2d 202, 224 NE2d 21 (1967) is indicative that Carpenter had terminated his employment on the day in question, prior to the time of the accident, and could not be found to have returned thereto. But, in Sauer, the employee was not a continuing employee, but one hired only to pick up and return a repossessed car. He did so, leaving it at one of the designated places. When he did that we indicated his job was completed: he no longer was employed. When he returned later and picked up the car, it was entirely for his own frolic and had no connection with the employer’s business. We indicated in Sauer, at pages 206 and 207, the types of factors to be considered in deciding whether one is within the scope of his employment. It should be apparent from these, that it is the exceptional case where this determination can be made as a matter of law.

While discussing this aspect of the case, we might make reference in passing to testimony stricken by the court. Wood suggests that this was the only evidence of probative value, and that if the jury disregarded it, there was nothing left on which to base their verdict. Our opinion, of course, is the contrary; and, likewise, we believe that the stricken evidence should have been admitted.

Whether or not Carpenter had returned to his course of employment at the time of the accident depended, to a large extent, on his intent at the time. Did he intend to stop to pick up supplies? If he did, then this intent itself was a factor for the jury’s consideration in deciding whether he was again in the course of his employment. The plaintiff testified that Carpenter expressed this intent by saying he was going to pick up the supplies. Whenever intention is itself a distinct and material fact in a chain of circumstances, as it was here, it may be proved by testimony of contemporaneous oral declarations. Quick v. Michigan Millers Mut. Ins. Co., 112 Ill App2d 314, 320, 250 NE2d 819 (1969). Thus, where the statement is offered to show only the state of mind of a person at a given time it should be admitted, with appropriate instructions. The testimony of Carpenter’s statement to the plaintiff should have been admitted insofar as Wood was concerned.

In this case, the question of whether the plaintiff — in accepting the ride with Carpenter after the drinking bout and in falling asleep immediately .upon getting into the pickup truck — was guilty of wilful and wanton conduct, was clearly a question of fact for , the jury’s determination. See: Hamas v. Payne, 107 Ill App 2d 316, 323, 246 NE2d 1 (1969); Dursch v. Fair, 61 Ill App2d 273, 285, 209 NE2d 509 (1965); Anderson v. Launer, 13 Ill App2d 530, 537, 142 NE2d 838 (1957).

The evidence disclosed that the plaintiff was a considerable distance from his home; that on prior occasions, Carpenter and the plaintiff had stopped at the tavern for Carpenter to have a beer without any apparent problems; that when leaving the tavern, Carpenter’s eyes appeared glassy to the plaintiff, but his speech and gait were normal; and that the plaintiff did not think Carpenter was intoxicated. As the above-cited cases indicate, when one person who has accompanied another drinking, then rides with him and even falls asleep leaving the driver alone with his task, it will normally be within the province of the jury under the particular facts of each case, to determine whether the guest was guilty of wilful and wanton conduct in so doing. The jury’s determination in this regard was not contrary to the manifest weight of the evidence.

The plaintiff’s judgment was in the sum of $380,000. The essential testimony indicated that he had a 100% impairment of the function of his right arm, 50% impairment of the function of his left arm and a 10% impairment of both legs. The plaintiff’s mother testified that she cares for him in that he is unable to do a number of ordinary tasks for himself. He suffered second and third degree burns over more than 70% of his body, including his face. He suffered contractures of the hands, wrists, arms and face, a broken nose and ribs. His right hand was paralyzed, and both hands are in a wristdrop position.

At the date of the trial, the plaintiff had spent sixteen months in hospitals, during five separate confinements, had undergone approximately twenty-six operations and could expect eleven more. The medical expenses to date totalled close to $36,000, and future medical expenses would be approximately $10,600. The plaintiff was eighteen years of age at the time of his injury. His loss of earnings — present and future expected — ■ as testified to by an economist, totalled $318,600. The economist also testified that the cost of custodial care, assuming that the plaintiff’s parents could care for him during the balance of their life expectancies, would total $42,900. It would thus appear that the total damages awarded by the jury was not excessive, even if the said sum of $42,900 — the alleged cost of such custodial care — ■ were excluded.

If the elements of damage presented for the jury’s consideration are proper under the facts of the case, then the assessment of damages is preeminently for the jury. Lau v. West Towns Bus Co., 16 Ill2d 442, 452, 158 NE2d 63 (1959). No two cases will be identical in reference to the nature of the injuries suffered, but other awards have been upheld as not excessive which are somewhat in line with that made by the jury in this case. See: Kaspar v. Clinton-Jackson Corp., 118 Ill App2d 364, 254 NE2d 826 (1969); Hulke v. International Mfg. Co., 14 Ill App2d 5, 142 NE2d 717 (1967).

Clearly, the plaintiff was entitled to substantial damages. Reasonable men could be expected to differ as to the amount. Considering all of the factors, the amount of the damages was not so clearly excessive as to require us to disturb the jury’s verdict on this ground. Murphy v. Lindahl, 24 Ill App2d 461, 472,165 NE2d 340 (1960).

The defendant argues, however, that the testimony of the economist as to the estimated cost of $50 per week for a daytime maid from the date of the death of the plaintiff’s mother — based upon her life expectancy — to the date of the death of the plaintiff — based upon his life expectancy — which would total $42,900, was too speculative. Wood argues that there was no adequate evidence that the plaintiff would require such custodial care.

The economist testified as an expert, and gave his estimated cost of custodial care based on the assumption that the plaintiff would need such care. We do not believe that there was sufficient evidence in this record to support the hypothesis that the plaintiff would need such care for the rest of his life. The doctor who testified to the loss of function, particularly in the right arm, stated: “Now, whether that means custodial care to you, I don’t know.” The evidence disclosed that the plaintiff could be left alone, and without assistance could take care of his personal hygiene, could move about, make a sandwich, and even drive a car. We believe, under these circumstances, that there was an absence of basic and essential facts necessary to support an award for such custodial care, and that the testimony as to the cost of future custodial care was too speculative and conjectural to have any probative value. Abramson v. Levinson, 112 Ill App2d 42, 47, 250 NE2d 796 (1969); Marshall v. First American Nat. Bank of Nashville, 91 Ill App2d 47, 53, 233 NE2d 430 (1968).

It is impossible for us to tell the extent to which the $42,900 figure for custodial care entered into the final determination of the jury. Obviously, however, this testimony could not have increased the total amount of the verdict more than $42,900.

Under these circumstances, the judgment of the Circuit Court will be affirmed upon the filing by the plaintiff, within thirty days from the finality of this judgment, of his consent to a remittitur of $42,900; otherwise, the judgment is reversed and the cause is remanded for a new trial on the issue of damages only.

Judgment affirmed upon filing of a consent to remittitur within thirty days: otherwise, judgment is reversed and cause is remanded.

ABRAHAMSON and MORAN, JJ., concur.


source: Caselaw Access Project

author: MR. PRESIDING JUSTICE DAVIS

license: Public Domain

text:
    William A. Phelps, Plaintiff-Appellant, v. The Elgin Academy, Hospital Service Corporation (Blue Cross, an Illinois Medical Service) Blue Shield, Defendants, Hospital Service Corporation (Blue Cross), Defendant-Appellee.
    Gen. No. 69-197.
    Second District.
    July 13,1970.

      Sidney Z. Karasik, of Chicago, for appellant.
    Miller, Gorham, Wescott and Adams, of Chicago, for appellee.
   MR. PRESIDING JUSTICE DAVIS

delivered the opinion of the court.

