author: MR. JUSTICE DAVIS

text:
    Cloann Garrison, Plaintiff, Counter-Defendant-Appellant, v. David Edward Garrison, Defendant, Counter-Plaintiff-Appellee.
    Gen. No. 68-72.
    Second District.
    March 20, 1969.
    Vincent F. Lucchese, of Chicago, and John Knight, of Oak Park, for appellant.
    Carbary, Carbary and Chapski, of Elgin, for appellee.
   MR. JUSTICE DAVIS

delivered the opinion of the court.

The sole issue before the court on this appeal is whether the Circuit Court of Kane County had jurisdiction to enter the decree for divorce.

The plaintiff filed suit for separate maintenance from her husband. He answered and counterclaimed for divorce on the grounds of adultery. After extended hearings, the trial court denied the plaintiff’s claim for separate maintenance and granted the defendant a divorce on his counterclaim. The plaintiff then contended that the trial court did not have jurisdiction to enter a decree in that neither the plaintiff nor the defendant was a resident of Illinois. The trial court found that the defendant was and always had been a resident of Illinois. The plaintiff appealed.

In her suit for separate maintenance, the plaintiff alleged that both she and her husband were residents of Kane county. Her complaint further stated that because of her health, she had been spending portions of the winter months in Florida, for some years; that the parties maintained two homes — one in Florida and one in Kane County.

Regardless of the place of the plaintiff’s residence, her separate maintenance action was properly filed in Kane County, if the defendant resided there. (Ill Rev Stats 1967, c 68, par 22.)

The defendant’s answer and counterclaim for divorce admitted that both parties were residents of Kane County. Section 2 of the Divorce Act (Ill Rev Stats 1967, c 40, par 3) provides that to be entitled to a divorce the party obtaining it must have resided within the State one year prior to filing his or her complaint; or that either the plaintiff or the defendant must have resided within the State for six months if the offense complained of was committed within the State. Section 5 of the Act (Ill Rev Stats 1967, c 40, par 6) provides that the proceedings may be had in any county in which either the plaintiff or the defendant resides.

A substantial portion of the plaintiff’s brief and argument is devoted to the contention that the plaintiff was not a resident of Kane County, and that, therefore, the court lacked jurisdiction to enter a decree for divorce. However, the trial court found that she committed adultery in Kane County, and no appeal has been taken from this finding. Under the provisions of the above statutes, the plaintiff could properly invoke the jurisdiction of the court in her separate maintenance suit without being a resident of Kane County, if her husband resided there, and even if he had only resided there for the last six months. Under such circumstances, the court had jurisdiction to enter a decree for divorce.

By virtue of the jurisdiction issue which the plaintiff has raised, we will direct our attention only to the question of the place of the defendant’s residence.

The parties hereto were married in 1953, at Elgin, Kane County, and lived in Illinois until 1957. In 1957, plaintiff became ill — her legs were swollen, her arms felt numb, and she ran a temperature. They had just moved into a new home which they had built in Kane County. The plaintiff’s physician advised that she go to a warmer climate — either Arizona or Florida — to see if this would help her condition.

The plaintiff then went to Florida in December of 1957, and returned to Kane County in April of 1958, after the weather had improved locally. Thereafter, the plaintiff went to Florida every fall, stayed throughout the winter, and returned in the spring. The parties hereto built a home in Florida in 1961.

During all of this time, the defendant maintained a home in Kane County. After they sold the house which they had built in 1957, they lived with the defendant’s mother; then rented an apartment; a house; and finally, the defendant built a new home in 1965. All of these places of residence were in Kane County: all were lived in and maintained by the defendant. He testified that he visited his wife about two or three times a month during her stays in Florida.

At the trial, the defendant testified that he had been employed by an Elgin plumbing and heating supply cornpany for approximately 12 years; that there were 24 employees under his supervision, and that he had been president of the company since 1961.

In 1963 or 1964, there apparently had been some thought by the defendant of making Florida his residence. He testified that since that time, however, he had given up such plan; that his wife and children returned each summer to live with him; that the home which was built in 1965 was large enough for his entire family; and that he tried to get them to live permanently with him there.

The word “residence” may have a variety of meanings depending upon the context in which it is used. Stein v. County Board of School Trustees of Du Page County, 85 Ill App2d 251, 255, 229 NE2d 165 (1967), affd 40 Ill2d 477, 240 NE2d 668 (1968). As used in the Divorce Act, it does not mean the same as “domicile.” Berlingieri v. Berlingieri, 372 Ill 60, 61, 62, 22 NE2d 675 (1939); Way v. Way, 64 Ill 406, 412 (1872).

As used in the Divorce Act, “residence” thus denotes “permanent abode.” It is the place one considers as “home.” Of paramount importance in determining whether a given place is or is not one’s residence is the intent of that person to live there as his permanent home. Hughes v. Illinois Public Aid Commission, 2 Ill2d 374, 380, 118 NE2d 14 (1954); Stein v. County Board of School Trustees of Du Page County, supra, 256, 257; Blair v. Blair, 341 Ill App 93, 102, 93 NE2d 95 (1950).

The defendant — not only by his testimony as to his intent and what he considered his permanent home, but also by his acts and conduct throughout the years— evidenced an intent that Kane County was his residence. It was there that he filled the office of president of an apparently prosperous company; maintained a “home”; and in 1965 built a new home, which was ample for his entire family.

The fact that the parties also owned a house in Florida ■ — a place where the plaintiff lived part of the year for health reasons — could not deprive the defendant of his residence in Illinois. The only time that the defendant ever considered living in Florida was either 1963 or 1964. The construction of the new home in Kane County in 1965, clearly indicated that the defendant then intended that Kane County would remain his place of residence. The length of time, as computed from that date, would be more than adequate to meet the residency requirements of the Divorce Act.

We appreciate that the children of the parties went to school in Florida, which seems only reasonable in that they were under the care of their mother, who was in Florida. The defendant, in the early ’60’s, also signed a Declaration of Domicile, indicating that Florida was his place of domicile. He stated that he did this to save taxes in the State of Florida. The parties also belonged to certain social organizations in Florida, and the defendant made numerous visits to his wife and family there. The trial court properly considered these facts, along with other facts relative to the location of the defendant’s place of business, the nature of his business position, the length and continuity of his various places of residence within Kane County, as well as his construction of a new home there in 1965.

Under the record before us, we believe that the finding of the trial court relative to the defendant’s residence was amply supported by the evidence. Therefore, the judgment of the trial court should be affirmed.

Judgment affirmed.

ABRAHAMSON, P. J. and SEIDENFELD, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE MORAN

license: Public Domain

text:
    Albert F. Hamas, Plaintiff-Appellee, v. Robert Payne, Defendant, and Harvey G. Hill, Defendant-Appellant.
    Gen. No. 68-94.
    Second District.
    March 20, 1969.
    Rehearing denied April 17,1969.

      Dixon, Devine, Ray and Morin, of Dixon, for appellant.
    Peter F. Ferracuti, of Ottawa, for appellee.
   PRESIDING JUSTICE MORAN

delivered the opinion of the court.

Harvey G. Hill, codefendant, appeals from a judgment for damages against him and also from an order granting the plaintiff, Albert F. Hamas, a new trial on the issue of damages only. The defendant appeals from the latter part without leave of court.

A two-count complaint was filed, one count charging the codefendant, Robert Payne, with negligence, and the other count charging the defendant with wilful and wanton misconduct. The jury found Payne not guilty but found the defendant guilty and assessed damages in the sum of $8,000.

The defendant on appeal claims (1) that as a matter of law he was not guilty of wilful and wanton misconduct; (2) that as a matter of law the plaintiff was guilty of contributory wilful and wanton misconduct; (3) that the trial court erred in granting a new trial as to damages only; and, (4) that the trial court erred in refusing one of defendant’s instructions.

It seems that in Lee County there is a blacktop road known as Walton Spur which runs eastward from Route 26 and then curves to the south into the Village of Walton, Illinois. At the beginning and end of the curve there are two gravel roads that extend both northward and eastward, respectively. Where these two extended roads meet, an intersection is created and this is the place where the collision involved herein occurred. The three described roads form the sides of a grassy triangle.

