author: JUSTICE O’CONNOR

text:
    MARTIN MORENO, individually and on behalf of all other similarly situated, Plaintiff-Appellant, v. JOE PERILLO PONTIAC, INC., et al., Defendants-Appellees.
    First District (1st Division)
    No. 81—1936
    Opinion filed January 10, 1983.
    Rehearing denied March 7, 1983.

      James O. Latturner and Helen Cropper, both of Legal Assistance Foundation, of Chicago, for appellant.
    Peterson, Ross, Schloerb & Seidel, of Chicago (J. Robert Geiman and E. J. Kerschner, of counsel), for appellee Bankers United Life Assurance Company.
    Kralovec, Marquard, Doyle & Gibbons, Chartered, of Chicago (Harry Ray Chiles, Jr., of counsel), for appellee Joe Perillo Pontiac, Inc.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Plaintiff Martin Moreno brought this action on his own behalf and on behalf of all others similarly situated, alleging, as against one or more of the defendants, breach of contract, breach of fiduciary duty, violation of certain specified statutes and fraudulent misrepresentation with respect to a policy for credit life insurance purchased by plaintiff and others in conjunction with the installment purchase of automobiles. Defendants filed a hybrid motion to strike and dismiss pursuant to both sections 45 and 48(i) of the Civil Practice Act (now sections 2 — 615 and 2 — 619 of the Code of Civil Procedure, Ill. Rev. Stat. 1981, ch. 110, pars. 2 — 615, 2 — 619) which were simultaneously granted by the trial court. The court also denied plaintiff’s motion for class certification. Plaintiff appeals.

There is no dispute as to the facts giving rise to plaintiff’s claim. On April 20, 1979, plaintiff entered into a retail installment contract with defendant Perillo Pontiac for the purchase of a Pontiac Bonneville. In conjunction with his purchase of the automobile, plaintiff purchased decreasing-term credit life insurance which was sold by Perillo pursuant to a group policy between Perillo and defendant Bankers United Life Assurance Company (Bankers). The certificate of insurance was completed by Perillo at the site of the car sale. A premium of $304.86, which was based on a typed-in máximum benefit of $11,725.44, was financed along with the price of the car. The printed certificate, however, contained provisions limiting plaintiff’s recovery on the credit life insurance policy to $10,000:

“The Company promises to pay, upon receipt of the proof of the death of the *** Obligor ***, the amount of insurance then in force, provided that the amount of insurance *** in no event shall exceed $10,0000.” (Emphasis added.)

The certificate also provided:

“No change in this Policy shall be valid until approved by an executive officer of the Company and unless such approval is endorsed hereon or attached hereto. The Agent has no authority to change the Policy or to waive any of its provisions.
* * *
If like certificates previously issued by the Company to the Obligor from all creditors be in force concurrently herewith making the aggregate amount of insurance in excess of $10,000, all such excess insurance shall be void, and the premiums paid for such excess shall be returned to the Obligor or his estate.” (Emphasis added.)

The correct premium for a $10,000 policy limit would have been $260. Plaintiff, therefore, brought this action to recover the excess premium paid and for other relief, alleging that defendants each accepted and retained premiums based on a potential recovery in excess of that permitted by the contract and that Bankers failed to honor that contract provision requiring a refund of excess premiums. Plaintiff also alleged that there were others similarly situated and prayed that he be appointed to represent the class.

In its “Motion to Strike and Dismiss,” which was later joined in by Perillo, Bankers alleged that as a matter of law plaintiff’s maximum recovery was $11,725.44 and that Bankers had waived the policy limit. Bankers attached the affidavit of its assistant vice-president, Robert Warner, which stated that Bankers had waived the $10,000 limit, notwithstanding the fact that such waivers are explicitly forbidden by the contract language.