William A. Phelps, plaintiff, filed a two-count complaint to recover benefits under a group medical and surgical expense insurance contract issued to his former employer, The Elgin Academy, by Hospital Service Corporation (Blue Cross) and Illinois Medical Service (Blue Shield). In Count II of the complaint, the two insurance companies were made defendants. Blue Cross filed a motion for summary judgment in its favor on this count and the plaintiff filed a similar countermotion. The trial court entered summary judgment on behalf of Blue Cross and expressly found that there was no just cause for delaying an appeal of the judgment. The plaintiff has prosecuted this appeal.

In Count II of the complaint, the plaintiff alleged that prior to April 1, 1968, he was employed by The Elgin Academy, and was covered as a “subscriber” under the insurance contracts with the defendant insurance companies. He alleged that premiums were paid by a deduction from his wages; that he assumed, at all pertinent times, that he was covered by such insurance; that he terminated his employment on April 1, 1968, the same date on which the subscription certificates evidencing his membership and insurance coverage became effective; that the business manager of The Elgin Academy assured him that his insurance would be maintained until he could become eligible for new insurance under a group plan of a new employer; that on September 15, 1988, he entered the Aurora hospital and incurred a hospital bill in the sum of $509.85 and a doctor bill in the sum of $69; that at such time he had not been notified of any cancellation of his insurance and had assumed that he still had coverage; and that it was not until after he submitted these bills that he received notice of the retroactive cancellation of his coverage.

Blue Cross, in its motion for summary judgment and supporting affidavit, asserted, in essence, that the plaintiff had ended his employment no later than April 1, 1968 — the date that the certificates were issued and delivered; that no premiums were paid by him after that date; that the subscription certificates provided for their automatic termination upon the cessation of employment, or failure of premium payment; and that the plaintiff was not thereafter entitled to any benefits under the plan. Blue Cross further asserted in its motion and affidavit that subsequent to April 9, 1968, it was advised by The Elgin Academy of the termination of Phelps’ employment.

In his countermotion for summary judgment, the plaintiff stated that there was no genuine triable issue of fact; that the defendant took no action to terminate or cancel the coverage until the hospital and medical bills had been incurred; and that the attempt thereafter to give notice of retroactive cancellation constituted a waiver on the part of Blue Cross to assert any defenses it might have to the policy.

In this appeal, the plaintiff contends that The Elgin Academy induced him to believe that he had policy coverage when in fact he did not, and that Blue Cross is estopped by this conduct from denying coverage, notwithstanding the certificate provision for the termination of benefits on the cessation of employment.

The plaintiff has cited numerous cases, but relies most heavily on Neider v. Continental Assur. Co., 213 La 621, 35 So2d 237, 2 ALR2d 846 (1948). In that case, the deceased employee was insured under a group policy which provided that the insurance would cease at the due date of the premium to which the employee failed to make the required contribution, the premiums to be paid monthly in advance. The employer would deduct the monthly premium contributions currently from the insured’s payroll earnings; and in event the insured had no earnings, he had to pay his monthly contributions to the employer in cash. Under the accounting procedure used by the employer, wages were paid twice a month, two weeks after they had been earned. When the deceased, because of illness, was dropped from the payroll February 19, he received pay on March 15 for the time he had worked since February 15. However, since the monthly deductions for the insurance premiums were made currently, and the insured was not on the employer’s payroll in March, the employer made no deduction for the premium payment due in March. The insured failed personally to make a cash payment in March. His belated payments were refunded, and he died shortly thereafter.

In Neider, the court based its decision in favor of the beneficiary of the policy on equitable grounds, holding that the employer owed to the employee — as part of its duty of good faith — the obligation of informing him of anything required by him to keep the policy in effect, and the time that the payments were due; and that the employer was in this respect, the agent of the insurer. The court stated that in view of the complicated situation relative to payroll dates and deductions, it was easy to understand how the insured could become confused as to when he was required to make contributions in cash. In the annotation which follows the case in 2 ALR2d 852, it is suggested that the result is primarily attributable to the accounting system used by the employer which, in the court’s view of the case, caused the insured to become confused as to when he was required to make cash contributions if he were not working. We believe that the Neider rationale must be limited to the particular facts of that case, and that it is clearly distinguishable from the case at bar.

Under less compelling circumstances than those of Neider, we believe that an employee must normally be charged with the knowledge of the terms of a group insurance policy. County of Williamson v. Standard Acc. Ins. Co., 32 Ill App2d 363, 366, 178 NE2d 149 (1961); Roehrig v. Missouri State Life Ins. Co., 251 Ill App 434, 441 (1929); Annotation: 2 ALR2d 852, 853. The plaintiff here relies upon the provisions of his subscription certificate for the benefits which he claims; he cannot do this and at the same time lightly explain away the other clauses of the instrument which preclude his recovery. Borg-Warner Corp. v. Industrial Commission, 23 Ill2d 441, 445,178 NE2d 323 (1961).

The plaintiff’s contention — that The Elgin Academy was the agent of the defendant, Blue Shield, in inducing him to believe that he would remain insured after he left the employment of the Academy — is against the great weight of authority. Boseman v. Connecticut General Life Ins. Co., 301 US 196, 204, 57 S Ct 686, 690, 110 ALR 732 (1937); 44 Am Jur2d, Insurance, § 1877. Employers, in doing the various acts relative to group insurance coverage of their employees, act for themselves and their employees, and not as agents for the insurers.

Furthermore, it is neither alleged in the plaintiff’s pleadings that The Elgin Academy acted as agent for the defendant, Blue Shield, nor that Blue Shield should be liable by reason of estoppel. The issues in litigation must be framed by the pleadings. An issue can neither be sustained by evidence absent the corresponding pleading, nor by a pleading without supporting evidence. Burke v. Burke, 12 Ill2d 483, 487, 147 NE2d 373 (1958); Broberg v. Mann, 66 Ill App2d 134, 137, 213 NE 2d 89 (1965). Parenthetically, we might add that while the plaintiff has cited numerous cases supporting the rule that an insurance company may waive policy provisions, in all of the cases cited, the companies were either engaged in a longstanding business practice which constituted a waiver, or were deemed to have had knowledge through an agent of circumstances giving rise to a waiver of the policy provisions. This is not the situation in the case at bar.

The parties hereto agree that there was no triable issue of fact, and that the case was one properly to be decided on summary judgment. For the reasons hereinabove set forth, we believe that the judgment of the trial court was correct and that it must, therefore, be affirmed.

Our decision pertains only to Count II of the complaint and does not purport to decide the liability of The Elgin Academy, if any, as asserted in Count I of the complaint.

Judgment affirmed.

MORAN and SEIDENFELD, JJ., concur.


author: CRAVEN, P. J.,

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Gene Warrington, Defendant-Appellant.
    Gen. Nos. 11,211, 11,212. (Consolidated.)
    Fourth District.
    July 13,1970.
    Rehearing denied August 11,1970.
    Sorling, Catron and Hardin, of Springfield (George William Cullen and Patrick V. Reilly, of counsel), for appellant.
    Richard A. Hollis, State’s Attorney of Sangamon County, of Springfield, and Robert James Steigmann, Assistant State’s Attorney, for appellee.
   CRAVEN, P. J.,

delivered the opinion of the court.

The defendant’s employer obtained a permit from the Division of Highways to transport over certain Illinois highways an overweight and overwidth vehicle. By the terms of the permit, permission was given to move a tractor with dozer attached, weighing 70,000 pounds, mounted on a 6-axle tractor-semitrailer, License No. 8098V, gross 106,000 pounds, with a width of 11 feet, 11 inches. Permission was to move over a certain designated route during daylight hours. The permit carried the notation “VOID IF LIMITATIONS STATED HEREIN ARE EXCEEDED.” (Emphasis in original.)

