text:
    Thomas Houston, Plaintiff-Appellant, v. Richard K. Churchill, Defendant-Appellee.
    Gen. No. 52,212.
    First District, First Division.
    September 30, 1968.

      Beermann, Swerdlove and Woloshin, of Chicago (Miles N. Beermann, of counsel), for appellant.
    Stern, Rotheiser & Pildes, and Jerome H. Torshen, of Chicago (Jerome H. Torshen, of counsel), for appellee.
   MR. PRESIDING JUSTICE BURMAN

delivered the opinion of the court.

This is an appeal from an order entered pursuant to a petition brought under section 72 of the Civil Practice Act, Ill Rev Stats 1967, c 110, § 72, vacating a default judgment entered against the defendant, Richard K. Churchill, in a personal injury action.

The record reveals that a complaint was filed on March 7,1966, seeking damages for personal injuries sustained by the plaintiff as a result of a collision between the parties on July 15, 1964. Although the defendant was served with summons on April 28, 1966, no appearance was filed on his behalf. On August 12, 1966, an order of default was entered and set for prove up on September 13, 1966, on the issue of plaintiff’s damages. Evidence was heard and a judgment was entered in the sum of Five Thousand Seven Hundred Dollars ($5,700) in favor of the plaintiff, Thomas Houston. An affidavit for garnishment was filed on January 30, 1967, naming Merit Mutual Insurance Company as garnishee, and summons was served on the firm on February 2, 1967.

On February 6, 1967, a sworn petition to vacate the default judgment was filed by the defendant’s attorney. It was alleged therein that the defendant forwarded the summons “via defendant’s insurance broker to his insurance company”; that “through an administrative error, no appearance was filed on behalf of the defendant”; that “plaintiff’s attorneys knew that defendant was represented by an insurance company”; that plaintiff filed a motion for an order of default, but did not give notice to the defendant or his insurance company; that plaintiff did not give notice to the defendant of the default judgment until well over 30 days had passed and that defendant has a good and meritorious defense to this cause. On that same day an order was entered allowing the defendant to file an amended petition setting forth an affirmative defense. On February 10, the defendant filed an affidavit setting forth his defense to the suit for damages in detail. On that day the plaintiff was given leave to file a counteraffidavit.

In the sworn counteraffidavit filed by the plaintiff’s attorney, it was alleged that plaintiff had advised his attorneys that the defendant said he was insured by Merit Insurance Company; that on September 23, 1964, a notice of attorney’s lien was served upon the defendant as evidenced by his signature on the return receipt; that on December 15, 1964, a second letter was mailed to the defendant; that on December 29, 1964, a letter was mailed to Merit Insurance Company requesting a response, but none was received; that on June 10, 1966, a letter was sent to defendant advising him that he had been served with summons and no appearance or answer had been filed on his behalf; that on August 12, 1966, an order of default was entered against defendant and an ex parte judgment was entered on September 13, 1966; that the plaintiff notified the Secretary of State of the unpaid judgment in order that action could be taken to revoke defendant’s privileges and license plates; that on December 1, 1966, the plaintiff mailed two letters, one to the defendant and one to the Merit Mutual Insurance Company, advising them of the judgment (copies of the aforementioned letters were attached to the affidavit); that thereafter on January 13, 1967, the plaintiff’s attorneys were contacted by the company’s lawyer; and that on January 16, 1967, the plaintiff’s attorneys were contacted by the defendant’s lawyer regarding defendant’s license revocation. It was alleged that the facts indicate a total lack of diligence on the part of both the defendant and the Company.

On February 16, 1967, an order was entered vacating the judgment and the cause was set for trial. It is from this order that the plaintiff appeals.

It is the principal contention of the defendant that the Court correctly vacated the default judgment because the defendant was neither given notice of the default proceedings nor was action taken against defendant or notification given to him of the default judgment until more than thirty days had elapsed from the date of its entry. The defendant contends that a petition filed under section 72 of the Civil Practice Act is addressed to the equitable powers of the court citing Elfman v. Evanston Bus Co., 27 Ill2d 609, 190 NE2d 348, and fairness requires that a default judgment not be enforced when it is attended by unfair, unjust or unconscionable circumstances.

It is well settled that a plaintiff who does not notify a defendant of a default judgment stands more vulnerable to a section 72 motion. Decisions have characterized the plaintiff’s failure to notify the defendant of the judgment as “casting a cloud” on the proceedings. E. g., Elfman v. Evanston Bus Co., 27 Ill2d 609, 190 NE 2d 348; Ellman v. DeRuiter, 412 Ill 285, 106 NE2d 350; Dann v. Gumbiner, 29 Ill App2d 374, 173 NE2d 525. On the other hand, the party seeking to vacate a default judgment must show he exercised due diligence. As stated in Johnson-Olson Floor Coverings, Inc. v. Branthaver, 94 Ill App2d 394, 398, 236 NE2d 903, 905: “It is quite clear . . . that the defendant must show that his failure to defend was a result of excusable mistake, and that under the circumstances he acted reasonably, and therefore not negligently, when he failed to initially resist the judgment.”

The defendant, in his brief, cites a number of cases where default judgments were set aside in circumstances in which notification of the judgment was not given to the defaulted party until more than thirty days subsequent to the date of the entry of the judgment. In all of these cases, however, either the defendant had done something when he learned of the suit against him (and his conduct, while ineffective, was excusable and, under the circumstances, reasonable) or the conduct of the plaintiff was calculated to mislead the defendant. In Ellman v. DeRuiter, 412 Ill 285, 106 NE2d 350, the Supreme Court vacated a default judgment because the plaintiff’s attorney, without revealing the default judgments had already been entered in the civil action, represented to the defendant’s lawyer that he would not be ready to talk settlement until after the first of the year (after the thirty day period had run). In Elfman v. Evanston Bus Co., 27 Ill2d 609, 190 NE2d 348, the judgment was vacated only because of the unconscionable circumstances attending the prove up wherein plaintiff proved up more special damages than she had been willing to accept as full settlement from the defendant during prior settlement negotiations. The plaintiff in Dann v. Gumbiner, 29 Ill App2d 374, 173 NE2d 525, expressly instructed his attorney to withhold giving notice to defendant’s insurance company for about four months. The facts in Stehman v. Reichhold Chemicals, Inc., 57 Ill App2d 40, 206 NE2d 299, indicate that the parties had been cooperating with each other in regard to attaching liability for an accident to a third party; that plaintiff apparently recognized no liability on the part of the defendant and that the plaintiff waited twenty-eight months to secure a default order against defendant and waited nine weeks after the judgment to issue an execution. In both Mutual Truck Parts Co., Inc. v. Nelson, 69 Ill App2d 30, 216 NE2d 301, and Vosnos v. Wenzel, 44 Ill App2d 192, 194 NE2d 484, the defendants had filed appearances and answers, and in both cases the court clerk made an error in relating the trial data to defendant’s attorney. Moreover, in both these cases, defendant’s attorneys acted immediately after learning of the default judgments by filing petitions pursuant to section 72. In Detres v. Rojo, 80 Ill App2d 38, 225 NE2d 100, although plaintiff’s counsel knew the defendant was seriously contesting the claim and that his counsel withdrew, he did not serve the defendant with an execution within thirty days after the entry of the default judgment. Spencer v. American United Cab Ass’n, 59 Ill App 2d 165, 208 NE2d 118, involved a defendant insured by an insurance company that had been liquidated by the State of Illinois. The defendants, upon being served, forwarded the summons and complaint to the Liquidator who had charge of the affairs and records of their defunct insurer. Default and judgment were entered within thirty-two days of the return date and the first notice thereof was received by them through garnishment proceedings filed after thirty days had elapsed from the entry of the judgment. They immediately applied to the court for relief.

The defendant in the case at bar argues that the failure to give notice of the default proceeding and the withholding of notification until more than thirty days after the entry of the default judgment attends the default judgment in this case with “unfair, unjust and unconscionable circumstances.” We are not so persuaded. Indeed the contrary is true.

The petition to vacate the judgment merely alleges that the Merit Mutual Insurance Company failed to file an appearance for the defendant “through an administrative error.” Not only did the Company fail to file the appearance and defend, but it proceeded to ignore the post-judgment letter received by them. Although this letter was mailed on December 1, 1966, the Company did not contact the plaintiff until January 13, 1967, a lapse of forty-four days. It was not until the garnishment proceeding was instituted against it that the Company took steps to vacate the judgment and this was done only after sixty days had elapsed from the date of receipt of the December 1,1966, letter.

We are not unmindful that section 72 invokes the equitable powers of the court as justice and fairness require to the end that one may not enforce a default judgment attended by unfair, unjust or unconscionable circumstances. Elfman v. Evanston Bus Co., 27 Ill2d 609, 190 NE2d 348. However, it is not intended to relieve a party from the consequences of his own mistake or negligence. Gundersen v. Rainbow Cleaners & Laundry Inc., 77 Ill App2d 268, 222 NE2d 41.

In the recent case of Johnson-OIson Floor Coverings, Inc. v. Branthaver, 94 Ill App2d 394, 236 NE2d 903, the plaintiff filed a citation to discover assets thirty days after the entry of a default judgment. The defendant had not defended against the original claim and had not consulted his attorney thinking that his pending bankruptcy relieved him of the responsibility of responding to a suit in a state court. The Appellate Court pointed out that when the defendant was served with summons he had not yet been adjudged bankrupt nor were his debts discharged. The Court held that the defendant was guilty of inexcusable negligence in that he was untrained in the law and had no right to conclude, as a matter of law, that he was immune from plaintiff’s claim by virtue of the pending bankruptcy proceeding.