In response, plaintiff initially raised the argument that defendants’ motion was an improper, hybrid motion which should therefore be denied. Plaintiff also contended that a cause of action was stated, that the printed certificate of insurance was clear and unambiguous and must be enforced, that neither Bankers nor Perillo waived the policy provision and that Bankers could not unilaterally waive a contract provision which benefitted plaintiff.

The trial court held that as a matter of law plaintiff had failed to state a cause of action because Bankers was legally responsible for the full typewritten coverage amount and also held “alternatively” that the complaint was subject to a motion for involuntary dismissal because Warner’s affidavit was unrebutted and therefore conclusive of the fact that “Bankers intended to be bound by the full benefit amount.” Having found that no cause of action existed, the court also denied plaintiff’s motion for class certification. We reverse.

Addressing first plaintiff’s contention regarding the hybrid motion, we note that such a procedure was expressly disapproved by oür supreme court in Janes v. First Federal Savings & Loan Association (1974), 57 Ill. 2d 398, 312 N.E.2d 605. While Janes involved a motion under section 45, combined with a motion for summary judgment, the same reasoning is applicable here. In Janes, the court stated that to combine an inquiry into whether a pleading is sufficient to state a cause of action (section 45) with an examination which almost necessarily assumes that a cause of action has been stated is likely to confuse both the parties and the court. Defendants should have first challenged the legal sufficiency of the complaint, and only when a legally sufficient cause of action had been stated should the court have entertained the motion based on affidavits. (57 Ill. 2d 398, 406; see also Buchalo v. Country Mutual Insurance Co. (1980), 83 Ill. App. 3d 1040, 1044, 404 N.E.2d 473; appeal denied (1980), 81 Ill. 2d 590; Denton Enterprises, Inc. v. Illinois State Toll Highway Authority (1979), 77 Ill. App. 3d 495, 497-98, 396 N.E.2d 34, appeal denied (1980), 79 Ill. 2d 625.) Nonetheless, for the sake of expediency and because the appellate court in Janes had reached a determination as to whether a cause of action was stated, the supreme court declined to remand the case for proceedings conforming with the views expressed therein. Similarly, since we have determined that a cause of action was stated in the instant case, we will also consider the motion and evidence presented pursuant to section 48.

The trial court’s finding that no cause of action was stated as a matter of law was based upon two rules of contract construction, the first being that the typed portion of a document prevails over a printed one (citing Lambos v. Lambos (1972), 9 Ill. App. 3d 530, 292 N.E.2d 587, appeal denied (1973), 53 Ill. 2d 608), and the second, pertaining to life insurance cases, that where two inconsistent provisions appear courts have consistently upheld that provision which is most favorable to the insured. (Stramaglia v. Conservative Life Insurance Co. (1943), 319 Ill. App. 20, 48 N.E.2d 719.) In addition, the court cited Hooker v. Farmers Mutual Reinsurance Co. (1940), 304 Ill. App. 230, 26 N.E.2d 146, for the proposition that an insurer can waive a condition on stipulation made in its own favor, and an agent clothed with the power of soliciting insurance, delivering policies and collecting premiums has the power to waive policy conditions. Lastly, the court expressed its belief that Bankers would be bound by the higher amount “particularly where it would be unjust, inequitable or unconscionable to allow Bankers to interpose the $10,000 limitation.”

While we do not disagree with any of the above propositions, we find that they do not apply to the particular facts of this case to defeat even the possibility of stating a cause of action as a matter of law. In Lambos, the court applied the law of contracts to construe a land trust agreement. Unlike the instant case, neither party in Lambos had drafted the printed form and the parties together made typewritten modifications. The court there expressly stated that the typed portion of the document that manifested agreement between the parties must prevail over the printed portion. (9 Ill. App. 3d 530, 534.) Here, the certificate in question was drafted by Bankers and it is unclear from the pleadings who, other than an unnamed agent of Perillo, actually made the typewritten modifications. Thus, the clear manifestation of agreement between the parties which was present in Lambos is lacking in the case now before us.