The defendant Warrington began the trip with the permit in his possession with the load as described in the permit, using a tractor bearing the license number described in the permit. En route, the tractor developed difficulties and was taken to a repair shop. A new tractor was substituted and with the new tractor the defendant proceeded on the course described in the permit. The substituted tractor bore a different license number and was approximately 3,000 pounds lighter than the original vehicle.

While en route, a State policeman stopped the defendant, inspected the permit and took the unit to a weighing station where it was weighed-in at 90,220 pounds gross weight. This was under the weight limitation specified in the permit but was 16,940 pounds overweight for a vehicle traveling without a permit. The unit was also within the width limitations of the permit but overwidth assuming no permit. Inasmuch as the tractor being used was not the one described in the permit, citations were issued for overweight and overwidth as though no permit were in existence.

A bench trial in the Circuit Court of Sangamon County resulted in a finding of guilty and the imposition of fines in the amounts of $1,694 for overweight and $25 for overwidth. This appeal is from the finding of guilty and the fines thus imposed.

It is the position of the State that the use of the tractor other than the one described by license number in the permit effectively voided the permit for all purposes. In People v. Manikas, 106 Ill App2d 315, 246 NE2d 142 (2nd Dist 1969), Mr. Justice Davis, speaking for the Appellate Court, Second District, held that a driver whose operator’s license had been revoked and to whom a restricted permit had been issued, who drives in violation of the restrictions imposed by the permit, is guilty of the offense of driving while his operator’s license is revoked. Here it is urged that this case is authority for the proposition that deviation from the terms of the permit warrants conviction as though no permit had been issued.

We are also cited to the case of People v. Kueper, 111 Ill App2d 42, 249 NE2d 335 (5th Dist 1969), where the Appellate Court held that a defendant driving an overweight vehicle with a permit would be fined on the basis of no valid permit where his load exceeded the authority contained in the permit. This case contains an excellent discussion as to the rule-making power of the Department and the various rules and regulations promulgated by the Department to implement the statutes involved. We are in accord with the holding in Kueper and the discussion there found. In Kueper, however, the permit was voided when the weight limitations specified in it were exceeded. In the instant case, there was no action by the defendant in violation of the limitations of the permit except the transfer of the load from one tractor to another and lighter tractor bearing different license plates. We do not deem this to have been a limitation of the permit. It does not relate to either weight or width, which is the obvious purpose of the two sections cited and of the permit procedures.

Likewise, in Manikas, the object and purpose of the legislation therein involved was to remove undesirable operators from the highway or to permit of limited use under a restricted driving permit. The defendant in that case voided his restricted permit when he violated its express terms.

The language that permit is voided if limitations stated in it are exceeded can only relate to the legislative limitations with which sections 222 and 228 of chapter 95%, Ill Rev Stats 1967, are concerned, that is, weight and width, and possibly rate and hours of travel. The license number of the tractor is not such a limitation, nor do we deem it a specific description of the vehicle used as required in section 230 (b) of chapter 95%.

In this case, there was no violation of the substance of the permit and the weight and width limitations were well within the scope of the permit. The judgments of the Circuit Court of Sangamon County finding violations must be and the same are reversed.

Judgments reversed.

SMITH and TRAPP, JJ., concur.


author: EBERSPACHER, J.

text:
    Carl Roberson, Ilar Roberson and Willard E. Toler, d/b/a Roberson Brothers Lumber Company, Third-Party Defendant and Additional Third-Party Plaintiff-Appellee, v. Knupp Insurance Agency, Additional Third-Party Defendant-Appellant.
    Gen. No. 69-77.
    Fifth District.
    July 16,1970.
    Rehearing denied August 10,1970.

      Garrison & Garrison, of Marion, for appellant.
    Hanagan & Dousman, of Mt. Vernon and John H. Carter, of Anna, for appellee.
   EBERSPACHER, J.

This is a tort action for indemnification alleging that the defendant insurance agency (hereinafter called “Knupp”) negligently failed to procure Workmen’s Compensation Insurance coverage as requested by the plaintiff and that this failure resulted in damage to the plaintiff in the amount of $18,793.74.

The case was tried by jury and resulted in a verdict for the plaintiff for $18,793.74. Judgment was entered on the verdict. The post-trial motion of the defendant seeking judgment notwithstanding the verdict, or in the alternative, a new trial, was denied and appeal is taken from the verdict and judgment entered thereon.

On August 5, 1960, William Jennings sustained injury arising out of and in the course of his employment while employed by L. H. Cavender cutting timber. An award was made by the Industrial Commission in the sum of $18,793.74, and a judgment was entered against Cavender on the award in the Circuit Court of Johnson County, Illinois, on November 12, 1964. On November 4, 1964, Cavender filed a third-party complaint against Carl Roberson, liar Roberson and Willard E. Toler, d/b/a Roberson Brothers Lumber Company (hereinafter called “Roberson Brothers”), alleging that on and prior to August 5, 1960, Cavender had paid premiums for Workmen’s Compensation Insurance to Roberson Brothers covering himself and all persons working for him in connection with the work performed exclusively for Roberson Brothers; and that they accepted such premiums and held out to Cavender that such premiums would be applied to the overall premiums for Workmen’s Compensation Insurance covering all Roberson Brothers’ employees. The complaint asked judgment against Roberson Brothers for whatever sum might be adjudged against Cavender and in favor of Jennings. The answer of Roberson Brothers denied the material allegations of the complaint.

On July 7, 1965, Roberson Brothers filed their complaint against Knupp Insurance Agency (hereinafter called “Knupp”) and Bituminous Casualty Corporation (hereinafter called “Bituminous”). The complaint was dismissed as to Bituminous and Knupp, but Roberson Brothers were given leave to file an amended complaint against Knupp.

Roberson Brothers filed an amended complaint against Knupp, praying judgment for whatever amount may be adjudged against Roberson on the complaint of Cavender. Knupp filed a motion to dismiss the amended complaint of Roberson Brothers. An order was entered continuing the hearing on the motion of Knupp to dismiss the amended complaint of Roberson Brothers and all other pleadings until such time as a final judgment was entered on the complaint of Cavender against Roberson Brothers. On January 16, 1967, a judgment order was filed wherein Roberson Brothers were ordered to pay the amount of $18,793.74 to L. H. Cavender. Notice of the hearing on the complaint of Cavender against Roberson Brothers was not given Knupp and he did not know of the hearing. The motion of Knupp to dismiss the amended complaint of Roberson Brothers was denied.

Roberson Brothers, by their second amended third-party complaint as amended by interlineation on the day of trial alleged that Knupp failed to obtain riders, endorsements and amendments to Workmen’s Compensation Insurance Policy No. 312635 and alleged that Roberson Brothers relied upon the advice of and procurement by Knupp of endorsements to said policy; and that the policy procured for plaintiffs by Knupp did not provide the benefits requested and that Knupp caused plaintiff and Cavender to rely upon the policy.

Two issues are raised on appeal: (1) That the Second Amended Third-Party Complaint (hereinafter called “complaint”) does not state a cause of action as a matter of law, and; (2) That the verdict of the jury is contrary to the law and the evidence.

Knupp contends that in order for Roberson to recover as indemnitee it must allege and prove the actionable facts which create the liability of Knupp as indemnitor. With this proposition we agree. 42 CJS, Indemnity, § 32(a) (2), p 618. The complaint refers to and incorporates by reference the judgment entered on the award to Jennings, the complaint of Cavender against Roberson and that Roberson had a claim against Knupp for whatever amount it may be required to pay to Cavender and prays for judgment against Knupp in that amount. The facts alleged are set forth above and it is our opinion that the complaint states a cause of action.