In the instant case the defendant does not attempt to show cause for ignoring the warning letters mailed to him. The Merit Mutual Insurance Company allowed forty-four days to elapse before contacting the plaintiff’s attorneys and only after a garnishment proceeding was taken against them did they concern themselves with the lawsuit and take steps to vacate the judgment. The conduct of the defendant and his insurance company negates the claim that the plaintiff’s failure to serve an execution before expiration of term time prevented defendant from seeking relief within the required thirty days. Section 72 of the Civil Practice Act is not intended to relieve a defendant from the consequences of his own negligence. Till v. Kara, 22 Ill App 2d 502, 161 NE2d 363. It is our opinion that the trial court abused its discretion in vacating the judgment and is therefore reversed with directions to reinstate the original judgment.

Order reversed.

ADESKO and MURPHY, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    People of the State of Illinois, Appellee, v. Robert J. Emmerich, Appellant.
    Gen. No. 52,602. (Abstract of Decision.)
    First District, First Division.
    September 30, 1968.


author: MR. PRESIDING JUSTICE BURKE

text:
    Norman Gall, Plaintiff-Appellee, v. Flash Cab Company, an Illinois Corporation, and Anthony Streeter, Defendant-Appellant.
    Gen. No. 52,591.
    First District, Second Division.
    October 1, 1968.
    Irvin Tischer, of Chicago, for appellant.
    Phillip S. Makin, of Chicago (Louis P. Miller, of counsel) , for appellee.
   MR. PRESIDING JUSTICE BURKE

delivered the opinion of the court.

On July 29, 1965, on motion of the court, an order was entered reciting that “the cause duly coming on pretrial, and none of the parties responding,” the cause be dismissed for want of prosecution at plaintiff’s costs.

On July 28, 1967, plaintiff filed a “Notice of Motion” that at 4:00 p. m. on that day he would present a petition which recited that the attorney for the plaintiff “never received notice by mail, telephone, or otherwise, of the fact that a D.W.P. order” had been entered “for failure of counsel for plaintiff to appear at such pretrial conference,” and that the order will work a hardship upon the plaintiff and deny him his day in court. Plaintiff prayed that the order dismissing the cause for want of prosecution be set aside.

On July 28, 1967, the court allowed the filing of the motion to vacate the order of dismissal. On August 4, 1967, Flash Cab Company filed its “Special and Limited Appearance” attacking the jurisdiction of the court to pass upon the matter under section 72 of the Civil Practice Act because the petition was not filed within two years after the dismissal order of July 29, 1965, and because the parties to the petition did not receive notice of the filing of the petition as provided by law. The relief requested in the “Special and Limited Appearance” was denied by the court in an order stamp-dated August 14, 1967, but hand-dated August 4, 1967, and Flash Cab Company was given leave to plead to the petition. Flash Cab Company filed a motion to strike and dismiss the petition on August 8, 1967 and in an order stamp-dated August 14, 1967 but hand-dated August 11, 1967, the court denied the motion to strike and dismiss the petition, vacated the order dismissing the cause for want of prosecution, and reinstated the cause upon the trial call. Flash Cab Company appeals.

The two-year period within which the petition under section 72 of the Practice Act must be filed would expire on July 29, 1967. The petition was filed on July 28, 1967. Therefore, it was filed within the two-year limitation. The court entered the order and set it for hearing pursuant to Rule 2.2 of the Uniform Rules of the Circuit Court providing that emergency motions may in the discretion of the court be heard without giving prior notice. In the instant case a short notice was given. The court knowing that the limitation period was about to expire, recognized the right of the plaintiff to file the petition and set a time for a hearing thereon. This procedure preserved the right of the defendant to have its day in court in opposition to the petition.

The petition on its face shows a lack of diligence. The petition does not state that the plaintiff did not know that the case was on the pretrial call. The only ground advanced is that the attorney for the plaintiff did not receive a notice by mail, telephone, or otherwise of the fact of the dismissal. The petition shows that no one appeared for the plaintiff on the pretrial call. The petition does not offer any excuse for the failure to appear or for the delay in filing the petition until one day short of the two-year limitation period.

Plaintiff relies strongly on the case of Fennema v. Yander Aa, 93 Ill App2d 162, 236 NE2d 409. In that case, the Appellate Court found that an order dismissing a suit for injuries at a pretrial conference was void because counsel for the plaintiff had not received notice of the conference. However, in Esczuk v. Chicago Transit Authority, 39 Ill2d 464, 236 NE2d 719, decided after the Fennema case, the Supreme Court upheld an order of dismissal of a law suit at pretrial conference, stating at page 467:

“It is significant that although plaintiff denied knowledge of both the pretrial conference and of the dismissal, she does not allege that no notices were sent to her or to her attorney of record nor does she deny that notice of the pretrial and the dismissal were duly published in the Chicago Daily Law Bulletin. . . . The section 72 petition does not allege and there is no suggestion that plaintiff’s lack of knowledge was due in any way to fraud on the part of defendants or the court.
“. . . We realize that the great volume of litigation in metropolitan centers increases this burden and fairness requires an accommodation between courts and lawyers in matters of notices. Nevertheless the practical administration of justice requires that the litigant undertake the burden of following his case if this be possible.
“Rule 25 of the circuit court of Cook County in force at the time of the dismissal of this case provided as follows:
“ ‘Rule 25. Sec. 1. Parties shall take notice of all calls of the trial calendar as well as of all other calendars and lists provided for in these Rules.
“ ‘Sec. 2. Unless otherwise directed by the Executive Committee, notice of all calls shall be published in the Chicago Daily Law Bulletin not later than in its issue for the day on which the call is to be had.’
“In addition to such published notice the parties appear to agree that it was a generally accepted practice to send a post-card notice to attorneys of record both as to pretrial conferences and dismissals. There is no allegation that notice was not published in the Chicago Daily Law Bulletin or that post-card notices were not sent.
“Plaintiff merely claims she did not receive the post-card notices and did not see the notice in the Law Bulletin. The gist of her argument is that it is difficult, if not impossible, for a small law office to check each of its cases in the Law Bulletin. We do not agree. While the task is not an easy one, it is less onerous than to require the litigant to be in daily attendance at court to check his case. Cf. Bonney v. McClelland, 235 Ill 259.
“We do not believe that the facts alleged show such fraud, mistake or fundamental unfairness as would justify a collateral attack upon a final judgment nineteen months after its rendition.”

Because of the failure of the petition to make a reasonable showing of diligence the order stamp-dated August 14, 1967 but hand-dated August 11, 1967 vacating the order dismissing the cause for want of prosecution is reversed and the cause is remanded with directions to reinstate the dismissal order of July 29,1965.

Order reversed and cause remanded with directions.

McNAMARA and LYONS, JJ., concur.


author: MR. JUSTICE LYONS

text:
    Theodore Mierzejwski, Plaintiff, v. Chet Stronczek, d/b/a Crest Fuel and Material Transportation, Defendant, and Chet Stranczek, d/b/a Crest Fuel and Material Company, a/k/a Crest Leasing Company, Third-Party Plaintiff-Appellant, v. Allied Tube and Conduit Corporation, a Corporation, Third-Party DefendantAppellee.
    Gen. No. 52,163.
    First District, Second Division.
    October 1, 1968.

      John W. Gilligan, of Chicago (Joseph B. Lederleitner, of counsel), for appellant.
    John R Sullivan, of Chicago, for Allied Tube & Conduit Corporation, third-party defendant-appellee.
   MR. JUSTICE LYONS

delivered the opinion of the court.

This is a case involving a third-party proceeding for indemnity. The defendant third-party plaintiff, Chet Stranczek, d/b/a Crest Fuel & Material Company, a/k/a Crest Leasing Company, appeals from the entry of an order by the Circuit Court on January 16, 1967, striking and dismissing Counts I and II of his three-count complaint for indemnity against the instant defendant, Allied Tube and Conduit Corporation. The judgment order from which he takes this appeal, having disposed of fewer than all the claims asserted, contained the requisite finding of finality that “there is no just reason for delaying enforcement or appeal.” (Ill Rev Stats (1967) c 110A, par 304).

The dispute comes before this court limited in scope to the factual averments of the respective pleadings. We must assume accordingly as true for purposes of appellate determination, the facts well pleaded by the complaint under consideration which allegations are taken as uncontested by virtue of the admissions inherent in defendant’s motions to strike and dismiss. Rovekamp v. Central Const. Co., 45 Ill App2d 441,195 NE2d 756 (1964).

The ancillary proceeding at bar emanates from an original common-law action by one Theodore Mierzejwski brought against the instant plaintiff for personal injuries sustained in a vehicular mishap on May 15, 1965. By his complaint (attached as Exhibit B to the complaint now in issue), the injuries were described as having occurred when a certain truck in which Mierzejwski was riding as a passenger swerved out of control and over an embankment. The vehicle so involved was at that time under lease from the instant plaintiff to the third-party defendant and was being used by the latter’s employees, Mierzejwski and the driver, in the course and furtherance of their employer’s business. The facts indicate that the truck had remained in the uninterrupted possession and control of the third-party defendant for four months next preceding the accident.