It is necessary to review portions of the voluminous and contested testimony. Payne testified that he was driving his car west towards the intersection on the gravel road with his wife and child; that the accident occurred at 8:30 p. m., about dusk; that he had his lights on and the road was dry; that he intended to turn left to the south; that at a point about two hundred feet back from the intersection he had put on his left turn signal; that when he got to the intersection his visibility was clear but he did not see any automobiles so he turned left; that after he had completely negotiated the turn, he was hit. He denied that his vehicle was struck in the intersection, and he stated that as he approached the intersection he was traveling at 30 m. p. h., although he had been going between 35 and 50 m. p. h. prior to that time.

A state police officer who investigated the accident arrived at the scene forty to forty-five minutes after receiving the call. He testified that he found the Payne vehicle on the grassy shoulder to the east of the north-south gravel road and to the south of the intersection; that the defendant’s vehicle was driven into the passenger side of the Payne vehicle and was perpendicular to it and that the vehicles rested over forty feet south of the intersection at a fenceline which ran along, but set back from, the southeast corner of the intersection.

The officer further testified that he talked with Payne and the defendant the evening following the accident; that Payne told him that he was going to make a left turn to the south and he did not see the defendant’s vehicle coming from the opposite direction, and he said, “I suppose it was all my fault.” The defendant told the officer that he was on Walton Spur coming from Route 26, going in an easterly direction and it was his original intention to go to Walton which would be around the curve to the south; however, he got confused and went straight ahead on the gravel road. Both denied the statement allegedly made to the officer.

A disinterested witness, Drew, was a passenger in a vehicle south of the intersection and saw the accident happen. He testified that it occurred a little bit south of the intersection; that at the time of the impact the Payne vehicle was coming towards him, that it had completed its turn; that he was approximately a sixteenth of a mile from the accident; that he saw the other vehicle hit the Payne vehicle in the side; that he could see the Payne vehicle’s headlights just before the accident and they were directed towards him; that the Payne vehicle had negotiated the turn and was heading south at the time of the accident and that the driver of his vehicle was from Ohio and is presently in the service, and, therefore, not able to be pesent.

Plaintiff testified that on the date in question he worked at the Dixon State School as a maintenance repairman in charge of all the lighting, changing lights, fixtures and related matters; that he stopped for a drink after work and then went on home; that shortly thereafter the defendant arrived and asked him if he wanted to take a ride; that they went to a tavern in Harmon, Illinois, where he had one drink and then to another tavern where he had another drink; that the defendant had a small beer at one of the taverns; that from Harmon they proceeded to Route 26 and across 26 onto the Walton Spur; that the last that he recalled was a point on the Walton Spur where it began to make its curve south towards Walton; that the defendant was going 45 to 50 m. p. h. at this time; that he remembered the slamming brakes; that he went through the windshield and that he never saw the Payne vehicle.

The defendant testified that on the date of the accident he got off work at about three o’clock; that he arrived home at four, read a little bit, watched television and ate supper; that at seven o’clock or a little before, he left his home and went to the plaintiff’s home where he stayed approximately ten to fifteen minutes; that they both left for Harmon, Illinois, where they arrived at 7:30 p. m.; that he had nothing to drink at the first tavern they visited in Harmon but at the next tavern in Harmon he ordered a beer and talked to a nieghbor; that they left this tavern at eight o’clock and proceeded towards Route 26 when they decided to go to Amboy by proceeding east on the Walton Spur; that he had his lights on; that he approached the Walton Spur curve going 60 to 65 m. p. h. and slowed down as he proceeded east going onto the gravel road; that he was in the eastbound lane and never left that lane of traffic up to the moment of impact; that he estimated his speed as he entered the gravel road at 35 to 45 m. p. h.; that the Payne vehicle was about one-car length to the east of the intersection with its lights on; that he did not observe any turn signals on the vehicle; that he had his eyes on the Payne vehicle up until the moment of impact; that the vehicle started to make a left turn and he hit it; that at the time he hit the vehicle he was at about a 45-degree angle to it and that the Payne vehicle was in the southeast quadrant of the intersection at the time of impact.

With regard to injuries it appears that the plaintiff suffered deep facial lacerations of the forehead, face and nose requiring 100 sutures, a fractured dislocation of the right ankle and a cerebral concussion, along with much loss of blood. The nose was almost divided. The right ankle was in a cast for over three months and the plaintiff was not allowed to bear weight on it. The treating physician testified to a destruction of the normal relationship of the soft tissues in the ankle as well as past and future pain in the ankle, foot and face. The plaintiff received physiotherapy three times a week over a six-month period from November 23, 1966, to May 10, 1967, consisting of ultrasound, heat, whirlpool and exercises. He frequently complained of pain and his x rays demonstrated arthritic changes in the ankle and foot which were a result of the injury. In the doctor’s opinion the pain will be permanent and movement will aggravate the pain. There is some limitation in his ability to work. The scarring of the face is permanent, although plastic surgery may remove some of the scarring. There is a limitation of motion of the ankle. The doctor discharged him to return to work in July of 1967. Prior to the accident his general health was good and he had been a roller skating teacher in addition to being employed at the Dixon State School as an electrician. He was 48 years old, married with a family of three children and earned $4.65 per hour. Plaintiff’s exhibits and out-of-pocket medical expenses totaled $1,066.65. The personnel director of the Dixon State School testified that the plaintiff lost $3,083 in wages during 1966 from the time of the accident to the end of the year. Up until July 24, 1967, he would have earned approximately $5,252. Lost wages thus totaled $8,335.

The defendant argues the plaintiff had the same opportunity to see everything that the defendant saw and at no time did he see the Payne vehicle; also, that if the defendant were traveling at an excessive speed, the plaintiff had a duty to so inform the defendant and he did not. The jury heard and considered not only this evidence but all of the foregoing evidence on the issues of whether or not the plaintiff was free from contributory wilful and wanton misconduct and whether or not defendant was guilty of wilful and wanton misconduct. The only additional basis presented in the record from which con-tributary wilful and wanton misconduct could be found against the plaintiff was his participation in the drinking by the defendant and then voluntarily getting into the car driven by him. The question of whether plaintiff’s voluntary participation in the drinking and his voluntary subjection of himself to the peril of riding with a person who had one drink constituted contributory wilful and wanton misconduct was a question of fact for the jury to decide. Such evidentiary matters are traditionally within the province of the jury. The evidence, viewed in its aspect most favorable to the plaintiff, does not unquestionably favor the defendant so that the verdict based on that evidence must be reversed as a matter of law. Ryg v. Brue, 91 Ill App2d 229, 233, 233 NE2d 761 (1968).

Defendant complains that the court erroneously denied his post-trial motion for judgment notwithstanding the verdict. This does not call upon us to substitute our judgment for that of the jury. It only calls upon us to determine whether all of the evidence, when viewed in its aspect most favorable to the plaintiff, so overwhelmingly favored the defendant that no contrary verdict based thereon could ever stand. Pedrick v. Peoria & Eastern R. Co., 37 Ill2d 494, 510, 229 NE2d 504 (1967); Neubauer v. Coca Cola Bottling Co. of Chicago, 96 Ill App 2d 18, 26, 238 NE2d 437 (1968); Johanneson v. Ring, 82 Ill App2d 340, 345-346, 226 NE2d 291 (1967). We cannot say that such is the case.

Likewise, the trial court’s denial of the defendant’s post-trial motion for a new trial generally must also be affirmed. A jury’s resolution of disputed factual questions may not be set aside because the judge believes a different conclusion more reasonable. Guthrie v. Van Hyfte, 36 Ill2d 252, 260, 222 NE2d 492 (1966). This court may substitute its judgment for that of the jury only where the jury’s verdict is palpably erroneous and wholly unwarranted from the manifest weight of the evidence. Tihay v. Aurora City Lines, 79 Ill App2d 107, 113, 223 NE2d 771 (1967). Although the evidence is conflicting there is ample basis for the jury to find on behalf of the plaintiff against his driver and to find that Payne was struck in the side after he had executed the turn. Such a finding is supported by the testimony of the independent witness and the position of the vehicles without any reliance upon the testimony of the parties.

The defendant’s instruction No. 10 (IPI 72.05) was given. This instruction paraphrased the Illinois “Guest Statute” (Ill Rev Stats 1965, c 95%, §9-201). Notes on use for this particular instruction, IPI, page 265, state that either IPI instruction 72.01 or 72.02, which define “guest,” should be given with IPI instruction 72.05. The defendant offered IPI instruction 72.01 and upon objection, the court refused the instruction. The defendant claims such refusal was error. It would have been error had the question of the plaintiff’s status in the automobile been in issue; however, it was never in issue. See Notes on Use, IPI 258, as to when IPI instruction 72.01 should be used.