The well documented annotation in 29 ALR2d 175 sets forth the general proposition that when an agent or broker, who, with a view to compensation for his services, undertakes to procure insurance for another, and, unjustifiably or through his own fault or neglect, fails to do so, he is liable for any damages resulting therefrom. As stated in Johnson v. Illini Mut. Ins. Co., 18 Ill App2d 211, 216,151 NE2d 634, 637 (1958):

“If a broker neglects to procure insurance or does not follow instructions when obligated so to do, or if the policy obtained is void or materially defective through the broker’s fault, or if the principal suffers damage by reason of any mistake or act of omission or commission of the broker, the broker is liable to his principal for any loss he may have suffered thereby.”

The second contention of Knupp is that the verdict and judgment entered thereon are contrary to the law and evidence. The primary factual issue is whether Knupp assured Roberson he would obtain Workmen’s Compensation Insurance which would cover Roberson and his employees and Cavender and his employees. Plaintiff’s witness testified that either Knupp or a representative of Bituminous, in the presence of Knupp and in the presence of Cavender, assured them that their logging and lumbering operation would be covered. Knupp and the Bituminous representative denied the meeting and conversation took place. An Exhibit showed that the premiums paid included a logging or lumbering operation. On cross-examination, the representative of Bituminous conceded, despite his earlier denial, that it was possible he had been at the mill during the period in question. The trial court who also heard and saw the witnesses, passed on the sufficiency of the evidence in denying defendants’ motions for directed verdict at the close of plaintiff’s case and at the close of all the evidence and the post-trial motion. Under these circumstances, the verdict of the jury, who saw the witnesses and were in much better position to weigh credibility than this Court, must stand. This proposition is so universally true as to need no citation.

Judgment affirmed.

MORAN and GOLDENHERSH, JJ., concur.


author: MORAN, P. J.

text:
    Wesley Glen Smith, a Minor, by Robert W. Smith, His Next Friend and Robert W. Smith, Plaintiffs-Appellees, v. Richard D. Stopher, Administrator of the Estate of Cecil K. Stopher, Deceased, Defendant-Appellant.
    Gen. No. 69-87.
    Fifth District.
    July 20,1970.

      Burton C. Bernard and Joseph R. Davidson, of Granite City, for appellant.
    James J. Massa, of Collinsville, for appellees.
   MORAN, P. J.

This two-count personal injury suit was filed in the Magistrate Division of the Circuit Court of Madison County by Robert W. Smith on behalf of Wesley Glenn Smith, a minor bicyclist, for personal injuries, and by Robert W. Smith, his father and next friend, for medical expenses against Richard D. Stopher, Administrator of the Estate of Cecil K. Stopher who died after the accident and before the trial. Defendant made appropriate motions for directed verdicts and for judgments notwithstanding the verdicts which were denied. Judgments were entered on verdicts of $2,500 for the minor bicyclist on Count I, and for $915.75 for his father on Count II for the minor’s medical expenses. Defendant appeals.

The only questions on appeal are whether there was sufficient evidence of negligence on the part of the motorist and sufficient evidence of due care on the part of the bicyclist to create questions of fact for the jury.

The accident occurred between a bicycle being ridden by Wesley Glenn Smith, then ten years of age, and a camper type truck of defendant’s intestate near the intersection of Olive and California Streets in Collins-ville, Elinois. These streets intersect at right angles with Olive Street running north-south and California Street running east-west. The surrounding area is residential and recreational. The back yard of the Helen Rarick residence is in the area adjacent to the northwest corner of the intersection. Her driveway extends from California Street at a point 58 feet west of the west edge of Olive Street. West of the driveway along the north side of California Street is a thirty mile per hour speed sign. Both California and Olive Streets are 21 feet wide. Across from the Rarick residence on the northeast corner of the intersection is Fletcher Field, a fenced sports playground with a frontage on Olive Street of at least 300 feet. This field has a ground level lower than Olive Street so that the fence presents no obstruction to the view when approaching the intersection from any direction. The level of Olive Street, as it approaches California from the north, is slightly upward. The level of California Street, as it approaches Olive from the east, is more sharply upward. These streets intersect at the crest of the hill formed by these two inclines.

Since the motorist died before trial, the minor plaintiff was precluded from testifying to the facts of the occurrence under the Dead Man’s Act (Ill Rev Stats 1965, c 51, § 2). Since there were no eyewitnesses to the actual collision, the case is based on circumstantial evidence.

Michael Motsinger, aged ten at the time of the accident and a schoolmate of the minor plaintiff, testified that on October 29 he was at Fletcher Field sitting on the sidelines watching a football game. He heard a woman on the corner holler and turned to look to his left over his shoulder and saw Wesley Smith falling from a bicycle while traveling in a westerly direction on the north edge of California Street. He indicated on a photograph and diagram of the intersection that Wesley fell at a spot approximately 30 to 35 feet west of Olive Street on the North side of California. At the same time he saw a truck, the back of which was six to ten feet in front of Wesley when he was falling. He did not see any impact between the truck and bicycle. After Wesley fell and got up, apparently unhurt, Mike turned around and continued to watch the football game. Shortly thereafter Mike’s father arrived at the scene of the collision and Mike later learned that it was his bicycle Wesley had been riding. The front wheel of the bicycle had been turned around and jammed under the frame, but there was no permanent damage.

Richard D. Stopher, son and administrator of the estate of Cecil K. Stopher, called under section 60 of the Civil Practice Act, testified to a conversation he had with his father about the accident sometime in December, 1966, as follows:

Q. “Had your father ever told you it was the bicycle of the boy that made the mark?”
A. “Only by implication.”
Q. “And how by implication, what was the nature of your conversation with him?”
A. “Well, we were just traveling along, we were talking about the accident and I asked him, inquired about it, and he showed me the corner where it happened, and I asked him where he had been hit, and he said in the back.”
Q. “Okay.”
A. “Then I investigated it later and I just assumed that’s what he meant where the bump was.”
Q. “So he told you he had been hit in the back, is that right?”
A. “Yes, sir.”
Q. “Did he tell you it was also on the right-hand side, right-hand back of his truck?”
A. “Yes.”

He testified that later he saw a dent in the right rear fender of his father’s truck, directly over the hub cap.

Wendell James testified that as a policeman for the City of Collinsville he investigated the bicycle-truck collision which occurred on October 29, 1966, at the intersection of Olive and California Streets. The accident occurred at about noon when it was dry and overcast. He arrived at the accident scene at least twenty minutes after its occurrence and it was apparent that the camper and bicycle had been moved from their positions at the time of the accident. He never did see the bicycle. He found no skid marks, debris or any other evidence indicating where the point of impact was. The speed limit in this area was 30 miles per hour. He found no indication of excessive speed. He did not know how the accident occurred, but Cecil Stopher told him at the time that Wesley Smith had run into his truck on the right side. He gave inconsistent statements concerning the distance of the truck from the intersection when he arrived at the scene of the accident, at one point stating that the truck was approximately 30 feet from the east edge of Olive Street, and at other points stating the truck was approximately 10 feet west of the speed sign, or approximately 130 feet east of Olive Street. He con-eluded by stating that he believed the truck was closer to the speed sign than the stop sign, but the truck was facing west on the north side of California. He spoke to Cecil Stopher, who was sitting in the rear seat of his police car, and he did not smell any liquor on his breath. He also testified that he has had occasion to drive on California Street in a westerly direction through the Olive-California intersection and that the incline is not so steep as to cause a driver’s view of a bicycle on Olive Street to be obstructed. He stated that one could even see the speed limit sign. This sign was located on the north side of California Street, 140 feet west of Olive.