By Mierzejwski’s complaint, plaintiff, as the lessor of the vehicle, was charged in two counts with certain alleged negligent acts and/or omissions proximately causing the injuries sustained; to wit, (1) failure of plaintiff to properly inspect, maintain and repair said vehicle and its appurtenances, and (2) failure of plaintiff to inspect the brakes of and/or the vehicle leased, his letting of the vehicle in a highly dangerous and defective condition, and failure to warn of a defective condition of which plaintiff knew or in the exercise of reasonable care should have known.

To this complaint, the instant plaintiff filed an answer alternatively denying or stating no knowledge as to each of the material averments thereof. Thereafter, by leave of court, plaintiff instituted the present proceedings by third-party complaint, impleading the lessee of the truck and attaching as Exhibit A thereto the written lease agreement between the immediate parties, dated January 2, 1965, in force at the time of the occurrence. With respect to the arguments advanced on appeal, the pertinent provisions of that agreement recited:

“3. The Lessee, at its own cost and expense, shall make all ordinary repairs necessary to maintain the said vehicle in good running condition; shall maintain each vehicle so it will present a neat appearance; and shall furnish all fuel, oil, lubricants and garage space for said vehicle.
“However, in case of breakdown due to structural or mechanical defects, the Lessor shall promptly repair the vehicle after receipt of notice from Lessee that any vehicle has become disabled. . . .
“5. The vehicle shall be operated by a safe, competent and duly-licensed driver selected, employed and under the orders and directions of and paid by the Lessee. . . .
“6. The Lessee shall be liable for all claims against Lessor or Lessee arising out of the negligent operation of the vehicles leased, and therefore shall reimburse Lessor for any judgment therefor or part thereof recovered against Lessor which is not satisfied out of the proceeds of insurance provided for in the following paragraph. . . .
“9. Motor vehicles leased hereby shall be under exclusive and complete possession, use, direction and control of Leassee [sic] during the period of this lease. . . .”

Plaintiff sounds this action over for indemnity in two alternative and mutually exclusive counts founded respectively upon principles of contract and tort liability. Count I predicates itself, inter alia, upon the contractual relationship and obligations of the parties under their lease agreement. It asserts, as the basis of the action, defendant’s breach of the express indemnity covenant of paragraph 6 thereof as well as the breach of an implied duty to perform its obligations under the contract in a reasonably safe manner.

By Count II in tort, plaintiff alleges that defendant, by and through its employee, operated and utilized the leased vehicle by improper use of the braking devices at both excessive speeds and without maintaining the proper lookout, and that this negligent conduct was the proximate cause for the complained of injuries to Mierzejwski. Plaintiff prays, on the basis of respondeat superior, for contribution as but a passive tort-feasor, if himself liable, from defendant as the more culpable or procuring wrongdoer for any sums he might be adjudged to suffer to the principal plaintiff.

Plaintiff’s prayer in Count III of the complaint (as amended) for property damage to the truck was not the object of dismissal below and is in no way involved in this appeal.

It is apparent from the state of this record that as to Count I of the complaint, the judgment order of dismissal should be vacated. Defendant had been represented in the trial court proceedings by separate counsel as to Counts I and II respectively, each having successfully entered a motion to strike and dismiss in its behalf. As to plaintiff’s pursuit of Count I of his complaint for contractual indemnity, defendant has neither been represented by counsel nor in any capacity endeavored to defend its cause in the reviewing court, albeit the prevailing party on the issue below. Counsel appearing and arguing in defendant’s behalf in this appeal has, moreover, expressly acknowledged to the court that his representation was limited to a defense of the dismissal of Count II.

Our recent holding in Halperin v. Darling & Co., 80 Ill App2d 358, 225 NE2d 92 (1967), involving a similar action brought upon the express indemnity provision of a lease, is not to be misconstrued as applicable to the present factual circumstance. There, unlike the case at bar, the asserted acts of negligence were those of the lessor who sought the benefit of the lessee’s express covenant to indemnify. By the peculiar circumstances manifesting themselves in the instant case, we are not in a position to say that justification exists for barring plaintiff’s pursuit of this action beyond the pleadings stage. Where, as here, the pleadings set forth allegations which evidence some possibility of recovery under the terms or tenor of the contract, the action is improperly dismissed on motion. Blaszak v. Union Tank Car Co., 37 Ill App2d 12, 184 NE2d 808 (1962); DeTienne v. S. N. Nielsen Co., 45 Ill App2d 231, 195 NE2d 240 (1963). In any event, where the moving party has in all respects perfected his appeal, the appellee’s acquiescence in and to the ex parte arguments advanced on appeal are deemed tantamount to a confession of error warranting a reversal and remandment of the cause without an initial examination into the merits of the case. Paulson v. Ades, 71 Ill App2d 464, 218 NE2d 836 (1966).

There remains to be resolved the single question of whether Count II of the complaint under consideration alleges sufficient provable facts to state a cause of action for contribution; i. e., indemnity. The expeditious solution offered by defendant, and with which we do not understand plaintiff to dispute in principle, bars as a general proposition attempts at contribution among joint tort-feasors. Our attention, however, has been called to the recognition and efforts of the courts of this State to mitigate the sometimes harsh consequences flowing from a rigid adherence to the absolute bar of the rule. Responding to these inequities, there has evolved, as is discussed in Sargent v. Interstate Bakeries, Inc., 86 Ill App2d 187, 229 NE2d 769 (1967), certain correlative principles of ad hoc application to meet the exigencies of particular situations.

Notable among these excepting circumstances is the judicially created theory of implied indemnity, whereby, on the basis of an imposed in law duty of care, a party seeking to be indemnified, whose fault is limited to negligence in a technical or passive sense, is allowed restitution from an indemnitor whose acts of causal negligence are active or primary in nature. Stewart v. Mister Softee of Illinois, Inc., 75 Ill App2d 328, 221 NE2d 11 (1966); Spivack v. Hara, 69 Ill App2d 22, 216 NE2d 173 (1966). The basis of the action can be of a noncontractual or quasi-contractual character; Reynolds v. Illinois Bell Tel. Co., 51 Ill App2d 334, 201 NE2d 322 (1964) founded upon the breach of this implied common-law duty. It is to this multifaceted legal theory that plaintiff addresses Count II of his complaint under the misnomer of a prayer for contribution.

While the underlying rationale for indemnity thus becomes apparent, some description of a rule to encompass the diverse situations by which it might arise continues to escape a workable definition, particularly absent an accurate measurable distinction between the meanings of active and passive or primary and secondary negligence. Feirieh, Third Party Practice, 1967 LF 236 (244). This anomaly, in turn, has occasioned a lack of uniformity in results from the application of the general principle to essentially similar factual cases. Compare Stewart v. Mister Softee of Illinois, Inc., 75 Ill App2d 328, 221 NE2d 11 (1966) and Sargent v. Interstate Bakeries, Inc., 86 Ill App2d 187, 229 NE2d 769 (1967).

Difficulties in implementing the rule have been further extended by the fairly recent advent of permissible third-party practice in our State. Pursuant to section 25 (2) of the Civil Practice Act, a defendant may now implead by third-party complaint any nonparty to the original action; “who is or may be liable to him for all or part of the plaintiff’s claim against him,” the statute conspicuously noting that; “Nothing herein . . . creates any substantive right to contribution among tort-feasors . . . which has not heretofore existed.” (Ill Rev Stats (1967) c 110, par 25(2).) While the objectives of the statute are administratively oriented to avoid multiplicity of lawsuits and a reduplication of evidence, it is of importance to the instant case to note that, by its use of terms, the permissible provisions of this section cannot be utilized as a tactical ploy for tendering or substituting a new defendant to the original plaintiff.

This restriction substantially reflects the premise upon which defendant argues in support of the dismissal of Count II. Directing the emphasis of its theory to the decisions in Shulman v. Chrysler Corp., 31 Ill App2d 168, 175 NE2d 590 (1961) and Shapiro v. Gulf, M. & O. R. Co., 256 F2d 193 (7th Cir, 1958), defendant contends that by Count II plaintiff interposes what would constitute a valid defense to the action asserted against him, but nonetheless an unauthorized method for the transferring of liability to another under the same claim or basis of relief. Defendant submits that, depending upon the eventual proofs adduced in Mierzejwski’s case, it appears from the face of the pleadings that plaintiff will be either primarily and individually responsible for his negligence or absolved from liability altogether, and as to either contingency, precluded from seeking indemnity. Such a position, we might add, has itself been criticized as tending to frustrate the purpose to be served by section 25 (2). Feirich, Third Party Practice, 1967 LF 236 (256).

In our opinion in the Shulman case, the facts were exactly the reverse of those now before us. There, the third-party plaintiff was sued for her negligent failure to apply the brakes of her vehicle causing a rear-end collision with the plaintiff. Miss Shulman filed a third-party complaint against Chrysler Corporation whom she alleged was in the business of manufacturing, selling and distributing Dodge automobiles through a certain authorized dealer who sold the vehicle in question to a member of her family in a defective condition. In Shulman, however, the indemnity action was advanced upon principles of strict liability absent some privity between the parties thereto. The defect complained of, moreover, bore no reasonable relationship to the independent charges of fault brought against the indemnitee. The case was not decided on the basis of the disparity of negligence. Defendant’s Shapiro case is similarly inapplicable. There, the third-party action was asserted by means of a cross claim by one codefendant against the other who were alleged to have participated in concurrent acts of negligence. Unlike the present case, the court in Shapiro was in a position to affirmatively conclude that the pleadings taken together showed the two parties to be joint tortfeasors, hence barring the third-party plaintiff from seeking contribution under the governing substantive law of Illinois.