Defendant appeals directly to this court, from the order of the trial court granting the plaintiff a new trial on damages only, upon a Notice of Appeal filed with the trial court. Leave was not granted nor was application made under Supreme Court Rule 306(a) which provides in part:

“An appeal may be taken from an order of the circuit court granting a new trial only on the allowance by the Appellate Court of a petition for leave to appeal . . . .”

The Supreme Court long ago held that it was the intention of this provision that no appeal should be taken from an order granting a new trial except after first obtaining leave of the Appellate Court. Baumgardner v. Boyer, 384 Ill 584, 591, 52 NE2d 247 (1943); Matyskiel v. Bernat, 85 Ill App2d 175, 179, 228 NE2d 746 (1967).

Illinois reviewing courts have dismissed attempted direct appeals from orders vacating judgments and granting new trials and have held that provisions of the Leave-to-Appeal Statute had to be followed. Where a rule or statute expressly outlines the procedure to be taken on appeal, said procedure must be followed exactly. In this case, defendant failed to follow the prescribed procedures with regard to that portion of the trial judge’s order granting a new trial on the issue of damages only and, therefore, that assignment of error should not be considered by this court. Rodriguez v. Chicago Transit Authority, 58 Ill App2d 150, 162-163, 206 NE2d 828 (1965).

Notwithstanding this fatal defect we will determine whether or not the trial court erred in granting the plaintiff a new trial as to damages only. The medical and hospital bills total $1,066.55; lost wages total $8,335. The record clearly establishes an arthritic injury of the ankle caused by the accident which injury is permanent and which will probably cause pain. The treating physician had no estimate of the future cost of medical treatment nor the cost of plastic surgery to correct the obvious scarring on the face but he estimated that the scarring and pain were permanent.

When it is clear that the verdict of the jury is a result of a compromise of the liability, then a new trial in general must be ordered by the trial court. Paul Harris Furniture Co. v. Morse, 10 Ill2d 28, 46, 139 NE2d 275 (1956). On the other hand, if the liability is clear and the jury improperly assesses the damages or- disregarded important elements of damages, the court may then, at its discretion, order a new trial on the issue of damages only. King v. City of Chicago, 53 Ill App2d 484, 486-487, 202 NE2d 839 (1964), McManus v. Feist, 76 Ill App2d 99, 103-104, 221 NE2d 418 (1966).

The trial court is granted discretion in determining whether or not it should grant a new trial and its determination, particularly in granting a new trial, will not be disturbed unless it is affirmatively shown that there is a clear abuse of such discretion. Greater latitude is allowed a trial court in granting a new trial than in denying one. Lombard Park Dist. v. Chicago Title & Trust Co., 103 Ill App2d 1, 242 NE2d 440, 445-446 (1968). No abuse of discretion is reflected by the actions of the trial court in this case.

The judgment of the trial court is affirmed and the cause is remanded for further proceeding.

Affirmed and remanded.

DAVIS and ABRAHAMSON, JJ., concur.


text:
    Greenlee Bros. & Co., a Corporation, and Whirlpool Corporation, Inc., a Corporation, Plaintiffs-Appellants, v. Rockford Chair & Furniture Company, a Corporation, Defendant-Appellee.
    Gen. No. 68-96.
    Second District.
    March 20, 1969.

      Gilbert, Powers and Graves, of Rockford, for appellants.
    Williams, McCarthy, Kinley and Rudy, of Rockford, for appellee.
   PRESIDING JUSTICE MORAN

delivered the opinion of the court.

The defendant is the owner of several warehouse buildings in the City of Rockford, Illinois. What the parties call the “North” building is a heated warehouse and is not involved in this litigation. The “South” building, which is the building involved herein, was not heated and defendant rented storage space, at this location, to a number of persons. No partitions separated any of the storage areas in this building and all of the tenants had access to the entire building. The defendant employed two men to operate the boilers in the “North” building and they had no duties in connection with the building here in question other than those to be discussed.

The “South” building was equipped with a fire sprinkler system; in this instance a dry system as opposed to a wet system. Because of the lack of heat in the building a dry system, where no water stands in the pipes, was used. The pipes are filled with air and when heat opens the sprinkler head the air comes out permitting the subsequent flow of water. The sprinkler heads themselves were controlled by three risers located in the “South” building.

In addition to the sprinkler system the defendant employed American District Telegraph Company (American) to keep a fire check on the sprinkler system itself. Any reduction in air pressure in the system would activate a signal maintained by American and they, in turn, would notify the defendant.

On March 26, 1960, American received a low pressure signal from the “South” building and notified the defendant. The next morning, March 27, they received another low pressure signal and again notified the defendant. The defendant corrected a leak causing the low pressure condition on each occasion. Later on the same day, American again received a low pressure signal and notified the defendant, who instructed one of his employees to shut down the riser system in the “South” building. Subsequently, service was restored to two of the risers, but one remained shut down. The defendant then called a repairman and when he was unable to reach him, informed his own employee to contact someone to make repairs on the following day, since March 27 was a Sunday. About 10:45 in the evening the Rockford Fire Department was advised that the “South” building was on fire. The entire building was ultimately destroyed and with it the property of the plaintiffs, which consisted of various wooden patterns and advertising signs.

Following the fire, this suit was commenced by a six-count complaint on behalf of three tenants against the defendant. Three counts of the complaint alleged specific acts of negligence, such as permitting the accumulation of combustible materials, allowing a fire to start, failing to maintain an adequate guard service and failing to install and properly maintain an adequate sprinkler system; and three counts of alleged wilful and wanton negligence.

The case was heard by the trial court without a jury. At the conclusion of the case-in-chief, one of the tenants moved to dismiss itself from the complaint and this was allowed. At the same time, the defendant was successful in dismissing the ramaining counts charging wilful and wanton negligence in addition to certain specific charges of ordinary negligence. As to the remaining charges of negligence, the defendant adopted the testimony of one of the witnesses called by plaintiffs under section 60 as and for its evidence and closed proofs. The trial court held for the defendant. This appeal followed, raising three issues. First, that the conduct of the defendant constituted negligence as a matter of law; second, that the inoperative sprinkler system was a proximate cause of plaintiffs’ damage; and third, the failure of the defendant to file an answer in proper time constituted an admission of liability.

There is no question that when a landlord retains control over premises used in common by tenants, he owes the tenants a duty to keep the premises in a reasonably safe condition and is liable for injury occasioned by his failure to do so, Sollars v. Blayney, 31 Ill App2d 341, 348, 176 NE2d 477 (1961). On the other hand, a landlord is not an insurer of the safety of either his tenants or their property, Squire, Vandervoort & Co. v. Ryerson, 150 Ill App 255, 261 (1909). In the latter case, the defendant landlord installed a sprinkler system for the protection of his building and its tenants. The sprinkler system was inspected regularly, but on the occasion in controversy it opened, causing water damage to plaintiffs’ property. The Court denied liability saying, “No culpable negligence of defendant in relation to the sprinkling system or its management is inferable from the proofs, and certainly no negligent use of it which in the remotest degree can be said to have contributed to the precipitation of water from the sprinkler head, which caused the damage complained of to plaintiff’s property. We cannot say that the accident was brought about by a failure of defendant to do any act which the law imposed upon him as a duty. We think the defendant’s engineer’s account of his method of inspection was sufficiently thorough to meet every legal requirement. . . .”

Another jurisdiction recently considered a similar situation in the consolidated cases entitled Schectman and Drueding Bros. Co. v. Fils, 293 NYS2d 55, 30 App Div2d 878 (1968). In those cases an explosion and fire occurred in a factory building in Brooklyn. Prior to the explosion the fire officials of the City of New York had placed a violation notice on the building due to the defendant’s failure to erect a fire retardant protective ceiling as required by a statute. The Court denied liability, holding at page 56, “. . . (P)laintiffs were unable to establish their theory of the case. The testimony did not establish any likelihood that the injury would not have resulted even had the statute been complied with.”