Helen Rarick testified that she lives on the northwest corner of the intersection of Olive and California Streets and that at the time of the accident she was hanging clothes in her backyard. She did not see the impact. A pickup truck was stopped, heading west, and was west of her driveway. There was also a red station wagon parked on the other side of her driveway. She said she saw a man putting a bicycle into it. She does not know anything about the accident, but on this particular morning there were 150 to 200 children in Fletcher Field. She did not scream nor did she hear anyone else scream at the time of the accident. There were cars parked on both sides of Olive Street and the children were making a lot of noise.

Billy Motsinger, age 37, testified for the defendant that Mike Motsinger, who had testified previously, is his son. On the day of the accident he was driving in the area of Olive and California and saw his son’s bicycle. He first thought it was 10 to 12 feet from the corner of Olive and California up on the bank, but after observing the intersection prior to his testifying, he decided it was closer to the driveway when he first saw it. He then testified that when he first saw the truck it was right beside the bicycle. He straightened the wheel and Wesley Smith later rode it away. He testified that when you are east of Olive Street, driving toward Olive on California, you have to be right up on the intersection before you get a clear view of the houses, cars and bicycles. He also testified that he had never looked to see from what distance he had a clear view of that intersection and "that he had been relying on one of defendant’s photographs for this observation.

Defendant argues that the record is so devoid of probative evidence of defendant’s intestate’s negligence and the minor plaintiff’s due care that any judgment must be the result of conjecture and speculation. He relies on familiar principles that the negligence on the part of the defendant is a question of fact which must be proved and cannot be based on mere conjecture or speculation; that the mere happening of an accident does not of itself raise any presumption of negligence on the part of the defendant or presumption of due care on the part of the plaintiff; that proof of a mere possibility is not sufficient to prove a fact; that a theory cannot be said to be established by circumstantial evidence unless the facts are of such a nature and so related as to make it the only conclusion that could reasonably be drawn and that it cannot be said one fact can be inferred When the existence of another inconsistent fact can be drawn with equal certainty.

Defendant argues that the evidence proves only that the motorist and bicyclist collided at or near the intersection of California and Olive Streets and that since no witness related any facts which established the routes of either the motorist or the bicyclist or established the conduct of either of them immediately prior to the accident, that any judgment as to the proximate cause of this accident must rely totally on speculation and conjecture and consequently, the plaintiffs have not met their burden of proof.

While we are mindful of the principles cited by defendant, we are also aware of the principle that the absence of eyewitnesses does not always prevent a case from being established and under such circumstances the law requires only the highest proof of which the case is susceptible or which can reasonably be made. Schwanz v. Sangamo Elec. Co., 294 Ill App 395,13 NE2d 1007.

It is provided by statute that a person riding a bicycle is subject to the same provisions of the Uniform Traffic Act which are applicable to the driver of any other vehicle except those provisions which by their nature can have no application (Ill Rev Stats 1965, c 95%, § 121), and it is also provided that vehicles have a duty to drive on the right half of the roadway and that any vehicle proceeding at less than the normal speed of traffic at the time and place and under the conditions then existing shall be driven in the right-hand lane available for traffic, or as close as practicable to the right-hand curb or edge of the roadway. (Ill Rev Stats 1965, c 95%, § 151.) From the testimony of Mike Mot-singer, the jury might have inferred that Wesley Smith was in a place on the highway where he should have been just prior to the accident.

There was also in force at the time of this accident a statute which required that “the driver of a vehicle overtaking another vehicle proceeding in the same direction shall pass to the left thereof at a safe distance and shall not again drive to the right side of the roadway until safely clear of the overtaken vehicle.” (Ill Rev Stats 1965, c 95%, § 153 (a).) This section has been held applicable in automobile-bicycle collision situations. Conway v. Tamborini, 68 Ill App2d 190, 215 NE 2d 303. The issues of defendant’s intestate’s negligence submitted to the jury included failure to pass to the left of minor plaintiff at a safe distance, failure to maintain a proper lookout, failure to drive at a reasonable and proper speed.

There was testimony in this case that plaintiff was on the side of the road where he was supposed to be at the time he was falling from the bicycle, 30 to 35 feet west of Olive Street, and that the truck was just six to ten feet ahead of him at that time. From this the jury could have inferred that the defendant’s intestate’s truck had just struck the minor plaintiff when the minor was in a place on the highway where he was legally supposed to be. There was also testimony and the photographs show that one driving in a westerly direction on California Street approaching the place of the accident would have a clear and unobstructed view. From this, the jury could have concluded that the defendant’s intestate negligently failed to pass to the left of the minor plaintiff at a safe distance in violation of El Rev Stats 1965, c 95%, § 153(a), or that he negligently failed to maintain a proper lookout. Reasonable inferences may be drawn from undisputed or established facts, and all that can be reasonably required to establish controverted facts is that the evidence, whether direct or circumstantial, creates a less probability leading, on the whole, to a satisfactory conclusion. Lindroth v. Walgreen Co., 407 Ill 121, 94 NE2d 847; Town of Cicero v. Industrial Commission, 404 Ill 487, 89 NE2d 354; Devine v. Delano, 272 El 166, Ill NE 742.

Defendant also argues that plaintiffs are precluded from recovering damages because there is no evidence of due care on the part of Wesley Smith, ten years of age at the time of the accident. We find no merit to this contention. American Nat. Bank & Trust Co. of Chicago v. Pennsylvania R. Co., 52 Ill App2d 406, 202 NE2d 79, affd, 35 Ill2d 145, 219 NE2d 529; Strasma v. Lemke, 111 Ill App2d 377, 250 NE2d 305.

For the foregoing reasons the judgment of the Circuit Court of Madison County is affirmed.

Judgment affirmed.

EBERSPACHER and GOLDENHERSH, JJ., concur.


author: JONES, J.

text:
    Gordon E. Adams, Plaintiff-Appellant, v. J. I. Case Company, a Corporation and Jones Farm Supply, a Corporation, Defendants-Appellees.
    Gen. No. 11,140.
    Fourth District.
    July 23,1970.

      James G. Linder, of Georgetown, for appellant.

      Gunn, Hickman, Kesler and Jenkins, of Danville (Robert Z. Hickman, of counsel), and Lowenstein and Hubbard, of Danville (Fred L. Hubbard, of counsel), for appellees.
   JONES, J.

Plaintiff appeals from an order of the Circuit Court granting defendants’ motions to dismiss his Second Amended Complaint.

The case is presented to us upon the pleadings. It appears from plaintiff’s Second Amended Complaint that defendant J. I. Case Company, a corporation, is the manufacturer, (and is hereinafter referred to as manufacturer), defendant Jones Farm Supply, a corporation, is the seller (and is hereinafter referred to as dealer), and plaintiff is the purchaser of a crawler loader tractor. Plaintiff’s Second Amended Complaint contains five counts, each directed against both defendants and each based upon essentially the same factual allegations. In each count of the complaint the plaintiff uses language that would pertain to breach of express warranty, '"breach of implied warranty, manufacturer’s strict liability and negligent manufacture. One count also alludes to the remedy of restitution. The prayers for relief in the several counts seek both direct and consequential damages. Each of the defendants filed its Motion to Dismiss the Second Amended Complaint. After argument the trial court entered a final order of dismissal of plaintiff’s Second Amended Complaint, filing a Memorandum of Opinion which recited that plaintiff had elected to stand on his pleadings requesting involuntary dismissal with prejudice so an appeal would immediately lie. The Memorandum recited:

“The Second Amended Complaint attempts to recover on a number of legal theories, some inconsistent, some barred by admitted written warranty, some by the provisions of the Uniform Code, and some by operation of law. All are intermingled in numerous counts, none of which conform to the requirements of Section 38, Subsection 2 of the Civil Practice Act. Rather than examine in detail all of the defects of the complaint, the Court will rather indicate substantial merit in most of the points raised in the two Motions to Dismiss.
“The Complaint is therefore subject to dismissal for numerous reasons including duplicity.”