In the instant case, such conclusions do not obtain from the pleadings. Defendant’s theory suffers from the misconception that the court is to view these pleadings in a vacuum. This, of course, would be to ignore the almost limitless developments of which the principal action is capable, for the pleadings may not, with the desired measure of accuracy, disclose the relative degrees of culpability of the conduct involved. As noted in Sargent v. Interstate Bakeries, Inc., 86 Ill App2d 187, 229 NE2d 769 (1967), allegations of negligence in either of the complaints may not be sustained by the evidence, disputed questions of fact might arise by virtue of conflicts in the testimony, and some allegations may be withdrawn or others added to conform to the proofs.

Accordingly, the third-party complaint, on the strength of its admitted factual averments, need only evidence some possibility of recovery. If the court cannot determine with certainty from the pleadings that the negligence set forth against the indemnitee in the original complaint is, in all its respects, primary in nature, and the complaint for indemnity cannot be said, as a matter of law, to allege only misconduct of a less culpable nature, then the decision as to who should bear the eventual burden of liability is one rightfully entitled to be reserved for a hearing on the merits of the cause. Miller v. De Witt, 37 Ill2d 273, 226 NE2d 630 (1967).

We think it thus apparent that a third-party plaintiff seeking indemnity should not, of necessity, be bound by the characterization of his particular conduct as active or primary, as it appears in the complaint in chief, which remains a question of fact for a jury or court to alone resolve after a hearing on the evidence. Miller v. DeWitt, supra; Sargent v. Interstate Bakeries, Inc., 86 Ill App2d 187, 229 NE2d 769 (1967); Campbell v. Joslyn Mfg. & Supply Co., 65 Ill App2d 344, 212 NE2d 512 (1965). Herein lies the unrealistic assumption upon which defendant’s reasoning must rely.

Here, we observe that both complaints allege unintentional and mutually independent acts of misfeasance and nonfeasance. There is no question but that the third-party principals shared a common interest involving reciprocal duties in their relationship to the injured party as well as one another, and that this relationship antedated the liability creating incident. By the first complaint, plaintiff is charged with negligent acts and/or omissions which are limited in their context to the defective condition of the leased vehicle, and in more specific terms its braking system.

While these averments would appear to address themselves to negligence of a primary character, the mere existence of these allegations in the original complaint should not be countenanced as grounds to foreclose the indemnitee upon his action over at the pleadings stage. By our interpretation of the cited authorities, it is not decisive that the separate acts of wrongdoing alleged by these two complaints differ in kind or that plaintiff endeavors to save himself harmless on the basis of the breach of a legal duty unrelated to that set forth in the complaint brought against him. So long as there is evidenced by the pleadings some foundation upon which one might weigh or measure the relative degrees of fault, we think the action to be appropriately taken.

To this extent at least, the question presented for determination is not one unprecedented in our jurisdiction. In Blaszak v. Union Tank Car Co., 37 Ill App2d 12, 184 NE2d 808 (1962), the lessor of a railroad tank car was sued for damages by the lessee’s employee for injuries sustained when the tank car lid blew off. The theory of that action was that the lessor (Union) had furnished a car in an unclean condition containing defective steam pipes and other appliances. Union filed a third-party complaint against the lessee (Shell) citing the parties’ “Car Service Agreement” and alleging that Shell had the duty to clean the tanker and see that it was in proper condition for shipment. The contract contained no express indemnity agreement by the lessee. Reversing the dismissal of the latter complaint, the court concluded:

“The pleadings here show that Shell and Union entered into a tank car leasing agreement under which Shell assumed some responsibility for the condition of the cars covered by the lease. . . . Until evidence is presented we cannot say whether plaintiff is entitled to relief, and if so, who was primarily responsible for the injuries. Therefore it was error to dismiss the third-party complaint.”

Concomitant with the spirit in which section 25 (2) was enacted, we would not think it appropriate to strictly confine in application the reasoning implicit in Blaszak to instances where the negligence asserted against the lessor of the chattel and, in turn, brought by it against the lessee for indemnity are different in degree but identical in kind. This we do not understand to be the proper criterion within the meaning of the foregoing discussion, lest the court were to be in dereliction of its duty to examine the entire realm of conceivable proofs in the two cases.

As between Mierzejwski and plaintiff, clearly the latter might well be liable, but as between plaintiff and the third-party defendant, that same contributory conduct may be shown to be substantially less culpable. The vehicle involved had remained out of plaintiff’s possession and control for approximately four continuous months preceding the accident. Among the other possibilities, it is not unreasonable to surmise that a jury could conclude that the defects complained of by Mierzejwski, assuming them to be true, merely furnished a condition upon which the defendant’s negligence operated to actively occasion the injuries in question. Accordingly, we cannot say with certainty, on the basis of these pleadings, that plaintiff’s particular conduct was any more or less culpable. As between the parties in privy to the dispute, we think that the pleadings suffice to demonstrate a common-law relationship which bears the potential of giving rise to a derivative duty to indemnify.

For the above reasons, the judgments as to both Counts I and II are reversed, and the cause is remanded with directions that the third-party defendant be compelled to answer.

Reversed and remanded with directions.

BURKE, P. J. and MCNAMARA, J., concur.

       Formerly Ill Rev Stats (1965) c 110, par 50(2) without substantive change.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Paulino E. Roldan, Defendant-Appellant.
    Gen. No. 52,937.
    First District, Second Division.
    October 1, 1968.

      Philip M. Basvic, of Chicago, for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Assistant State’s Attorney, of counsel), for appellee.
   MR. PRESIDING JUSTICE BURKE

delivered the opinion of the court.

Paulino E. Roldan appeals from a judgment of guilty in a bench trial wherein he was charged with burglary and sentenced to serve a term of one to three years in the penitentiary. Clarence Lieder testified for the People by stipulation that he was the owner of the Walldren Storage Warehouse Company located at the northeast corner of Division Street and Claremont Avenue in Chicago with the entrance at 2322 West Division Street. He did not give the defendant or any other person permission to enter the premises on June 13, 1966, between 8:00 p. m. and 9:30 p. m., or to break windows or to enter his establishment. He testified that certain wall plaques shown to him by Chicago Police Officer James P. Loftus came from his establishment. James P. Loftus testified that on June 13, 1966, he had been a police officer for the city for ten years and was then assigned to the Sixth Area Task Force. On that evening he, with his squad, was working along Division Street where a riot was taking place. The squad, consisting of four men in civilian clothes in an unmarked vehicle, took up a position in the parking lot of a food store on the southwest corner of Oakley Avenue and Division Streets at about 8:00 p. m. This was in the riot area. Oakley is one block east of Claremont. Both of these streets run in a northerly and southerly direction while Division Street runs in an easterly and westerly direction. Loftus was the driver of the car. He first observed the defendant when the latter kicked in the windows and door of the Walldren store. The officer identified the defendant. Officer Loftus further testified that he kept the defendant in sight and observed him traveling eastbound on the north side of Division Street, that there was a young woman by the name of Sonia Cruz with him, that at the time the defendant kicked in the windows she was standing three feet away from him, that after the defendant kicked in the windows Sonia Cruz reached into the display windows and removed two wall plaques, that she proceeded eastbound on Division Street two or three feet “to the rear of Paulino E. Roldan,” walking up next to the building. At this time the police officers were sixty feet east of the defendant and Cruz and across the street or a total of about 100 feet on a diagonal. Officer Loftus, continuing his testimony, said that as the defendant and Cruz “proceeded eastbound on the north side of Division, when they came to a position opposite to our vehicle we drove the squad across Division up over the curb and in between the two of them, when we came up we forced them to split and we took them into custody.” The witness said that there were no people between him and the defendant or Miss Cruz at the time he watched her take the plaques out of the store window. On cross-examination Officer Loftus estimated that in this riot area there were 400 to 600 people. There were people on the north and south sides of Division Street “and a few of them down Claremont too.” On cross-examination the witness testified further that when he first saw defendant he was kicking out the windows at 2322 West Division, that he kicked one out, went over and kicked another one out and went back and kicked out the plate glass door. To the question, “He was alone, is that correct?” he answered, “No, Sonia Cruz was next to him.” The people in the crowd were in back of the defendant. The witness said that the defendant kicked in two plate glass display windows and the plate glass door. The store runs from Claremont in an easterly direction for half a block toward Oakley. The defendant first kicked in the window to the east then the one to the west and then the door. At the time the defendant kicked in the window to the east, Sonia Cruz was to the right and rear of him; she was “on the periphery or the edge of the crowd at that point, and he came from there and kicked in that window.” The witness said that Sonia Cruz was standing in the crowd cheering and jumping up and down. She did not take the plaques until the defendant kicked in the door. Other people also reached in and took things. The officer further testified the defendant and Cruz “walked east” with Sonia Cruz two or three feet behind the defendant. In answer to the question, “Nobody else walked east?” the witness said, “No, sir.” It was stipulated that the defendant was 27 years of age. No witnesses were introduced in behalf of the defendant. Sonia Cruz was indicted with Paulino E. Roldan. The record does not show that there was a severance or why she was not tried with him. In the oral argument the attorney for the defendant Roldan said that Sonia Cruz failed to appear, forfeited her bond and has not since been located.