The only proof in the record before us as to the genesis of the fire is provided by the former director of the City of Eockford Fire Prevention Bureau. In response to a hypothetical question, he rendered an opinion that the fire originated in the area of the “South” building where the inoperative sprinkler riser was located. On cross-examination he admitted that the cause of the fire was and is undetermined.

The defendant employed American to safeguard the system and the proofs indicated that when that company advised the defendant of a lowering in the pressure, steps were taken to correct leaks. On the occasion in question, the defendant attempted to take such steps but due to the fact that the day was a Sunday, defendant was unable to get any repairman on the job.

We have reviewed the record in this cause for evidence that would disclose that the defendant, as a matter of law, was negligent. While the plaintiffs suggest many things that might have been done by the defendant in hopes of averting that which in fact took place, still we cannot say that the trial court was in error when it decided that the defendant acted as a reasonable person would act under like circumstances. The trial court saw and heard the witnesses and concluded that there was no negligence on the part of the defendant. We are not inclined to upset that finding from the record in this case.

In addition, the plaintiff argues that the inoperative sprinkler system was a proximate cause of plaintiffs’ damage as a matter of law. It must be obvious to all that the sprinkler system had nothing to do with the origin of the fire. Whether or not the system could have reduced plaintiffs’ damage had it been operative, or whether the system would have increased the damage by causing water damage, or whether some other combination of circumstances would have increased or decreased plaintiffs’ damages are questions which, while interesting, remain unanswered.

The plaintiff has the burden of proving proximate cause. “An injury is no evidence of negligence and does not warrant an inference that one or two or more possible causes was the proximate cause of the injury,” Gibbs v. Procter & Gamble Mfg. Co., 51 Ill App2d 469, 478, 201 NE2d 473 (1964). It has long been recognized that mere guess or conjecture or speculation cannot form the basis for a judgment, Shramek v. General Motors Corp., 69 Ill App2d 72, 79, 216 NE2d 244 (1966). The record before us presents a series of unanswered questions. The plaintiff had the burden of answering these questions and failed to do so. To permit judgment for the plaintiff under these circumstances would be to engage in pure speculation and, in addition to that, we would be making a landlord the insurer of his tenants’ property. Both results are contrary to established principles.

When the case was originated in the trial court the defendant filed a motion to dismiss. That motion was granted in part and denied in part and the defendant was directed to answer the complaint as modified by order of the trial court. Apparently through inadvertence, the defendant filed no answer but the parties conducted their discovery proceedings and plaintiff made no motion to require an answer until the matter was reached for trial, at which point the defendant filed his answer with leave of court. The plaintiff now urges that the failure of the defendant to file his answer within apt time constitutes an admission of liability.

The trial court has discretion to permit the filings of tardy pleadings and it does not appear that such discretion was abused herein. Hanson v. Sheridan-Belmont Hotel Co., 35 Ill App2d 442, 183 NE2d 186 (Abst 1962). See also People v. Boening, 68 Ill App2d 1, 14, 215 NE2d 842 (1966). We also note that the parties proceeded with discovery and that plaintiff made no motion to require an answer. While the defendant should have filed his answer in apt time, it does not appear that the plaintiff was prejudiced by the failure to do so.

The cases cited by plaintiff as authority for this proposition, such as Johnson v. Illini Mut. Ins. Co., 18 Ill App2d 211, 151 NE2d 634 (1958), have to do with default judgments and hold that the party who voluntarily submits to a default judgment admits the justice of the demands made against him. There was no default judgment in this case and those cases are not applicable.

In conclusion we find that the plaintiff failed to prove the essential elements of its case. It did not prove any negligence on the part of the defendant. Even if there had been negligence, it failed to prove the proximate causation between the alleged negligence and plaintiffs’ damage, and finally, it left the amount of the damage completely in the realm of conjecture.

Therefore, the trial court was correct and should be affirmed.

Judgment affirmed.

ABKAHAMSON and DAVIS, JJ., concur.


text:
    Jill R. Sedlacek, Plaintiff-Appellee, v. Frank M. Sedlacek, Jr., Defendant-Appellant.
    Gen. No. 68-99.
    Second District.
    March 20, 1969.
    Knell, Lezak & Brody, of Chicago (Willard J. Stepek, of counsel), for appellant.

      Cowlin and Cowlin, of Crystal Lake, for appellee.
   MR. JUSTICE DAVIS

delivered the opinion of the court.

The plaintiff, Jill R. Sedlacek, obtained a divorce from the defendant, Frank M. Sedlacek, Jr., on December 15, 1964. The decree incorporated a property settlement agreement entered into between the parties on November 24, 1964. On May 6, 1966, the plaintiff filed a petition seeking a money judgment in the amount of certain 1964 real estate taxes, which she claimed were to have been paid by the defendant under the terms of the property settlement agreement and decree.

The defendant answered and cross-petitioned, contending that the plaintiff was to pay the 1964 real estate taxes; that the agreement did not clearly state this because of a joint and mutual mistake, and that the agreement and decree should be reformed so as to correctly reflect the intention of the parties.

The court heard the testimony of the parties, of their respective attorneys at the time the property settlement agreement was prepared, and of the father of the plaintiff. The court deemed this testimony relevant to the determination of the intention of the parties at the time the agreement, with respect to the payment of the 1964 real estate taxes, was entered into. At the conclusion of the evidence, the court entered a judgment order for the plaintiff in the amount of such taxes and denied the reformation sought by the defendant in his cross-petition. The defendant has appealed from this order.

The property settlement agreement referred to the defendant as “first party” and to the plaintiff as “second party.” Paragraph 4 thereof provided that two parcels of real estate would be the separate property of “second party” (the plaintiff). It then provided that the “first party” (defendant) would execute a deed conveying his interest in the properties. Next, the agreement stated: “First party is to assume and pay all current taxes and is to assume the mortgage payments on both of said properties.”

The agreement set forth that the defendant had, at the time of the agreement, prepaid four of the monthly mortgage payments on the one parcel of real estate. Since the entry of the divorce decree, the plaintiff has paid all of the unpaid mortgage installments as they have fallen due. She concedes that all of the taxes subsequent to the year 1964 are to be paid by her, but not the taxes for the year that was current at the time of the agreement and decree. She testified that it was her understanding, at the time, that she was to pay the taxes subsequent to the decree, but not the taxes for the period of time prior thereto. It was conceded by the plaintiff that she assumed the mortgage payments on the properties after they were conveyed to her.

The attorney for the defendant testified that it was his recollection that the plaintiff was to make all of the mortgage payments and tax payments falling due from the date of the decree, including the 1964 real estate taxes due and payable in the year 1965. The defendant testified similarly, and further stated that he had received the income from these properties during the year 1964.

The attorney for the plaintiff at the time of the divorce testified that the sentence in question was inserted in the agreement in lieu of a proposal that had been made in earlier negotiations; and that it was his understanding that since the agreement and decree were not consummated until the end of the year, the defendant, who had obtained the benefits of the property during that year, was to be responsible for all of the mortgage payments on the properties for all of that year, and the current taxes. He further testified that the husband (first party) was to assume all of the mortgage payments and expenses relative to these properties, including taxes, until such time as the deeds were delivered by him, “until the thing was consummated by divorce decree and the deed was given.”

The defendant contends that the refusal of the trial court to reform the sentence in question from “first party is to assume and pay all current taxes and is to assume the mortgage payments on both of said properties,” to, “second party is to assume and pay all current taxes and is to assume the mortgage payments on both of said properties,” was error and contrary to the manifest weight of the evidence.

Written instruments may not be reformed by a court on the grounds of a mistake of the fact unless the mistake existed at the time of the execution of the instrument; was mutual and common to all parties; was such that the parties intended to say one thing but by the written instrument expressed another; and the proof of these matters must be established by very strong, clear and convincing evidence. Biskupski v. Jaroszewski, 398 Ill 287, 293, 294, 76 NE2d 55 (1947); Ambarann Corp. v. Old Ben Coal Corp., 395 Ill 154, 166, 69 NE2d 835 (1946); Tope v. Tope, 370 Ill 187, 191, 192, 18 NE2d 229 (1938); Michigan Mut. Liability Co. v. Type & Press Co. of Illinois, 62 Ill App2d 364, 370, 371, 210 NE2d 787 (1965).