Defendants’ Motions to Dismiss for failure of the complaint to state a cause of action admit all well-pleaded facts and while the Second Amended Complaint is to be construed strictly against plaintiff, it is entitled to all reasonable inferences which can be drawn from the well-pleaded facts. However, defendants’ motions do not admit conclusions of law or conclusions of facts unsupported by allegations of specific facts upon which such conclusions rest. Rhodes Pharmacal Co. v. Continental Can Co., 72 Ill App2d 362, 219 NE2d 726. Plaintiff has suffered the ultimate sanction for bad pleading — final dismissal of his complaint. The basis of the trial court’s order of dismissal is that plaintiff’s Second Amended Complaint is legally insufficient in both form and substance.

The complaint was found insufficient in form because of its failure to comply with section 33(2) of the Civil Practice Act (Ill Rev Stats 1967, c 110, § 33 (2)) which provides that each separate claim or cause of action upon which a separate recovery might be had shall be stated in a separate count . . . and each count . . . shall be separately pleaded, designated and numbered, and each shall be divided into paragraphs numbered consecutively, each paragraph containing as nearly as may be a separate allegation. It must be conceded that when tested against this requirement of the Civil Practice Act, plaintiff’s complaint leaves something to be desired, because it asserts elements of each of several theories of liability in its separate counts. However, before there may be a final dismissal of plaintiff’s complaint, consideration must be given to other sections of the Civil Practice Act. Section 4 of the Civil Practice Act provides that the Act shall be liberally construed, to the end that controversies may be speedily and finally determined according to the substantive rights of the parties, that the rule that statutes in derogation of the common law must be strictly construed does not apply to the Civil Practice Act or rules made pursuant thereto. Section 33(3) provides that pleadings shall be liberally construed with a view to doing substantial justice between the parties: Section 42(2) provides that no pleading is bad in substance which contains such information as reasonably informs the opposite party of the nature of the claim or defense which he is called upon to meet. The trend of the cases interpreting the apparent conflict arising between section 33 (2) on the one hand with sections 4, 33(3) and 42(2) evidences the intention of courts to follow the requirements for liberal construction and uphold complaints which contain sufficient allegations to inform the defendant of a valid claim under a general class of cases to the end that controversies may be decided on their merits and not because of the adherence to a rigid form of pleading required by a strict interpretation of the Civil Practice Act. In Consolidated Const. Co. v. Great Lakes Plumbing, 90 Ill App2d 196, 234 NE2d 378, the court said:

“Recent decisions such as Kita v. Young Men’s Christian Ass’n of Metropolitan Chicago, 47 Ill App 2d 409, 198 NE2d 174 (1964), and Miller v. Veterans of Foreign Wars of United States, 56 Ill App2d 343, 206 NE2d 316 (1965), have stressed that ‘pleadings shall be liberally construed with a view to doing substantial justice between the parties/ Section 33 (3).
“In Kita, the court said (p 425):
‘The intent of the Civil Practice Act was to get away from the formality and rigidity of the common-law pleading. In Crosby v. Weil, 382 Ill 538, 548, 48 NE2d 386, 391, the court states that “It is only necessary that the allegations state a cause of action.” The court quotes section 42 of the Civil Practice Act and says further:
‘ “. . . Under the Civil Practice Act, pleadings are to be liberally construed with the view toward doing substantial justice between the parties and no pleading is to be deemed bad in substance which shall contain such information as shall reasonably inform the opposite party of the nature of the claim. (Frasier v. Finlay, 375 Ill 78.) With the adoption of the Civil Practice Act there has been a definite attempt to abolish the so-called technicalities of common-law pleading. . . .”
‘. . . If the courts, by their restrictive interpretation of that Act, again place the rights of the plaintiff and defendant in a legal straitjacket, they are pursuing the path pointed out by Judge Clark. The purpose of the law is to do substantial justice and the courts must exercise restraint in construing a statute which seeks to reach that end/ ”

In Fitzgerald v. Van Buskirk, 96 Ill App2d 432, 239 NE2d 330, the court in construing the above sections of the Civil Practice Act stated:

“These sections of the Civil Practice Act are designed and intended to permit controversies to be determined according to substantial justice between the parties, and not according to the technicalities or niceties of pleading. Under the Act, the test of the sufficiency of the complaint is whether it informs the defendant of a valid claim under a general class of eases.” (Citations.)

In the case of Church v. Adler, 350 Ill App 471, 113 NE2d 327, it is held:

“The Civil Practice Act does not authorize so-called notice pleading as plaintiff contends, nor does it require strict pleading as is urged by defendant. A pleading must contain allegations of fact sufficient to state a cause of action. Burr v. State Bank of St. Charles, 344 Ill App 332; Stenwall v. Bergstrom, 398 Ill 377. Verbosity and looseness of form are to be discouraged and in some cases may render the pleading fatally defective. Whether a cause of action is stated is to be judged with the admonitions of liberal construction and reasonable information in mind and the whole complaint must be considered, not merely disconnected parts. Legal conclusions are to be disregarded. Stenwall v. Bergstrom, supra; Heuer v. Davis, 336 Ill App 224.”

Turning to the Second Amended Complaint, we find that the first twelve paragraphs of Count I allege that both manufacturer and dealer are foreign corporations authorized to do business in Illinois; that manufacturer delivered the tractor to dealer for sale to the general public and it was purchased by plaintiff on March 3, 1966, for an installment price of $14,896.75, and that installment payments are current. Further, that plaintiff is an experienced operator and at all times operated the tractor in a careful and prudent manner so as to protect it and that plaintiff was engaged in a bulldozing business as a general contractor for hire at $12 per hour, which business included performancy of various, types of work all of which was known to the defendants. At the time tractor was purchased, plaintiff had many jobs contracted and others promised which would keep him busy with the tractor, which was known by the defendants. Plaintiff had purchased several tractors similar to the one involved from the defendants and had never experienced any serious difficulty with any of them and he completely relied upon the skill and ability of the defendants to produce and service a good satisfactory tractor of the type purchased. The tractor purchased was a defective tractor unable to do the customary work performed by plaintiff which defects were (a) radiator was defective and whenever temperature was over 75 degrees Fahrenheit the tractor would overheat so that it was dangerous to operate and (b) hydraulic system for raising and lowering the bucket was defective and would not hold the bucket up, so that it was dangerous to operate the tractor. These same twelve paragraphs were adopted and alleged in the four succeeding counts of the complaint. After the first twelve paragraphs, Count I continued by alleging that defendants through the use of reasonable care would have discovered the defects prior to the sale, but they failed to exercise reasonable care in the manufacturing of the tractor. Plaintiff called the defects to the attention of defendants on April 19, 1966, but defendants did not correct the defects until July 17, 1967, causing plaintiff to loose 810 work hours while the tractor was in defendant’s shop, for which he would have received $12 per hour, for a loss of $9,720, and plaintiff also suffered the loss of many jobs and a loss of reputation because of his inability to perform jobs which he had contracted to do, all because of the defective tractor. Count I prays damages from the defendants in the sum of $9,995 and costs.

Count I of plaintiff’s complaint contains incompléte elements of causes of action in implied warranty, strict liability for defective manufacturing and negligence in manufacturing. None of the theories of liability are stated completely. It is not a well-pleaded count and even with the application of rules requiring liberal construction of pleadings, it cannot fairly be said that defendants are informed of a valid claim under a general class of cases. We conclude that defendants’ motions to dismiss Count I were properly allowed.