The defendant maintains that the People failed to prove the corpus delicti of the crime of burglary, the essential elements of which are entering or remaining in a building without authority with intent of committing a felony or theft. He says that there is no evidence connecting defendant with Sonia Cruz, who reached in and took the two plaques. The defendant further asserts that his guilt was not proved beyond all reasonable doubt. Intent must ordinarily be proved circumstantially, by inferences drawn from conduct appraised in its factual environment. People v. Johnson, 28 Ill2d 441, 443, 192 NE 2d 864. The uncontradicted testimony establishes that the defendant unlawfully kicked in the windows. His act was not purposeless as is indicated by the urging of the crowd who immediately after he broke the windows, proceeded to loot the store. The intent to burglarize and commit the theft is evident from the facts and circumstances.

The undisputed facts demonstrate entry by the physical act of kicking in the windows. The windows would not have given way had not the defendant’s foot penetrated the close of the premises. In People v. Urbana, 18 Ill2d 81, 163 NE2d 511, relied upon by defendant, the perpetrators were engaged in an attempt to enter the building when frightened away. In People v. Stroud, 89 Ill App2d 377, 232 NE2d 464, the court said that the breaking of a window does not necessarily and indispensably imply a design to commit burglary. In People v. Borden, 84 Ill App2d 442, 228 NE2d 248, an attempt to enter a store was unsuccessful. The cases relied upon by the defendant are not applicable to the factual situation presented by the record in the instant case. In People v. Songer, 28 Ill2d 433, 437, 438, 192 NE2d 861, the court held that the breaking of a skylight window and the removal of a wooden grating three feet below, leaving the way clear to climb down into the building alleged to have been broken, are sufficient to constitute an entry into the building within the meaning of the burglary statute. We think that the action of the defendant in kicking in the windows was an unlawful entry into the premises.

It is uncontradicted that defendant kicked in the windows thus enabling Sonia Cruz to steal the plaques. There can be no doubt that defendant’s action in kicking in the windows was done to facilitate the entry of the cheering mob behind him, including Sonia Cruz. The evidence shows beyond a reasonable doubt that the defendant committed the crime of burglary and that he aided and abetted in the perpetration of the crime of burglary. Illinois Rev Stats 1967, § 5-2 (c), c 38, states that a person is legally accountable for the conduct of another when “(c) Either before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense.”

Proof of a common purpose need not be supported by words of agreement but can be drawn from the circumstances surrounding the commission of an act by a group; that the criminal acts were not committed pursuant to a preconceived plan is not a defense if the evidence indicates involvement on the part of the accused in the spontaneous acts of the group. People v. Richardson, 32 Ill2d 472, 476, 207 NE2d 478; People v. Rybka, 16 Ill2d 394,158 NE2d 117; People v. Clark, 30 Ill2d 67, 195 NE2d 157.

At the close of the State’s case, the trial court denied a defense motion that defendant be found not guilty on the grounds that the State failed to prove a prima facie case as to his guilt or that defendant was not proved guilty beyond a reasonable doubt. The defendant then rested and again moved that the trial court find him not guilty for the reason that the State failed to prove his guilt beyond a reasonable doubt. The trial court made the comment, “There is evidence in this record which is not rebutted, . . .” and denied defendant’s motion for a finding of not guilty. Contrary to defendant’s contention, this comment does not indicate that the trial judge was deviating from the well recognized principle that the burden is on the State to prove the defendant guilty beyond a reasonable doubt.

For these reasons the judgment is affirmed.

Judgment affirmed.

McNAMARA and LYONS, JJ., concur.


text:
    City of Chicago, a Municipal Corporation, Appellee, v. Lowell J. Myers, Appellant.
    Gen. No. 52,629. (Abstract of Decision.)
    First District, Second Division.
    October 1, 1968.
   Opinion by JUSTICE McNAMARA. Not to be published in full.


author: MR. PRESIDING JUSTICE DEMPSEY

text:
    In the Matter of the Estate of James Mallas, Deceased. Celia Stolpe, Claimant-Appellant, v. Thomas N. Kazakos, Executor of the Estate of James Mallas, Deceased, Defendant-Appellee.
    Gen. No. 52,365.
    First District, Third Division.
    October 3, 1968.
    Sidley & Austin, of Chicago (Alice M. Bright, George M. McBurney, Arthur F. Staubitz, and Sylvia O. Decker, of counsel), for appellant.

      Arthur S. Gomberg, Samuel Nineberg, and Alexander O. Walter, of Chicago (Samuel Nineberg, of counsel), for appellee.
   MR. PRESIDING JUSTICE DEMPSEY

delivered the opinion of the court.

Celia Stolpe filed a claim for $6,451.10 against the estate of James Mallas for personal and housekeeping services rendered to the decedent and to his wife who preceded him in death. Mrs. Stolpe, a nonrelative, alleged that she performed the services on a daily basis at the request of the decedent or his wife from December 1961 (beginning with the illness of Mrs. Mallas and continuing through her death in September 1963) until March 1964. From March 1964 until December 1964, she claimed that she performed the work about three or four days a week and thereafter on approximately ten occasions until the hospitalization of the decedent in August 1965. No answer to the claim was filed by the estate. After hearing evidence, the trial court entered an order denying the claim. The claimant then moved the court to reverse its order and to enter a judgment for her. The motion was denied and she appealed.

At the hearing, in his opening statement, her attorney informed the court that she did not seek to recover on a direct promise by either of the Mallases but on an implied contract for the value of her services. The claimant presented four witnesses: two friends of the Mallases who had known them over 40 years; a niece of Mrs. Mallas, and a sister of the claimant who also had known the Mallases about 40 years. The witnesses testified that after Mrs. Mallas became ill, they saw Mrs. Stolpe at the Mallas home cleaning house, cooking food, changing linen, assisting Mrs. Mallas (who was helpless and bedridden), bathing her, changing her clothes, shopping for groceries and medicine and taking clothes to launder. Mrs. Stolpe’s sister said that she took her to the Mallas home practically every day, while the others told of seeing her perform these services two to three weekday afternoons, Sunday afternoons and sometimes in the evening. Two of the witnesses also testified that after the death of Mrs. Mallas, they saw Mrs. Stolpe bring food, cook food, change bed linen and clean house for James Mallas. The performance of the latter services was seen a dozen afternoons by one witness who visited the Mallas home once a week, and quite a number of times — perhaps every time — by another who visited two to three evenings a week.

None of the services or expenditures were paid for by the Mallases, except that Mrs. Mallas gave Mrs. Stolpe $25 a week which she received from her husband. The money was used to purchase food. Despite the lack of payment, the Mallases were appreciative of the efforts of Mrs. Stolpe. All of the witnesses testified to conversations in which Mallas and Mrs. Mallas expressed their gratitude or intention to pay the claimant. Two of the witnesses related conversations at which Mrs. Stolpe was present. In one conversation, Mrs. Mallas said that she would “rot in this bed” if it weren’t for Mrs. Stolpe; in two others, Mallas said, “I will repay her” and “I’ll take care of her.” Two of the witnesses related conversations outside of the presence of Mrs. Stolpe where Mrs. Mallas said to her husband, “She must be paid” and “We have to take care of them” [Mrs. Stolpe and her sister] and he responded, “We have to . . .” and “Yes we do.” After one of these conversations, Mrs. Mallas’ niece told Mrs. Stolpe to continue working because she would be paid for it.

There was also testimony of an attempt to repay the claimant by means of a devise in a will. A will was prepared leaving the Mallas home to Mrs. Stolpe and her sister. According to the sister, the will was never exeeuted because Mallas was ill on the day scheduled for the signing, because Mrs. Stolpe could not accompany him to the appointed place on a later day and because thereafter arranging a time to meet the attorney was too much trouble. However, the witness did not correct the attorney who cross-examined her when he incorporated in a question the statement that Mallas refused to sign the will.

Mrs. Stolpe, the only witness presented by the estate, was called as an adverse witness. She testified that Mallas never offered or promised to pay for the food she bought or the services she rendered, and that she had said in a deposition that he never told her or anyone else that he would reimburse her. She also acknowledged that she did not ask him for payment or reimbursement, although she did give him some bills for groceries which were never paid. She testified, however, that she expected to be paid and that she heard Mallas tell one of her witnesses that he would take care of her. She admitted that he never told her this directly except in one conversation at which no one else was present. She stated that he had not asked her to shop, cook or clean house but that Mrs. Mallas had, and that on occasion Mallas would indicate to her that there was no food — that the refrigerator was empty.

After listening to the testimony, the court stated that it had no doubt that the claimant rendered extensive services to the decedent and his wife over a considerable period of time. The court believed that the claimant should be compensated on a moral basis “even beyond what she is requesting” but refused to allow the claim on a legal basis because it believed that its hands were “tied by the law.” The court noted that the lack of an express contract had been admitted and stated that the presumption of an implied contract (to pay for services where there is no relationship between the parties) would not arise because there was “positive testimony by the claimant herself, that there never was, at any time, any . . . agreement to pay, either during the lifetime of his wife, or after her death.”

On the motion to vacate the order denying the claim the court reaffirmed its ruling but did so on the ground that the presumption of an implied contract had been overcome by the claimant’s own testimony that Mallas had not promised or offered to pay or reimburse her and that she had not asked him for payment or told him of her expectation of payment.