We do not think the evidence in this case justifies the reformation sought by the defendant. The evidence as to what was intended by the sentence in controversy was conflicting. While the defendant testified that he understood at the time that the plaintiff, his wife, was to pay the 1964 real estate taxes, her understanding was to the contrary. The testimony of the plaintiffs attorney in the divorce proceeding was most enlightening with reference to what transpired at the time, and the intent of the parties. The testimony suggested that there had been extended and extensive negotiations in attaining a property settlement. As a result of these negotiations, earlier proposals were rejected, and finally a settlement was reached — but not until near the end of the year 1964; and that the sentence in question was inserted to assure that the defendant, who held title to the real estate in question for virtually all of the year 1964, would be responsible for all of the mortgage payments during that period of time, and for the real estate taxes attributable to that period of time, as well. This evidence falls considerably short of the clear and convincing proof required to alter or change the written terms of a contract.

The trial court heard and saw the witnesses; the testimony was contradictory; and the court concluded that the proof did not clearly and convincingly establish that there was a mutual mistake of fact resulting in the failure of the agreement to express the true intention of the parties. Under these circumstances, we may not reverse the judgment of the trial court unless it is manifestly against the weight of the evidence. Myers v. Krajefska, 8 Ill2d 322, 328, 134 NE2d 277 (1956); Revcor, Inc. v. Fame, Inc., 85 Ill App2d 350, 356, 357, 228 NE2d 742 (1967); Michigan Mut. Liability Co. v. Type & Press Co. of Illinois, supra, 371.

An examination of all the evidence leads us to conclude that the judgment is not against the manifest weight of the evidence and, consequently, the judgment is affirmed.

Judgment affirmed.

ABRAHAMSON, P. J. and SEIDENFELD, J., concur.


text:
    Janice R. Rank, Plaintiff-Appellee, v. Joseph E. Rank, Jr., Defendant-Appellant.
    Gen. No. 68-131.
    Second District.
    March 20, 1969.
    Rehearing denied April 17,1969.

      William H. Snively, of Rockford, for appellant.
    Robert J. Shaw, of Rockford, for appellee.
   PRESIDING JUSTICE MORAN

delivered the opinion of the court.

This is an appeal taken from a judgment and decree entered by the Circuit Court of Winnebago County granting a divorce to the plaintiff.

Plaintiff, on September 13, 1966, filed a complaint for divorce charging two acts of physical cruelty by the defendant on July 15,1965, and June 20, 1966, respectively. The complaint did not allege a separation date and, on September 27,1966, the defendant filed his answer which admitted certain facts as well as denied certain other facts.

On March 12, 1968, the complaint and answer, as filed, came on to be heard. During the course of the hearing an additional act of physical cruelty alleged to have taken place on March 11, 1967, was raised by the plaintiff. The court over the defendant’s objection allowed the plaintiff to amend her complaint on its face and to file a supplemental complaint and further provided that the defendant would be allowed to answer this additional act of cruelty. At the conclusion of the hearing on this date, defendant’s counsel requested leave of the court to have his original answer stand as his answer to the supplemental complaint containing the additional act of cruelty. No further pleadings were filed nor was any further objection raised by the defendant concerning this additional act of cruelty.

During direct examination the plaintiff testified that she had last separated from her husband on January 11, 1967, and further acknowledged cohabitation with the defendant up until that date. On cross-examination the plaintiff again stated that she had separated from her husband on January 11, 1967, and at one point, in an obvious maze of questions and answers, responded to the defendant’s counsel that she had separated as husband and wife for the first time on “June 11. On January 11th.” The defendant himself, on direct examination, confirmed the January 11,1967, separation date and never indicated cohabitation with the plaintiff on any date thereafter. At another point, while the plaintiff was being cross-examined, she admitted that she used a knife on the defendant ten years prior to the incidents alleged in the complaint. The defendant directly asked and she answered that the knife incident had no bearing upon nor relationship to the events as alleged in the complaint.

The court upon considering the testimony entered judgment for the plaintiff. A decree granting a divorce to the plaintiff was entered on May 28, 1968. From this judgment the defendant appeals.

The defendant contends that the court erred in granting the plaintiff leave to file the supplement to her complaint during the hearing. The defendant cites as authority for his position section 39 of the Civil Practice Act (Ill Rev Stats 1965, c 110, § 39), which states that “supplemental pleadings, setting up matters which arise after the original pleadings are filed, may be filed within a reasonable time by either party by leave of court . . . .” This language gives support to what the trial court did rather than detract from it. The defendant did not cite, nor were we able to find, any authority for his contention in this respect. Clearly, the Civil Practice Act was designed to eliminate formalized rules of common-law pleading and to provide a procedure whereby substantive rights could be determined with a minimum of delay, technicality and expense. Skolnick v. Martin, 32 Ill2d 55, 59, 203 NE2d 428 (1964); Federal Savings & Loan Ins. Corp. v. LaSalle Nat. Bank, 78 Ill App2d 408, 410-411, 222 NE2d 533 (1966). Section 39 of the Civil Practice Act should be liberally construed by the courts to affect its general proposition. The extent to which the courts have gone to allow liberality in pleading is illustrated in the case of Kovac v. Kovac, 26 Ill App2d 29, 48-51, 167 NE2d 281 (1960).

In the present case the court allowed the plaintiff to amend her complaint on its face and also to file a supplemental pleading. We feel that the trial judge clearly had the authority to allow such action under section 39, and also under section 46 of the Civil Practice Act. (Ill Rev Stats 1965, c 110, § 46.) The trial judge has broad discretion with respect to the allowance of amendment to pleading and this discretion is not abused unless clearly arbitrary and without foundation. This precept of the law has been specifically applied to divorce actions and amendment of pleadings during trial. Varap v. Varap, 76 Ill App2d 402, 222 NE2d 77 (1966). In that case the plaintiff amended her pleadings during the trial to add an additional ground for the divorce. The original complaint had been on file for more than a year at this point in time. The trial court allowed the amendment. It was held on appeal that “. . . Wide discretion is given to the trial court in permitting pleadings to be amended . . . and the court’s discretion was not abused in allowing the amendment for desertion,” Varap v. Varap, ibid., 411-412. We find no merit to the defendant’s contention in this regard.

It is also contended that the trial court erred in granting of the divorce because the evidence disclosed that the plaintiff had condoned the defendant’s conduct. The defense of condonation, which is an affirmative defense, was not pleaded and therefore would not ordinarily be considered by us. McGaughy v. McGaughy, 410 Ill 596, 600, 102 NE2d 806 (1952); Hinkleman v. Hinkleman, 88 Ill App2d 47, 49, 232 NE2d 300 (1967); however, on oral argument before this Court, the defendant moved to amend his answer to specially plead condonation. This was allowed.

The defendant bases the condonation on the fact that the plaintiff, while under cross-examination, in response to defendant’s question, answered that the date of separation was “June 11. On January 11th.” This inadvertence was later corrected on redirect examination. Further, the defendant, on direct examination, testified that the separation took place on January 11, 1967. We are, therefore, at a loss to understand how the defendant can seriously claim condonation as a ground for reversal.

The defendant next claims that the defense of recrimination was established and therefore the trial court erred in entering the decree. A simple manner of disposing of this contention would be to hold that since the defendant failed to plead this affirmative defense or even request to amend his pleadings to include this as a defense during oral argument before this Court, we will not consider it. McGaughy v. McGaughy, supra. However, on the merits the defendant cannot prevail. The only basis for this defense is that during cross-examination of the plaintiff the following questions and answers were elicited by the defendant:

Q. “Did you ever use a knife on your husband?”
A. “That’s a long story, if I can tell it, I would say yes.”
The Court: “Well, you can answer yes or no.”
Mr. Roszkowski: “Just answer yes or no; you did?”
A. “Yes.”
The Court: “What was the date of that?”
Mr. Roszkowski: Q. “When was that, was that on either of these occasions ?”
A. “No.”
Q. “It was not?”
A. “That was about ten years ago. That didn’t have anything to do with either of the occasions that I have alleged in my Complaint.”

The essence of recrimination is “a counter-charge by the defendant of a cause of divorce against the complainant.” Duberstein v. Duberstein, 171 Ill 133, 144, 49 NE 316 (1898). The above testimony surely does not establish sufficient evidence to constitute “a countercharge.” Moreover, we feel that the grounds and misconduct which form the basis for recrimination would be required to have taken place within a reasonable period of time with reference to the original grounds charged in plaintiffs complaint. In the present case, the ten-year lapse between the alleged recriminatory event and the subsequently filed grounds for divorce are too remote and therefore, recrimination was not established.