Count II of the Second Amended Complaint adopts and realleges the first twelve paragraphs of Count I as the first twelve paragraphs of Count II. Then follow allegations that defendants sold the tractor with a written warranty, which is set forth verbatim, and that under the terms of the warranty defendants were under a duty to correct the tractor within a reasonable time whenever it was in the shop for work, but they were wilfully dilatory in making the needed repairs, often letting said tractor “set” (sic) for weeks at a time without working on it. Further, that defendants carelessly and negligently worked on the tractor making many changes and alterations that were not needed or required and which did not correct its defective performance; that the defects in the tractor should have been corrected by defendants within a week’s time, but instead, they kept the tractor for 810 working hours, thereby causing plaintiff to lose all that time, plus loss of jobs and reputation. Count II concludes with a prayer for damages in the amount of $9,995 and costs.

The written warranty provides that it is the warranty of both the manufacturer and the dealer and binds them to repair or replace defective parts for a period of twelve months after delivery. It also provides “. . . In no event shall Dealer or Company be liable for consequential damage of any kind or nature . . .” and that “. . . This warranty is in lieu of all other warranties and conditions, express, implied, or statutory, and all other obligations or liabilities on the part of the Dealer and Company. No representative of the company has authority to change the terms of this Warranty in any manner whatsoever. . . .” The reverse side of the warranty card was signed by the plaintiff under this language: “The undersigned agree to the terms and conditions of the Warranty as set forth on the reverse side hereof.”

Defendants’ motions attack Count II upon the grounds that it is duplicitous, that it is insufficient in law because the written warranty expressly provides that neither dealer nor company will be liable for consequential damage of any kind or nature, and that the action is barred by the written warranty which declares it is in lieu of all other warranties and conditions, express, implied or statutory.

In view of the liberal construction to be accorded pleadings we do not view the duplicity of Count II as being fatal. As stated in Savoie v. Town of Bourbonnais, 339 Ill App 551, 90 NE2d 645:

“The alleged formal deficiencies of the complaint, urged by defendants, to the effect that numerous causes of action were pleaded in the same count in violation of the Civil Practice Act (ch 110, par 157, § 33, subpar (2), Ill Rev Stats [Jones Ill Stats Ann 104.033, subpar (2)]), are without merit, inasmuch as the various breaches of duty alleged by plaintiff were based upon the same set of facts, and could be properly treated as a single cause of action, and set forth in the same count.”

Duplicitous pleading, though not in conformity with section 33(2) of the Civil Practice Act, has also been tolerated in Nepil v. Zeman, 321 Ill App 308, 52 NE2d 836.

The question of duplicity aside, the substantive allegations of Count II are that a breach of the written warranty has occurred and in compliance with the warranty, the requisite repairs have been made. The crux is, however, that defendants were under a duty to make timely repairs called for by their warranty but the defendants took an inordinate amount of time in making the repairs, that they were wilfully dilatory or were careless and negligent in their work of compliance, with the result that plaintiff has suffered direct and consequential damage. Otherwise stated, having agreed to repair or replace the defective parts of the tractor, there arose an implied warranty that the manufacturer and dealer would correct the defects within a reasonable time, but because they were wilfully dilatory or negligent, they did not do so.

May an implied warranty be found and may consequential damages be sought despite the fact that the written warranty given at the time of sale provides it is in lieu of all other warranties, express, implied, or statutory, limits liability to that of repairs or replacement of defective parts, and negates liability for consequential damages? Defendants vigorously argue the negative of the proposition. They point out that plaintiff agreed to the terms and conditions of that warranty and placed his signature upon it to evidence the fact. They also point out that this case is governed by the Uniform Commercial Code; pertinent provisions of which authorize the restrictive provisions of warranty. They cite section 2-316 of the Uniform Commercial Code (c 26, § 2-316, Ill Rev Stats 1967) which authorizes exclusion or modification of warranties. Subsection (1) of that section provides:

“(1) Words or conduct relevant to the creation of an express warranty and words or conduct tending to negate or limit warranty shall be construed wherever reasonable as consistent with each other; but subject to the provisions of this Article on parol or extrinsic evidence (section 2-202) negation or limitation is inoperative to the extent that such construction is unreasonable.”

Section (2) of that section reads as follows:

“(2) Subject to subsection (3), to exclude^or modify the implied warranty of merchantability or any part of it the language must mention merchantability and in ease of a writing must be conspicuous, and to exclude or modify any implied warranty of fitness the exclusion must be by a writing and conspicuous. Language to exclude all implied warranties of fitness is sufficient if it states, for example, that ‘There are no warranties which extend beyond the description on the face hereof.’ ”

And subsection (4) of that same section provides:

“(4) Remedies for breach of warranty can be limited in accordance with the provisions of this Article on liquidation or limitation of damages and on contractual modification of remedy (sections 2-718 and 2-719).”

They also cite section 2-719(a) and (b) which provides:

“(a) the agreement may provide for remedies in addition to or in substitution for those provided in this Article and may limit or alter the measure of damages recoverable under this Article, as by limiting the buyer’s remedies to return of the goods
and repayment of the price or to repair and replacement of nonconforming goods or parts

and

“(b) resort to a remedy as provided is optional unless the remedy is expressly agreed to be exclusive, in which case it is the sole remedy.”

When tested by these Uniform Commercial Code criteria, the restrictive warranty is indeed authorized and proper. The plaintiff-buyer accepted the tractor with the knowledge that the manufacturer and dealer had limited their liability to repair or replacement, as they may properly do under the above sections of the Code so long as that limitation is not unreasonable. Plaintiff does not plead any coercive, fraudulent, overreaching or unconscionable sales tactics, so presumably the original limitation of liability was not unreasonable and from all that appears, the plaintiff made his purchase with full knowledge of the limitations. But plaintiff could not have made his bargain and purchase with knowledge that defendants would be unreasonable, or, in the words of his complaint, wilfully dilatory or careless and negligent in making good their warranty in the event of its breach. The manufacturer and the dealer have agreed in their warranty to repair or replace defective parts while also limiting their liability to that extent. Had they reasonably complied with their agreement contained in the warranty, they would be in a position to claim the benefits of their stated limited liability and to restrict plaintiff to his stated remedy. / The limitations of remedy and of liability are not separable from the obligations of the warranty. Repudiation of the obligations of the warranty destroys its benefits. The complaint alleges facts that would constitute a repudiation by the defendants of their obligations under the warranty, that repudiation consisting of their wilful failure or their careless and negligent compliance. It should be obvious that they cannot at once repudiate their obligation under their warranty and assert its provisions beneficial to them. Thus, the allegations of Count II of plaintiff’s complaint invoke other provisions of the Uniform Commercial Code., Section 2-719(2) provides:

“Where circumstances cause an exclusive or limited remedy to fail of its essential purpose, remedy may be had as provided in this Act.”

Failure of the exclusive remedy provided in the warranty is readily found in the allegation that defendants were wilfully dilatory or careless and negligent in complying with their obligations under the warranty. In considering the issue those allegations stand admitted by defendants’ motions.

Provisions of the Code providing plaintiff’s remedy are readily found. Section 2-314 deals with Implied Warranty; Merchantability; Usage of Trade. Subsection (3) of that section provides:

“Unless excluded or modified (section 2-316) other implied warranties may arise from course of dealing or usage of trade.”