We disagree with the court’s decision and with the two reasons upon which it was predicated. First, a claim for services must be based on either an express or implied contract. The claimant did not contend that there was an express contract. The lack of an explicit agreement to pay her did not preclude the existence of an implied contract to pay for those services known to and accepted by the decedent. Her testimony that she had no definite understanding with the decedent did not negate her contention that an agreement was implied by their acts, expressions and conduct. Second, her testimony did not destroy the presumption arising from the acceptance of her services. She was not related to either Mallas or his wife. A contract will be implied in the following situation:

“Where no kin or family relationship exists between the parties, and one accepts and retains the beneficial results of another’s services, which were rendered at his own insistence and request and which he had no reason to suppose were gratuitous, the law will imply liability for such services in such an amount as they are reasonably worth.” Floyd v. Smith’s Estate, 320 Ill App 171, 50 NE2d 254 (1943), cited in In re Estate of McWain, 77 Ill App2d 359, 222 NE2d 576 (1966) and In re Estate of Brumshagen, 27 Ill App2d 14,169 NE2d 112 (1960).

All of the elements of such a contract were proved in the present case. This was recognized in part by the trial court although it incorrectly concluded that the proven facts merely created a moral obligation on the part of the estate.

The estate contends that Mallas did not request a substantial share of the services — that many were requested by his wife for herself and for him. Mallas is liable for these since they were necessary services. In addition, he is liable for the services requested by himself or which he knowingly accepted after his wife’s death. The estate also contends that the services were rendered gratuitously. In support of this, it cites the failure of Mrs. Stolpe’s sister, who rendered services for which the Mallases expressed their gratitude, to file a claim against the estate. Not filing a claim is understandable in view of her testimony that Mrs. Stolpe did “all the work.” The estate further cites in support of this contention the admission of Mrs. Stolpe that Mallas did not tell her or anyone else that he would reimburse or repay her. This admission in itself does not show that her services were given or received gratuitously. She may still have expected payment and Mallas may still have expected to pay.

The claimant established an implied contract for reimbursement of the expenditures she made on the Mallases’ behalf and for compensation for the services rendered to them. The amount of her expenditures and the value of her services were not determined because of the trial court’s decision denying liability. Accordingly, the case will be reversed and remanded with directions to conclude the hearing on the claim and to enter a judgment for its reasonable value.

Reversed and remanded with directions.

SCHWARTZ and SULLIVAN, JJ., concur.


author: MR. JUSTICE SULLIVAN

text:
    Velma Darda, Plaintiff-Appellee, v. Chicago Transit Authority, a Municipal Corporation, Defendant-Appellant.
    Gen. No. 52,359.
    First District, Third Division.
    October 3, 1968.

      George J. Schaller, O. R. Hamlink, Jerome F. Dixon, and Harry I. Parsons, of Chicago, for appellant.
    Cooney and Stenn, of Chicago (Richard E. Neville, of counsel), for appellee.
   MR. JUSTICE SULLIVAN

delivered the opinion of the court.

This is an appeal by the defendant from a judgment in favor of the plaintiff in an action for damages for personal injuries based upon the alleged negligence of the defendant. The jury awarded a verdict of $3,800 whereupon the defendant moved for a judgment notwithstanding the verdict, or alternatively, for a new trial. The motions were denied and judgment was entered on the verdict.

On October 31, 1960, the plaintiff boarded a bus which transported her to the Chicago Transit Authority’s El station at 63rd Street and Loomis Avenue in Chicago. She gave her transfer to the ticket agent at the station and then went up to the platform. The platform was congested with the morning rush-hour commuters. The plaintiff testified that it was raining heavily and had been raining for some time. As a train approached, the plaintiff moved toward it; and, while looking through the windows into the train to see if she could find a seat, she travelled a few yards and fell to the platform. The plaintiff testified that there were “messy looking” and “trampled” leaves on the platform in addition to scattered puddles. When she picked herself up the plaintiff noticed a “slimy” substance adhering to her shoes and she felt something “slick” on her hand. The plaintiff remained on the platform for a very short time and then proceeded to board the train.

The plaintiff offered one witness who testified that she was sitting inside the train when she saw the plaintiff fall and that the platform was wet. Upon arriving at her place of employment, the plaintiff began to feel pain and was treated by her own doctor later that day. She sustained injuries to her left arm and left hip, and she remained in the hospital for five days and was thereafter treated by her family doctor for a period of ten weeks. The present appeal does not present an issue with respect to the existence or extent of the plaintiff’s injuries or resultant damage.

The defendant made no attempt to refute any of the aforementioned testimony. At the close of the plaintiff’s case, the defendant moved for a directed verdict in its favor which was denied. An instruction was given to the jury without objection that the defendant was under a duty of the “highest degree of care.”

The defendant argues that the trial court erred in denying its motion for judgment notwithstanding the verdict because (1) the defendant owed only the duty of ordinary care to this plaintiff, and (2) the plaintiff offered no evidence tending to show that the defendant had either actual knowledge or constructive notice of the allegedly slippery substance on the platform. In short, the defendant argues, the plaintiff’s proof presented no factual question of notice, either actual or constructive, for the jury’s consideration and has thus failed to prove an essential element of her cause of action.

The case of Davis v. South Side El. R Co., 292 Ill 378, 127 NE 66, is controlling. In that case, the plaintiff had disembarked from an elevated train and had reached the first landing on the stairs when she slipped on a banana skin and fell, thereby sustaining injury. The trial court entered judgment for the plaintiff and the Appellate Court affirmed. The Supreme Court reversed and held, firstly, that the court’s instruction on the “highest degree of care” was erroneous and that the defendant owed only ordinary and reasonable care. On pages 380-381, the court approvingly quoted the following language:

“Some of the cases seem to lose sight of the difference between the duty respecting station buildings and that respecting means and modes of conveyance, but the well-reasoned cases recognize the distinction and affirm that a railroad company that exercises ordinary care in constructing and maintaining station buildings and appurtenances in a reasonably safe condition for use is not guilty of negligence. There is really no valid reason why a railroad company should be held to a higher degree of care in maintaining its station buildings than that to which an individual owner of buildings used for ordinary business purposes is held. . . .”

The Davis court went on further to hold that a directed verdict should have been granted for the defendant:

“If it had been shown that the banana skin had been permitted to be upon the stairway for a sufficient time that notice might be implied or actual knowledge were shown, that might have justified a verdict against the company under the rule requiring the exercise of ordinary care, but such actual or implied notice was not shown on this record,” (Page 386.)

The principles announced in the Davis case have been consistently followed in this state. (See: Antibus v. W. T. Grant Co., 297 Ill App 363, 17 NE2d 610; Schmelzel v. Kroger Grocery & Baking Co., 342 Ill App 501, 96 NE2d 885; Wroblewski v. Hillman’s, Inc., 43 Ill App2d 246, 193 NE2d 470; Olinger v. Great Atlantic & Pacific Tea Co., 21 Ill2d 469,173 NE2d 443.)

In light of the aforementioned authority, this court concludes that the defendant was required to exercise only ordinary care to the plaintiff in this case and that the defendant’s liability is dependent upon an offering of some evidence which can allow a jury to infer constructive notice or to find actual knowledge. It is this court’s opinion that the plaintiff has failed to provide the jury with any such evidence.

The record presented to us in the instant case is barren of any testimony as to how long leaves had been on the platform or as to how long this “slimy” condition had been present. The plaintiff’s fall could have been caused by a leaf or by an accumulation of wet leaves which had fallen to the platform within a matter of a few minutes prior to the accident. Indeed, there is no evidence that the plaintiff, in fact, slipped on a wet leaf or a composite of water and leaves. Moreover, there is no evidence tending to show the composition of this substance which adhered to the plaintiff’s shoes and hand after her fall. There was no evidence that the defendant possessed actual knowledge of the alleged hazardous condition. It should be emphasized that we are not here confronted with a case involving the troublesome problem of weighing conflicting evidence since there simply was no evidence adduced at trial which reasonably attempted to show the duration or nature of the foreign condition on the platform.

The plaintiff relies on Burns v. Goldammer, 38 Ill App 2d 83, 186 NE2d 97, in which the Appellate Court affirmed a jury verdict where the issue, as stated by the court, was “whether the gum on the approach to the [bowling] alley had been there for a sufficient length of time to give defendants constructive notice of its presence.” (At page 86.) However, that case is clearly distinguishable from the case at bar. In the cited case, the court, in holding that the defendant’s motion for a directed verdict was properly denied, placed emphasis on the fact that there was evidence that the gum in question was blackened and flattened which could allow a jury to conclude that this gum was present on the approach for a considerable length of time. By contrast, no such evidence was adduced in the instant case.

In the recent decision of Arden v. Chicago Transit Authority, 89 Ill App2d 214, 232 NE2d 501, it was held that the trial court did not err in refusing to grant defendant’s motions for a directed verdict and for judgment notwithstanding the verdict. In that case, the plaintiff testified that during the evening rush hour she slipped and fell on accumulated debris while she was descending the defendant’s stairway. The Appellate Court concluded that there was sufficient evidence from which the jury could conclude that the defendant had notice of the presence of the debris, and thus distinguished the case from Davis v. South Side El. R. Co., supra. Upon an examination of Arden, we find it distinguishable from the Davis case and from the case at bar. The following evidence was presented in Arden all of which was fatally lacking in the instant case. The plaintiff specifically testified that her fall was caused by the debris. There was testimony that the stairway had not been cleaned for almost three hours before the accident and that debris had been known to accumulate on the stairs and platform. In addition, emphasis was placed on the fact that the stairs were poorly lighted and that the plaintiff had used these stairs only as a result of misdirection by the defendant.