Finally, the defendant claims that the finding by the trial court in favor of the plaintiff was against the manifest weight of the evidence. It is within the province of the trial court to make the determination whether there has been sufficient evidence with which to establish either of the parties’ contentions. In the instant case the trial court heard the evidence, viewed the witnesses and was in a better position to conclude the issues. This court will not set aside the finding and judgment of a trial court unless the decision reached by such court is against the manifest weight of the evidence. Hoffmann v. Hoffmann, 40 Ill2d 344, 349, 239 NE2d 792 (1968); Curran v. Curran, 19 Ill2d 164, 169, 166 NE2d 13 (1960). In this case, it was not.

From a careful consideration of the record we can find no reversible error. The judgment of the Circuit Court of Winnebago County is affirmed.

Judgment affirmed.

ABRAHAMSON and SEIDENFELD, JJ., concur.


author: TEAPP, P. J.

text:
    In the Matter of the Estate of Charles Oliver Leake, Deceased. James Leake and William Stephenson, Individually, and as Executors Under the Last Will and Testament of Charles Oliver Leake, Deceased, Plaintiffs-Appellees, v. James A. Million, Edna Haigh, Allie Winchester, The Salvation Army, Opal Stephenson King, et al., Defendants, James A. Million, et al., Defendants-Appellants.
    Gen. No. 10,959.
    Fourth District.
    March 20, 1969.

      Cohn, Cohn and Korein, of East St. Louis (Joseph Cohn, of counsel), for appellants.
    Harry G. Story and William T. Wilson, of Jacksonville, for appellees.
   TEAPP, P. J.

Defendants, James A. Million, Edna Haigh and Allie Winchester, who are the sole heirs of Charles Oliver Leake, testator, appeal from a decree of the Circuit Court, construing the will of the testator on complaint of the plaintiff executors, James Leake and William Stephenson.

In substance the will in question first left all property to the testator’s wife, and then provided:

“Item FOUE: In the event my wife should predecease me, then and in that event I give and bequeath all the rest and residue of my estate to be divided as follows:
“To The Salvation Army, a one-seventh part;
“To Mollie Harney, a one-fourteenth part;
“To Minnie Young, a one-fourteenth part;
“To Charles Bramham, a one-seventh part;
“To Nettie Leake, a one-seventh part;
“To William Stephenson, a one-seventh part;
“To James Leake, a one-seventh part;
“To Opal Stephenson, a one-seventh part;
“In case of the death of MOLLIE HAENEY, MINNIE YOUNG, or either of them, then and in that event the share of the respective parties shall revert back to my residuary estate, and be divided equally among the remaining heirs of my estate. In case of the death of NETTIE LEAKE, JAMES LEAKE and OPAL STEPHENSON, their respective shares shall be distributed among the heirs of said decedents the same as they shall distribute their own estate.”

The testator died July 17, 1964, leaving the will dated July 17,1944, from which the foregoing excerpt is taken. None of the named beneficiaries were heirs of the testator. The testator’s wife, and residuary beneficiaries, Mollie Harney, Minnie Young, Charles Bramham and Nettie Leake, all predeceased the testator. The existing residuary beneficiaries at the death of the testator were The Salvation Army, William Stephenson, James Leake and Opal Stephenson.

The deceased residüary beneficiary, Nettie Leake, died intestate and left descendants who survived the testator. The trial court entered a decree holding that the one-seventh share of Nettie Leake passed to her heirs.

The court held that the one-seventh share of Charles Bramham passed by section 49 of the Probate Act, chapter 3, § 49, HI Rev Stats 1965, to the remaining residuary beneficiaries in equal shares. The decree also provided that by virtue of the trial court’s construction of the will, the respective shares of Mollie Harney and Minnie Young passed to the residuary beneficiaries in equal shares and that the heirs at law of the testator, James A. Million, Edna Haigh and Allie Winchester take nothing under the will and have no interest in the estate of Charles Oliver Leake.

Defendants first contend that there is no ambiguity in the will requiring construction, and second that the gift over in the event of the prior deaths of Mollie Harney and Minnie Young is clearly to the heirs at law of the testator.

Since the beneficiaries of the residuary estate are in no instance heirs of the testator, it is not possible to have the share of Mollie Harney or Minnie Young “revert back to my residuary estate” and at the same time be given to the testator’s heirs at law, who are in no instance, included in the residuary estate. The question whether the will required a construction justifies no extended discussion. It did require construction.

In support of their contention that the testator intended the lapsed gifts to Mollie Harney and Minnie Young to go to the heirs at law, defendants argue that to give the said shares to the residuary beneficiaries would render meaningless the following language:

“Then and in that event the share of the respective parties shall revert back to my residuary estate and be divided equally among the remaining heirs of my estate.”

The reason given for this position is that under the antilapse statute, chapter 3, § 49, 111 Rev Stats 1965, these shares would have gone to the residuary estate without the quoted provision and, therefore, the result reached by the court makes the provision unnecessary and therefore meaningless. They also argue that the primary meaning of the word “heirs” is those persons who would take under the descent statute, and in the absence of compelling reasons otherwise the words must be construed to mean heirs at law as defined by said statute.

The first contention is not convincing for several reasons. It presupposes an intention based upon an anti-lapse statute which did not exist in this form when the will was drawn. The provision of the antilapse statute in 1944 was confined to descendants of the testator. At the time the will was executed there would have been an intestacy except for Item FOUR of the will. Further, defendants’ analysis is confined to one aspect of the provisions of Item FOUR of the will. A different provision was made in the case of the death of other legatees, i. e., Nettie Leake, James Leake and Opal Stephenson. In their case the share was to go to their heirs “the same as they shall distribute their own estate.” The shares of these latter persons would not have been handled in the same manner by the antilapse statute in effect at the time of the execution of the will, or the one in effect at the time of death. For some reason the testator made no provision for the prior death of Charles Bramham or William Stephenson. Finally, if the word heirs in the Item FOUR of the will were to be taken to mean heirs at law, it would render meaningless the provisions therein that “the share of the respective parties shall revert back to my residuary estate.”

Defendants cite numerous Illinois cases which they say sustain the principle that the primary meaning of the word heirs is heirs at law as defined by the statute of descent, and that without compelling evidence from the language of the will or from extrinsic sources, the primary meaning must be accepted. Dillman v. Dillman, 409 Ill 494 at 502, 100 NE2d 567, supports this general statement. Also, in citing In re Estate of Fahnestock, 384 Ill 26, 50 NE2d 733, it states: “On the other hand, the technical meaning of the word ‘heirs’ will not be given effect to defeat the obvious intention of a testator.” Many of the cases cited by defendants in which the question of the meaning of the word “heirs” arises, are cases in which the question really is whether the word heirs in the particular context is a word of purchase, that is naming those who take, or a word of limitation, meaning the indefinite succession of descendants with the resulting application of the Rule in Shelley’s case to establish a fee simple estate in the named life tenant. See Lydick v. Tate, 380 Ill 616, 44 NE2d 583; Havely v. Comerford, 343 Ill 90, 174 NE 830; Fay v. Fay, 336 Ill 299, 168 NE 359 and Meeker v. Steepleton, 309 Ill 337, 141 NE 158.

It has been stated by the Supreme Court of Illinois in many cases and in many forms that the paramount rule in construction of a will is to ascertain and give effect to the intention of the testator. Continental Illinois Nat. Bank & Trust Co. v. Harris, 359 Ill 86 at 95, 194 NE 250. In Bowe-Parker, Page on Wills, Vol 4, p 421, § 34.8, recognition is given to a secondary meaning of heirs when dictated by the context as follows:

“Unless the context of the will or the surrounding circumstances show a contrary intention, ‘heirs’ is used in its technical or prima facie meaning, and not in the secondary meaning of devisees or legatees. However, the context may show that the word ‘heirs’ means devisees or legatees.”

In Thompson on Wills, 3rd ed, p 414, § 265, it is said:

“It is held that the word ‘heirs’ when used in a will is flexible and should be so construed as to give effect to the intention of the testator as manifested by the will.”

and on p 418, § 267:

“In order to give effect to the intention of the testator as gathered from the context of the will and the surrounding circumstances, the word ‘heirs’ may be construed to mean beneficiaries previously mentioned in the will as devisees or legatees, even where such beneficiaries are not in fact heirs, if the context shows an intention to include them.”