The Official Comment on this section states that it is to make explicit that usage of trade and course of dealing can create warranties and that they are implied rather than express warranties and thus subject to exclusion or modification under UCC section 2-316. It is clear that an implied warranty for reasonably prompt and timely repairs upon breach of the express warranty may arise under this Code section. Though excluded by the written warranty as authorized in UCC section 2-316, defendants repudiation for failure to reasonably comply avoids the exclusion. The allegations of Count II that the parties had prior dealings, that the defendants knew plaintiff’s business and knew of his contracts for work, and the further allegation that the repair work should take only one week are sufficient, if proven, to give rise to the implied warranty.

As to the measure of damages to which plaintiff is entitled, UCC section 2-714(2) and (3) of the Code provides:

“(2) The measure of damages for breach of warranty is the difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted, unless special circumstances show proximate damages of a different amount.
“(3) In a proper case any incidental and consequential" damages under the next section may also be recovered.”

Plaintiff has prayed consequential damages. They may be recovered under the above section only if special circumstances show proximate damages of a definite amount. UCC section 2-715(2), relating to buyers incidental and consequential damages, provides:

“Consequential damages resulting from the seller’s breach include
“(a) any loss resulting from general or particular requirements and needs of which the seller at the time of contracting had reason to know and which could not reasonably be prevented by cover or otherwise. . . .”

The defendants call attention to the case of Keystone Diesel Engine Co. v. Irwin, 411 Pa 222, 191 A2d 376, in which it was held that the “special circumstances” were the communication to the seller at the time of entering into the contract of sufficient facts to make it apparent that the subsequently claimed loss of profits was within the reasonable contemplation of the parties. The court remarked' that the buyer had alleged no facts which would make the seller aware that the buyer intended to hold him responsible for any loss of profits resulting from inability to use the engine there involved. Our attention is also called to Flug v. Craft Mfg. Co., 3 Ill App2d 56, 120 NE2d 666 (1954), a case decided prior to the adoption of the Uniform Commercial Code in which it was stated:

“Before loss of profits can be used as a measure of damages, the contract should expressly or by implication from its terms contemplate such damages; the defaulting party must fairly be presumed to have understood the extent of his liability for loss of profits and to have assented thereto; and the loss of profits when used as a measure of damages should be fairly compensatory to the vendee and not unjust to the vendor. In the instant case, the only reference to any contract which might involve a loss of profits is the notation on the order which showed that the dies were being made in connection with governmental work. That is clearly not enough to establish that thereby it was expressly or by implication agreed that damages for loss of profits was in contemplation.”

Other Illinois cases, notably, Phelan v. Andrews, 52 Ill 486; and Fruehauf Trailer Co. v. Lydick, 325 Ill App 28, 50 NE2d 551, hold that damages for loss of time of use of equipment arising from seller’s breach may be recovered and there is no requirement that liability for such loss be contemplated by the parties at the time of the contract. In their Official Comment upon UCC section 2-715(2), its framers make it clear that the “tacit agreement” test for the recovery of consequential damages is rejected. The language of that section should not be so narrowly construed as to require a prior understanding or agreement that the seller would be bound for consequential damages in the event of his breach. If that is the holding of the Keystone and Flug cases it must be rejected. The Official Comment further states that the older Common-Law rule which made the seller liable for all consequential damages of which he had “reason to know” in advance is followed, modified to require reasonable prevention of loss by cover or otherwise. The Code provision and the Official Comment make it clear that strictures are not to be applied to the plain meaning of the Code by adherence to what the parties may have agreed or contemplated at the time of sale. Rather, each case is to be considered on its merits, touching upon the issue of special circumstances arising in that particular case. In the instant case, it is alleged that the plaintiff’s particular needs in his tractor business and his existing contracts were known to the defendants and that plaintiff was relying on their judgment; but notwithstanding this, the defendants were wilfully dilatory or careless and negligent in making the corrections or repairs called for in their warranty. We hold these allegations to be sufficient to show “special circumstances” required by UCC section 2-714(2) and that consequential damages have resulted and may be recovered pursuant to UCC section 2-715 (2) (a).

We conclude that Count II of plaintiff’s complaint states a cause of action and defendants’ motions to dismiss were not well taken and should have been denied.

Count III of the Second Amended Complaint adopts and realleges paragraphs 1 through 12 of Count I. It then alleges that the defendants by printed pamphlets, circulars, advertisements and oral statements expressly warranted the tractor to be a good sound tractor in satisfactory mechanical condition, able to perform the work for which they knew plaintiff would use it; that plaintiff relied upon defendants’ skill and reputation and their aforesaid express warranty. It then realleges, in identical language, defects already alleged in the first twelve paragraphs. Further, that the defects were called to the attention of the defendant on April 19, 1966, but corrections were not made within a reasonable time and, in fact, not until July 17, 1967; that the defendant’s failure to correct the defects within a reasonable time was due to (a) the tractor would sit for days in defendant’s shop without their attempting to work on it; (b) defendants were carelessly negligent and untrained in making changes and often made changes that did not help; and (c) negligently and unreasonably ordered plaintiff to operate the tractor on an extremely hot day over his protest that the tractor was boiling and dangerous to operate so that they could make tests, which operating injured the motor so that the plaintiff was forced to have it overhauled at his own expense. It is further alleged that because of defendants’ conduct, the plaintiff lost 810 work hours at $12 per hour and was forced to have the tractor overhauled at a cost of $598.37, and suffered the loss of jobs and loss of reputation. Count III prays damages in the amount of $9,995 plus costs.

Defendants’ motions attacked Count III on substantially the same grounds raised against Count II. The only real difference between the allegations of Count II and Count III is that of the origin of the express warranty. In Count II the warranty was written and given plaintiff at the time of sale. In Count III it is contained in pamphlets, circulars, advertisements and oral statements. While the prayer for damages in both counts is for $9,995, Count III places in issue an item of $598.37 for an overhaul alleged to have been required as the result of defendants negligently and unreasonably requiring plaintiff to operate the tractor on an extremely hot day, resulting in damage to it.

Our holding and reasoning in Count III would be the same as that for Count II. Although it is essentially the same cause of action, it should be allowed to stand to afford plaintiff the opportunity of attempting to prove damages resulting from the enforced overhaul of the tractor.

Count IV of the Second Amended Complaint adopts and realleges paragraphs 1 through 12 of Count I. It then alleges the tractor was sold with an implied warranty that the tractor was a good, satisfactory tractor capable of doing the work for which it was sold, but was, in fact, defective and not corrected by defendants until July 17, 1967, thereby causing plaintiff to suffer loss of 810 work hours at $12 per hour, plus loss of business and reputation. The prayer for relief asks damages in the amount of $9,995 plus costs.

Defendants’ motions to dismiss this count were properly granted. The implied warranty pleaded here is expressly barred by the written warranty furnished plaintiff at the sale. There are no allegations of facts or circumstances in Count IV to remove it from the limitations set forth in the warranty.

Count V of the Second Amended Complaint adopts and realleges paragraphs 1 through 12 of Count I. It then alleges that after plaintiff had given defendants a reasonable time to correct the defective tractor, he returned it and demanded another tractor or his money, but defendants refused; that the defendants refusal to give plaintiff a new tractor or refund his money so he could have purchased another tractor elsewhere caused plaintiff to lose 810 hours of work at $12 per hour, plus the loss of other jobs and loss of reputation.

As in the case with Count IV, the cause of action sought to be alleged in Count V is barred by the written warranty and there are no allegations of facts or circumstances to remove it from the limitations set forth in the warranty. Defendants’ motions to dismiss Count V were properly granted.

The order of the trial court dismissing Counts I, IV and V of plaintiff’s Second Amended Complaint is affirmed. The order dismissing Counts II and III of plaintiff’s Second Amended Complaint is reversed and the cause is remanded for further proceedings.

Affirmed in part, reversed in part, and remanded.

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