The plaintiff contends that the defendant’s failure to object to the instruction that the defendant owed the highest degree of care precluded the trial judge from entering the requested judgment notwithstanding the verdict. It is the plaintiff’s argument that the trial court could not make such a determination based upon a requisite degree of care which was not before the jury. By a motion for judgment notwithstanding the verdict, the same question is presented and the same test is applied as in deciding a motion for a directed verdict at the close of all of the evidence. Pedrick v. Peoria & Eastern R. Co., 37 Ill2d 494, 229 NE2d 504; Arden v. Chicago Transit Authority, 89 Ill App2d 214, 232 NE2d 501. In each instance the trial judge determines whether all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict based on that evidence could ever stand. Pedrick v. Peoria & Eastern R. Co., supra. This inquiry assumes that a determination will be made in light of the correct and applicable law. An instruction, however erroneous, given after all of the evidence has been put before the court is therefore irrelevant to the sole question presented by either motion. A motion for judgment notwithstanding the verdict is and must be decided without consideration by the court of argument to the jury, instructions or the verdict, all of which occur after the completion of the evidence.

In the instant case, it must be concluded that the most favorable reading of the plaintiff’s case does not supply the missing and material element of notice; and for this reason, as a matter of law, a verdict in the plaintiff’s favor cannot stand.

For the foregoing reasons, the judgment is reversed.

Reversed.

DEMPSEY, P. J. and SCHWARTZ, J., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Charles Sanford, Defendant-Appellant.
    Gen. No. 52,047.
    First District, Third Division.
    October 3, 1968.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Theodore A. Gottfried and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Edward Stasukaitis, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE DEMPSEY

delivered the opinion of the court.

The defendant, Charles Sanford, was convicted by a jury of the offenses of murder and arson. He was sentenced to the penitentiary for concurrent terms of not less than fifty nor more than seventy-five years.

He contends that the State committed reversible error in commenting in its closing argument on his failure to produce alibi witnesses and in turning over a police report to his counsel in the presence of the jury. He also contends that the minimum sentence is excessive and should be reduced.

On August 28,1965, Sanford was living with Ludia Bell Graves and her ten-year-old daughter at 4545 S. Wood-lawn Avenue, Chicago. The couple quarreled and Sanford struck Miss Graves in the face. She left her apartment and went to the fourth-floor apartment of Mr. and Mrs. Taylor.

The next afternoon Sanford came looking for her. He inquired at the fourth-floor apartment of John Davenport but was told that she was not there. He then kicked and banged on the Taylors’ door (about six feet away). Miss Graves was in the Taylor apartment, but no one answered the door. She heard Sanford say he would burn everyone up when he came back. About 20 minutes later she again heard his voice in the hallway and heard him say, “Ain’t any need any of you all running because I’m going to burn all of you . . . up.” A fire started in the hall outside of the Taylor apartment.

A resident of the building saw Sanford enter with a gasoline can. She asked where he was going and he answered “to blow up some people.” A maintenance man also saw Sanford enter the building carrying a red can marked “gasoline.” No one saw him spread the gasoline, but Mrs. John Davenport heard him say to her husband that he was going to burn the place down and saw him throw a match and a flame shoot up. He stayed in the building about ten minutes, then left empty-handed, first walking, then running down the street. After he left some boys yelled fire and the maintenance man called the fire department.

The fire killed John Davenport and injured two others, including Mrs. Davenport, who jumped from a fourth-floor window.

Sanford denied setting the fire. He claimed that on August 29th he looked for his “wife” with whom he had quarreled the previous day. He asked for her three times at the Davenport apartment but was unable to locate her. On the last effort, about 1:00 p. m., John Davenport told him that she was with her boyfriend. He then decided to have some fun and spent the remainder of the afternoon at a tavern. When he returned to his apartment, he was told of the fire and was arrested.

During Sanford’s cross-examination the State elicited the information that the owner and a barmaid were present in the tavern. Neither of these prospective witnesses was called by the defense and in his closing argument, the prosecutor said:

“He said he was drinking in the tavern, a man and a woman were in there, and he was in there the day before, he doesn’t bring anybody in from there.”

The defendant contends that this remark was improper because the witnesses were equally accessible to both sides. He cites People v. Smith, 74 Ill App2d 458, 221 NE2d 68 (1966) wherein it was stated:

“It is now well settled that the failure of a defendant to call as witnesses those persons who are aware of facts material to the question of his guilt or innocence creates no presumption of law that, if the witnesses were called, adverse testimony would result, unless ‘it is manifest that it is within the power of the accused to produce such witnesses and that such witnesses are not accessible to the prosecution.’ ”

In the Smith case the implications in the State’s argument were seriously provocative. The case is not comparable to the present one.

The prosecutor did not argue that the defendant failed to call the tavern owner and barmaid as witnesses because their testimony would have been adverse to him. He merely said that they had not been brought in to testify. Further, the witnesses were not equally available to both sides. There is nothing in the record to indicate that the State knew prior to the defendant’s testimony that he would claim an alibi or whom he would name as witnesses to support his story that he was in another place at the time of the crime. The defendant knew who they were and could have had them on hand, the State could not. After the witnesses were named, the trial would have had to be recessed, perhaps to some other day, for the State to have subpoenaed them.

The applicable rule is the one stated by this court in People v. Gray, 52 Ill App2d 177, 201 NE2d 756 (1964):

“Where the defendant injects into the case his activities with potential witnesses during a particular period of time ostensibly for the purpose of establishing an alibi for the time of the commission of the crime charged, his failure to produce such witnesses is a proper subject of comment on the part of the State.”

See also People v. Swift, 319 Ill 359, 150 NE 263 (1925) ; People v. Gray, 57 Ill App2d 221, 206 NE2d 821 (1965); People v. Lenihan, 14 Ill App2d 490, 144 NE2d 803 (1957). The prosecutor’s comment on the failure to produce the alibi witnesses was innocuous.

The defendant next contends that the State committed reversible error in turning over a police report to his counsel in the presence of the jury. He claims that he had to use the report or appear to be hiding something from the jury.

The defendant fails to note that his counsel asked to see the report. During the cross-examination of a police officer, his counsel asked if the officer had made a report of his investigation. When the officer answered in the affirmative, the attorney asked if he could see it. The prosecutor said he could and gave him the report. As he did, the prosecutor described his action for the purpose of the record.

Outside of the prosecutor’s designation at the time of transfer, there was no reference by the State to the police report during the trial. The State did not refer to it in examining or cross-examining the witness and did not mention it in its closing argument. Thus, under the circumstances of this case, the defendant suffered no prejudice from receiving the police report in the jury’s presence. See People v. Bickham, 91 Ill App2d 465, 235 NE2d 400 (1968).

The defendant’s final contention is that the minimum sentence of fifty years is excessive. He contends that a lower minimum sentence would be a greater inducement toward rehabilitation and toward the exercise of the parole board’s discretion.

In People v. Valentine, 60 Ill App2d 339, 208 NE2d 595 (1965), this court was asked to reduce the life imprisonment sentence of a leading participant in a particularly brutal rape of an eleven-year-old girl. In that case we said:

“We believe that the power to reduce sentences should be used with caution and that a sentence imposed by the trial judge, who sees the defendant and is in a far better position to appraise him and to evaluate the likelihood of his rehabilitation than a reviewing court, should not be reduced unless there are substantial reasons for doing so. The penalty decided upon by the trial court, if within statutory limits, should not be changed merely because of judicial clemency or just because the reviewing court would have imposed a different one if it had been in the trial court’s position.”

Likewise, in People v. Caldwell, 79 Ill App2d 273, 224 NE2d 634 (1967), this court declined to reduce a minimum sentence of fifty years (maximum of one hundred years) of a defendant who killed a woman in cold blood. We held that the sentence imposed was not improper in view of the “nature of the crime and the record before us.” Moreover, in Caldwell we noted that all minimum sentences beyond twenty years are reduced to twenty for the purpose of parole eligibility. Ill Rev Stats 1967, c 38, § 123-2 (3). Assuming maximum credit for good behavior, a defendant who receives a minimum sentence of twenty years or more becomes eligible for parole in eleven years and three months.

This case, like Valentine and Caldwell, is inappropriate for reduction of the sentence. The sentence imposed reflects the serious nature of the crimes of murder and arson and the defendant’s criminal record. After several convictions for disorderly conduct and petty larceny he was convicted of burglary and sentenced for three to ten years, of rape and sentenced for five years, and of battery and sentenced for one year. He testified that he was out of prison only forty-six days when he committed the crime of arson which resulted in death and injury to innocent persons. In view of these considerations, the fifty-year minimum sentence was not excessive.

The convictions are affirmed.

Affirmed.

SCHWARTZ and SULLIVAN, JJ., concur.


author: CULBERTSON, J.

text:
    Mario Lombardo, Plaintiff-Appellant, v. Board of Education of School District No. 27, Cook County, Illinois, Defendant-Appellee.
    Gen. No. 51,916.
    First District.
    October 7, 1968.

      Ligtenberg, Goebel and De Jong, of Chicago (John Ligtenberg, Andrew J. Leahy, and Mary Lee Leahy, of counsel), for appellant.
    Norman, Engelhardt, Franke & Lauritzen, of Chicago (Ralph Miller and Allyn J. Franke, of counsel), for appellee.
   CULBERTSON, J.