See also 36 HI Law and Practice, Wills, p 334, § 244.

An outstanding circumstance in respect to the present will is the fact that none of the defendants, who are now the sole heirs, is a named beneficiary in the will under any contingency. There is evident a plan on the part of the testator to provide for the contingency of the death of certain named beneficiaries. This plan, so far as it is executed, divides these beneficiaries into two groups. As to one group the share is left to the heirs of the beneficiaries in the manner that the beneficiaries provide for distribution of their own estates. As to another group the share is to revert to the residuary estate. The language of the clause is inconsistent with any intention of the testator that his heirs, in the statutory meaning, are to take under any combination of events.

Our courts have also subscribed to the principle that where the same words are used in different parts of a will they should, if possible, be given the same meaning. Abrahams v. Sanders, 274 Ill 452 at 458, 113 NE 737. Here in Item FOUR of the will, the testator provided as to the contingency of death of Nettie Leake and others that “their respective shares shall be distributed among the heirs of said descendants the same as they shall distribute their own estate.” Certainly in this clause the testator was equating the word “heirs” to distributees.

The testator, in Item FOUR in the introductory portion, gave and bequeathed “all the rest and residue of my estate” to nonheirs. In the same item of the clause in question he provided that the “shares of the respective parties shall revert back to my residuary estate.” We cannot think that “my residuary estate” in the second portion of the item meant anything different from “all the rest and residue of my estate” in the first portion. Since the contingency concerned the absence of one beneficiary of the gifts of the residue, the provision that the share should revert back to “my residuary estate” would seem to indicate that the testator was referring to the same residuary provision that he had just established. Some significance can be attributed to “revert back” in that such reference is to something that was placed somewhere and had been taken away. The term “revert to my estate” has been held to mean “return to the aggregate of all the property which I may leave at my death.” Downing v. Grigsby, 251 Ill 568, 96 NE 513 and Comisky v. Moore, 26 Ill2d 494 at 499, 187 NE2d 256. The shares provided for Mollie Harney and Minnie Young had come from the residue of the estate and such was the only place to which they could “return.”

We cannot overlook the fact that the word “heirs” does not stand alone. The subject matter of the clause is the contingency of the loss of one or more members of a named group, and the provision is that such share “shall revert back to my residuary estate and be equally divided among the remaining heirs of my estate.” The normal construction would be that when the testator is speaking of a group he has named and of the loss of a member of the group, his reference to those “remaining” is a reference to the same group. It is also logical to assume that since the testator is speaking of a group when he uses the term “revert back” he means the same group because it is difficult to conceive a share literally reverting back to a place it had never been. See Johnson v. Askey, 190 Ill 58, 60 NE 76.

In other jurisdictions where the context created by previous mention of persons as devisees or legatees indicated it, a subsequent reference to “my above named heirs,” or the like, has been construed to mean my above named devisees or legatees. Eisman v. Poindexter, 52 Ind 401 (1876). See also cases cited in 70 ALR 583. In re Widmeyer, 28 Pittsb LJNS (Pa) 208, noted in the annotation, included certain churches in a residuary gift providing for division among “all the aforesaid heirs herein mentioned.”

It is a fair judgment the testator’s will disclosed a simple plan. This first left everything to his wife and if she predeceased him to certain named beneficiaries, none of whom were, in fact, heirs of the testator. It was his further intention in the event of lapse of some of the gifts to give the share to such persons as the beneficiary provided for in his own estate, and in the event of lapse of other gifts to redistribute among the remaining residuary beneficiaries. We would do violence to the direction to revert back to the residuary estate, if we were to assign those lapsed shares to persons not in the residuary clause. We do not think that adopting a secondary meaning of heirs as beneficiaries does violence to the context, especially where in the same provision the word heirs in one instance would necessarily mean distributees.

The decree of the Circuit Court is affirmed.

Affirmed.

SMITH and CRAVEN, JJ., concur.


author: STOUDER, J.

text:
    Lion Specialty & Properties, Inc., a Corporation, Plaintiff-Appellant, v. City of Chicago Zoning Board of Appeals, 320 Parking, Inc., et al., Defendants-Appellees.
    Gen. No. 53,082.
    First District.
    March 21, 1969.

      Rothschild, Hart, Stevens & Barry, of Chicago, for appellant.
    Raymond F. Simon, Corporation Counsel of City of Chicago (Marvin E. Aspen and Joseph N. Lascaro, Assistant Corporation Counsel, of counsel), Holleb, Mickelson & Gerstein, and O’Brien, Heywood and Evans, of Chicago (Stuart H. Glicken and Donald J. O’Brien, Jr., of counsel), for appellees.
   STOUDER, J.

This is an appeal from a judgment of the Circuit Court of Cook County entered in an administrative review proceeding which judgment approved and confirmed an order of the City of Chicago Zoning Board of Appeals.

Upon application therefor and after notice and hearing, the Chicago Board of Zoning Appeals on August 25, 1967, granted a special use to 320 Parking, Inc. with respect to the premises located at 1-21 North Franklin Street and 226-234 West Madison Street, Chicago, Illinois, for the purpose of locating and erecting a nine-level, self-parking facility thereon. Plaintiff, Lion Specialty & Properties, Inc., was duly notified of the application for special use, appeared at the hearing and after entry of the order approving such special use, filed its complaint in the Circuit Court of Cook County under the Administrative Review Act seeking to reverse the order of the Chicago Zoning Board of Appeals.

The complaint for review alleges in paragraph one the entry of the order granting the special use as heretofore described. In paragraph two it is alleged that the plaintiff, being the owner of the immediately adjacent premises improved with an office building, was affected by the order. Paragraph three alleges that the decision of the Zoning Board was improper because one, it was not in accord with the law and the facts, two, plaintiff was denied due process of law and three, the Board refused plaintiff an opportunity to submit evidence, limited plaintiff’s right of cross-examination and conducted an ex parte examination of City Officials who did not testify at the hearing.

The Chicago Board of Zoning Appeals duly filed the record in the cause together with its answer which merely asked that the complaint for review be dismissed and that the order of the Board be approved. LaSalle National Bank as Trustee, and 320 Parking, Inc., filed an answer admitting the allegations of paragraphs one and two of the complaint but denying the allegations of paragraph three thereof.

Pursuant to the petition of LaSalle National Bank as Trustee, the trial court set the matter for hearing on its merits for October 25, 1967, at 2 p. m. Immediately thereafter the plaintiff moved the trial court to continue the final hearing to a later date and in the motion the plaintiff also requested permission to take certain depositions. Hearing on the motion was successively postponed because of the absence of the trial judge until the morning of October 25,1967, at the hour of 9 a. m., being the same date but at an earlier time than the case had been set for hearing on its merits. On the morning of October 25,1967, the trial court heard arguments in favor of and in opposition to plaintiff’s motion for continuance and for leave to take depositions. The trial court denied the plaintiff’s motion for continuance and for leave to take depositions. The trial court denied the plaintiff’s motion and the propriety of such ruling is not questioned on this appeal. However after disposing of the motion, the trial court proceeded to approve the order of the Zoning Board of Appeals without, as alleged on this appeal by the plaintiff, holding any hearing thereon or permitting arguments with reference thereto.

On appeal to this court plaintiff’s only assignment of error is that the trial court failed to hold a hearing on the complaint for review as required by the Administrative Review Act, 111 Rev Stats 1967, c 110, section 274 (§11).

Defendant, in support of the judgment of the trial court, argues that plaintiff’s complaint for review was wholly insufficient to warrant review by the trial court. Further, according to defendant, plaintiff was accorded an adequate hearing and in any event, plaintiff has failed to show that its rights were prejudiced by the trial court’s action which is required before reversal of the trial court’s action is justified.

The first question which we will consider is defendant’s assertion that plaintiff’s complaint for review under the Administrative Review Act is insufficient and because of such insufficiency plaintiff lacks any standing in this court to complain of the trial court’s action.

The sufficiency of the complaint was not challenged by defendant in the trial court by either motion or answer and accordingly the initial question is whether this issue is appropriately raised for the first time on review.

Although defendant relies on Rosenfeld v. Zoning Board of Appeals, 19 Ill App2d 447, 154 NE2d 323, and a quotation therefrom, we believe that both the quotation and the conclusions of the court in Rosenfeld are contrary to the position asserted by defendant. In Rosenfeld the court stated, “Plaintiffs, however, must plead (Winston v. Zoning Board of Appeals of Peoria County, 407 Ill 588, 95 NE2d 864) and prove (Moran v. Zoning Board of Appeals of City of Chicago, 17 Ill App2d 280, 149 NE2d 480; 222 East Chestnut St. Corp. v. Board of Appeals of City of Chicago, 14 Ill2d 190, 152 NE2d 465) their interest in maintaining this action. We think defendants have waived this objection to the complaint by not raising the question of plaintiffs’ interest at the trial. Anson v. Haywood, 397 Ill 370, 380, 74 NE2d 489. They have not waived the point as to the proof.” With respect to its observation that proof of the allegations could not be waived, the principal issue in the case, the court in Rosenfeld further observed that a complainant could not be expected to make such proof where the Administrative Board had not permitted evidence to be introduced in support thereof.

Section 45 of the Civil Practice Act (Ill Rev Stats 1967, c 110, § 45) provides “All objections to pleadings ... be raised by motion” which “shall point out specifically the defects complained of, and shall ask for particular relief.” Section 42 of the Civil Practice Act provides that “all defects in pleadings, either in form or substance, not objected to in the trial court are waived”; it also recites 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 foregoing provisions recognize the salutory rule that controversies ought to be resolved on the basis of issues joined and further that where deficiencies in pleadings are claimed, a party ought to be permitted to amend his pleadings to obviate such deficiency. Where the question of the insufficiency of a pleading is raised for the first time on appeal such opportunity to amend is lost and issues may be submitted for resolution which were not deemed of sufficient importance to be raised in the trial court. Accordingly, it appears that the rule to be applied is that such question will only be considered when the complaint fails wholly to state a cause of action and will not be considered when the allegations are merely defectively or imperfectly set forth. See Fisher v. Illinois Terminal R. Co., 350 Ill App 555, 113 NE2d 344; Grizzard v. Matthew Chevrolet, 39 Ill App2d 9, 188 NE2d 59 and Boyle v. Veteran Hauling Line, 29 Ill App2d 235, 172 NE2d 512. Thus the issue is not whether a trial court would or should have granted a motion to strike or dismiss had the same been made, but whether the complaint wholly fails to set forth a cause of action.

We believe the complaint alleged substantially, although somewhat imperfectly, a basis for review of the Zoning Board decision and that defendant waived the deficiencies not asserted. Rosenfeld v. Zoning Board of Appeals, supra.

This brings us to plaintiff’s only assignment of error, namely that it was not afforded a hearing as required by the Administrative Review Act. Section 274 (§ 11), c 110, Ill Rev Stats 1967, provides, “Every action to review any final administrative decision shall be heard and determined by the court with all convenient speed. The hearing and determination shall extend to all questions of law and of fact presented by the entire record before the court. No new or additional evidence in support of or in opposition to any finding, order, determination or decision of the administrative agency shall be heard by the court. The findings and conclusions of the administrative agency on questions of fact shall be held to be prima facie true and correct.” It is conceded that the decisions of the Chicago Zoning Board of Appeals are reviewable under the terms of the foregoing section. Ill Rev Stats 1967, c 24 (Cities and Villages) § 11-18-13.

As indicated earlier, plaintiff’s motion for continuance and to take depositions was denied by the trial court on the morning of October 25, 1967. Thereafter the following ensued, (Barry, counsel for plaintiff and Glicken, counsel for defendant): “Mr. Barry: Do I understand, your Honor, we are proceeding with the hearing this afternoon at 2:00 o’clock? The Court: What is to be heard? I read the record. The Board of Appeals, the Zoning Authority, I don’t know anything, they ruled and in accordance with the evidence. . . .” At this point the argument was resumed on the motion and the motion was again denied. “. . . Mr. Barry: Pardon me, your Honor. You mean, we have a matter set this afternoon, do I understand your Honor’s ruling that at this time without giving us an opportunity to be heard on the record? The Court: I read the record. Mr. Barry: Does your Honor consider your own responsibility in this regard to be merely read the record and rule? The Court: That is all. Mr. Barry: That is, — The Court: If they (had) evidence before them to justify the decision, there is nothing I can do about it, to substitute my judgment for their judgment. Mr. Barry: May we have a stay order and an appeal bond set? The Court: Sure. Mr. Barry: We will be in on a motion for that. The hearing, as I understand, set for 2:00 o’clock this afternoon now has been held, your Honor’s ruling sustaining the Board? Mr. Glicken: Can we still have a hearing at 2:00 o’clock? The Court: What is to be heard? Mr. Barry: We had the hearing? The Court: I read the record. I approve the finding of the commission.”

Plaintiff argues that on the basis of the foregoing, no hearing was held as required by the Administrative Review Act, section 274, supra. Plaintiff relies principally on Drezner v. Civil Service Commission, 398 Ill 219, 75 NE2d 303, which appears to be the only case dealing with the nature of the hearing in the trial court contemplated by the provisions of the Administrative Review Act.

In Drezner, review of a decision of the Civil Service Commission was had under provisions of the Administrative Review Act. As set forth in a quotation in the opinion, the hearing before the trial court was as follows: “The Court: What is this gentlemen? Mr. Thiesse: I wish to have this matter continued for a short time due to the fact that I am engaged. The Court: There is no need to put this over because, as I see the record, it is a question of whether to believe Drezner or the tavern owner as to the $20 bribe solicitation. The commission elected to believe the tavern owner and I am not going to disturb the ruling of the commission. Therefore, draw up your order sustaining the findings of the commission. Mr. Bulger: What will be the bond? The Court: Well, you gentlemen get together and figure that out for yourselves.”

With respect to the hearing before the trial court as heretofore set forth, the court in Drezner declared, “There is another ground for reversal herein. The act provides for the procedure to be followed in obtaining a review of the administrative body’s decision by the superior or circuit court. The act must be followed and its provisions are meant to be followed in entirety and not in any perfunctory manner. When the complaint was filed herein in the superior court, it was the duty of the judge in that court to hear the arguments and to review the proceedings thoroughly before making his decision. In this cause this was not done. The law requires something more than the statement found in the record here. The legislature did not intend that the act should be so lightly followed nor was it intended nor does the law allow a stamp of approval to be placed on the findings of an administrative agency merely because such agency heard the witnesses and made the requisite findings.”

We believe that the observations of the court in Drezner are equally applicable to the instant case and we can only conclude that plaintiff was not afforded a hearing as required by statute.

Defendant attempts to distinguish the instant case from the Drezner case, thereby implying that an adequate hearing was held. First, defendant asserts that in Drezner there is no indication that the trial court read or reviewed the administrative record. We find no basis for any such distinction. It appears from the quotation of the proceedings in the trial court in Drezner that the court had read the record since it knew in general the basis of the administrative order, i. e., conflicting testimony. Further, there is no indication that a trial court will have satisfied its duties in the reviewing of administrative decisions by merely reading the record. Secondly, defendant argues that in Drezner the Supreme Court did review the record of the administrative agency and found that it was unsupported by the evidence. It is true that in Drezner the Supreme Court considered the propriety of the ruling of the administrative agency on its merits but it is clear the Court considered the impropriety of the decision as an independent reason for reversing the action of the trial court. Thirdly, defendant asserts that the standard of proof required of the administrative agency in the Drezner case, namely “clear and convincing evidence” was different from the standard of proof required in the instant case “preponderance of the evidence.” It is clear that neither the opinion nor the statute make any such distinction in the nature of the hearing required and the duty of a trial court to conduct a full and fair hearing is independent of the persuasive burden necessary to sustain the action of the administrative agency.

Defendant has devoted a large portion of his brief and argument to the propriety of the Board’s order on the apparent theory that notwithstanding the failure of the trial court to consider such arguments, reversal of the trial court’s action is only warranted if we find the action of the Board improper. Since the propriety of the Board’s action must be first determined by the trial court and the arguments with respect thereto directed to the trial court in the first instance, we believe the propriety of the Board’s action is not before us and we express no opinion with respect thereto.

For the foregoing reasons the judgment of the Circuit Court of Cook County is reversed and remanded with directions to proceed in accord with the view expressed herein.

Judgment reversed and remanded with directions.

ALLOY and SCHEINEMAN, JJ., concur.