Plaintiff, Mario Lombardo, was by resolution of the Board of Education of School District Number 27, Cook County, Illinois, dismissed as a teacher therein. At the time he was engaged in contractual continued service under the Teacher Tenure Law. Charges as set forth in the resolution for dismissal were made against plaintiff, and said charges were considered by the Board to be not remediable. The resolution for dismissal is as follows:

RESOLVED that Mario Lombardo is hereby dismissed as a teacher in this District, the effective date of such dismissal to be immediately before the close of the current school term, that is, June 10, 1966, and that such dismissal is based upon the following charges, causes and reasons:
CHARGES
I. He has demonstrated continued emotional instability both in and out of his classroom, rendering him unsuitable to continue as a teacher in this District.
H. By his activities in his classroom he has prejudiced the best interests of the School District.
III. He has demonstrated a lack of fitness to continue as a teacher in any school in this District.
IV. He has been guilty of unprofessional conduct.
V. He has been guilty of immoral conduct in the school building.
VI. The best interests of the school require his dismissal.
RESOLVED FURTHER that in the opinion of this Board of Education the foregoing charges are on account of causes which are not considered remediable.

Plaintiff was furnished a Bill of Particulars and a Supplemental Bill of Particulars.

In response to the charges set forth in the resolution for dismissal, plaintiff demanded a public hearing, as was his right so to do. A public hearing was had resulting in plaintiff’s dismissal by final Board decision, which is as follows:

RESOLUTION

RESOLVED that the resolution of the Board of Education of School District No. 27, Cook County, Illinois, to dismiss Mario Lombardo as a teacher in this District, the effective date of such dismissal to be immediately before the close of the current school term, that is, June 10, 1966, be and hereby is confirmed, and that such dismissal be and hereby is approved, pursuant to the following decision of this Board rendered this 23rd day of May, 1966:

DECISION

I. THE CHARGES. It is the decision of this Board that the evidence adduced at the hearing commenced on April 19,1966, and concluded on April 20,1966, sufficiently supports the charges (I through VI inclusive) previously served upon Mario Lombardo. In the opinion of the Board the testimony of Glen L. Estle, Superintendent, coupled with the letter of October 19, 1965, identified at the hearing as Board Exhibit 2, and buttressed by the testimony of Steven Georgas (a witness for the teacher), demonstrate to this Board that Mario Lombardo lacks sufficient emotional stability both in and out of his classroom to continue as a teacher in this District. It is the further decision of this Board that the foregoing evidence, examined in the light of the letter of May 11, 1965, directed to Mario Lombardo by Glen L. Estle, offered and accepted in evidence as Teacher’s Exhibit 2, demonstrate that such emotional instability is not a remediable condition.

The Board has heard, weighed and carefully considered the testimony of four pupils, viz., Barbara Kolb, Frank Sanders, Kaye Brown and JoAnne Chavanne. The Board had ample opportunity to observe the bearing and demeanor of those witnesses both under direct and cross-examination. In the opinion of the Board they were truthful, and their testimony persuasive.

The Board further had ample opportunity to observe the bearing and demeanor of Mario Lombardo as he testified. The Board is not persuaded by his testimony. The Board likewise had ample opportunity to consider the testimony of Bruce Sutter and Nancy Kampf, students in the school. It is the opinion of the Board that the testimony of these students, though truthful, does not refute or rebut the testimony of Barbara Kolb, Frank Sanders, Kaye Brown, and JoAnne Chavanne.

The testimony of Elaine Heidelmeier, secretary to Mr. Estle, was not rebutted. It is the opinion of the Board that Mario Lombardo’s emotional state, as urged by his own counsel in closing arguments, does not excuse his conduct as described by Elaine Heidelmeier.
It is the decision of the Board that the evidence described above amply supports the charges.

At the public hearing plaintiff was represented by counsel, as was the Board of Education. The record discloses a full, orderly hearing was had, with full opportunity to all parties to present their evidence. From the final Board decision, hereinbefore set forth, the plaintiff sought relief by Administrative Review, and the relief was denied him by a final judgment order of the Circuit Court of Cook County, Illinois. This appeal follows, wherein plaintiff asks that we reverse the Board decision.

We now give consideration to the evidence produced on the hearing. The witness, Barbara Kolb, testified in February, 1965, she was in plaintiff’s band class and when he taught he made her sit between his legs and put his arms around her, and put his hands on her chest. She further testified he touched her with the palms of his hands six or seven times. She thought he did it accidentally and when she tried to push his hands away, he replaced them. She further testified in February, 1965, he put his elbow in her lap and his hand on her chest. In September, of 1964, the witness testified plaintiff kissed her on the cheek and would stick his tongue in her ear. She further testified plaintiff kissed her on the face and cheek a lot. She also testified she had witnessed plaintiff touch or kiss Kay Brown when Kay Brown was in the seventh grade. The witness Kay Brown testified she was fourteen years of age, and in the eighth grade at the Grove School, where she had gone for three years; that she understood what an oath meant; and that she knew Mr. Lombardo; that he was her band and music teacher. She testified, among other things, that he touched her physically; he pushed her hair back and whispered in her ear; that he kissed her on her ear about four or five times in the seventh grade; and once he put his hands in her lap during the summer when she was in the sixth grade. This witness stated she left the band because of what he had been doing and that she told her parents about it and they said it was all right for her to leave the band. This witness further testified that she observed plaintiff Lombardo kiss a pupil by the name of JoAnne Chavanne, on the ear once or twice during the seventh grade. This witness testified that in her opinion these occurrences could not have been accidents. A witness, John Frank Sanders, testified on the hearing, and among other things, stated that he was a pupil in the eighth grade at the Grove School, that he was fourteen years of age and understood what it meant to take an oath. This witness had been under Mr. Lombardo as a pupil, and that Barbara Kolb was in the class at the same time. This witness testified that in the fall of the seventh grade, 1964, he noticed Mr. Lombardo was hugging a lot of the girls, particularly Kay Brown, and that he also observed Mr. Lombardo hugging Barbara Kolb, Linda Palmer, and JoAnne Chavanne. This witness also corroborated the testimony of Barbara Kolb as to Mr. Lombardo’s conduct toward Barbara Kolb in placing his elbow in her lap between her legs, and having his hand on her breast. The evidence discloses that this witness had had some trouble with Mr. Lombardo as his teacher and that, plaintiff contends, caused him to come forward and testify in this case in the manner in which the record reflects. There is also present in the record the testimony of one Elaine Heidelmeier, who is secretary to Mr. Estle, Superintendent of the School, and who is also secretary to the Board of Education. Miss Heidelmeier’s testimony principally has to do with an instance when she contends Mr. Lombardo called her and asked her to destroy a letter which was in Mr. Estle’s possession at that time, and the record discloses she declined so to do.

Mr. Glen Estle, who was superintendent of the school at the time these occurrences are alleged to have occurred, gave his testimony and among other things testified that, the first knowledge he had of the incidents which have been related in the evidence having occurred, came from a call he received from a Board member. Acting on that information this witness testified he called Mr. Lombardo into his office and had a discussion with him concerning the charges. Mr. Estle testified when they went into a discussion about this matter, Mr. Lombardo became very emotional and went around the office crying and screaming, and he told Mr. Estle he was going to run off and he, Mr. Estle, should call his wife and tell her he was not going to come back again. Mr. Estle testified he continued to press Mr. Lombardo with regard to what he had done and that Mr. Lombardo made the statement that if he had done it, it was an accident. Mr. Estle testified Mr. Lombardo became emotional again and said he was going to write a resignation. A resignation was written and signed by Mr. Lombardo in which he wrote to the effect that he would resign at the end of the year, but this resignation was subsequently recalled and was never acted upon by the Board of Education.

Plaintiff, in answer to the testimony given against him by the three girls and the witness Sanders, and the other witnesses who gave their testimony, testified in his own behalf that he had touched no students improperly. Plaintiff also presented the testimony of two witnesses who said they did not see anything that occurred in the school room. There was also other evidence presented that concerned Mr. Lombardo having trouble with some other pupils who were later removed from his class and transferred to another class.

It is the contention of the plaintiff on this appeal that the evidence to sustain the decision of the Board must be strong and convincing, akin to that required in criminal cases. We do not know of any Illinois case supporting this contention, nor has any case so holding been brought to our attention. We decline the suggestion to so hold.

The record in this case clearly demonstrates the Board adhered rigidly to the spirit and letter of the Teacher Tenure Act, and the teacher’s hearing was a fair one (Anderson v. Board of Education of School Dist. No. 91, 390 Ill 412, 434, 61 NE2d 562). The tenure provisions of the School Code are not intended to preclude dismissal where the teacher’s conduct is detrimental to the operation of the school (Pickering v. Board of Education of Tp. High School Dist. 205, 36 Ill2d 568, 577, 225 NE 2d 1).

The record discloses the hearing was conducted strictly in accordance with the provisions of the Teacher Tenure Act, which safeguards the rights of both Board and Teacher, and carefully delimits the nature of dismissal proceedings (Teacher Tenure Act, Chapter 122, Section 24-12, Illinois Revised Statutes). We are not at liberty to interfere with the discretionary authority vested in the School Board absent arbitrary or capricious action (Yuen v. Board of Education of School Dist. No. U-46, 77 Ill App2d 353, 357, 222 NE2d 570).

We have carefully considered all the contentions advanced by plaintiff and it is our considered judgment that the action of the Board and the determination of the Circuit Court of Cook County on review are abundantly supported by the evidence and the law, and are correct and in nowise arbitrary or capricious. Said judgment is accordingly affirmed.

Judgment affirmed.

ALLOY, P. J. and STOUDER, J., concur.