The trial court apparently accepted defendants’ argument that in the event of ambiguity between policy provisions, a construction “in favor of the insured” must be interpreted consistently to maximize coverage. This case presents an unusual situation, however, in that it is the defendant rather than plaintiff-insured who seeks to be bound by the higher amount. We are mindful that our inquiry is limited to accepting all well-pleaded facts and reasonable inferences that can be drawn therefrom and determining whether plaintiff has stated a cause of action. The trial court’s decision to grant defendants’ motion to dismiss may only be sustained if no set of facts as pleaded by plaintiff could conceivably state a cause of action. (Browder v. Hanley Dawson Cadillac Co. (1978), 62 Ill. App. 3d 623, 629, 379 N.E.2d 1206.) We believe that plaintiff could conceivably state a cause of action under the facts as pleaded. We also find the trial court’s reliance on Hooker v. Farmers Mutual Reinsurance Co. (1940), 304 Ill. App. 230, to have been misplaced. Hooker involved a forfeiture provision in a life insurance policy. The trial court granted a directed verdict for defendant and the appellate court reversed and remanded for a new trial. While noting that an agent may waive policy provisions made in the insurer’s favor in some instances, the court also realized that such authority depended on the conduct of the agent towards the insured and that the very question of agency in a given case is one of fact. (304 Ill. App. 230, 234.) Similarly, the Browder case involved an automobile dealer who sold credit life insurance, establishing the same interrelationship between the parties as in the instant case. In Browder, the court held that whether a broker was an agent for the insured, the insurer, or both, was not a question of law which could be determined solely from the pleadings, but rather a question of fact which could be determined only after a full hearing. (62 Ill. App. 3d 623, 629-30.) In light of the foregoing, we hold that defendant’s motion based on the pleadings was improperly granted. We will therefore proceed to a factual determination pursuant to section 48.

The trial court determined that, in the event a cause of action was stated as a matter of law, the complaint was subject to a motion for involuntary dismissal because Warner’s affidavit was “unrebutted” and from it the court could conclude that Bankerts “intended to honor and be bound by the full benefit amount.”

It is well settled that the burden of proving waiver is on the party claiming it and that the waiver must be proven by clear, precise and unequivocal evidence. (Spence v. Washington National Insurance Co. (1943), 320 Ill. App. 149, 50 N.E.2d 128.) It is also elementary that section 48 of the Civil Practice Act provides a means of obtaining at the outset of a case a summary disposition of issues of law or easily proved issues of fact and that, while motions pursuant to this section admit facts well pleaded, they do not admit conclusions of law or conclusions unsupported by allegations of specific facts upon which such conclusions rest. A motion under this section should not be allowed if the record establishes that a genuine and material question of fact exists. Meyer v. Murray (1979), 70 Ill. App. 3d 106, 114, 387 N.E.2d 878.

The trial court based its ruling on the fact that plaintiff failed to file counteraffidavits in opposition to defendants’ motion. Such an omission is not fatal to plaintiff’s claim, however, where, as here, the court had before it other evidence presenting a material question of fact. (Meyer v. Murray (1979), 70 Ill. App. 3d 106, 114; Sierens v. Clausen (1975), 60 Ill. 2d 585, 328 N.E.2d 559.) Sierens involved a motion to dismiss pursuant to section 48 where no affidavits were filed by either party, but the court had before it defendant’s answers to interrogatories submitted by plaintiff. There, the court considered Supreme Court Rules which provide that ‘[ajnswers to interrogatories may be used in evidence to the same extent as a discovery deposition” (73 Ill. 2d R. 213(f)) and that discovery depositions may be used “for any purpose for which an affidavit may be used” (73 Ill. 2d R. 212(a)(4)), and concluded that the facts stated in defendant’s answers to the interrogatories were therefore before the trial court for its consideration when it ruled on defendant’s motion. (60 Ill. 2d 585, 588.) The trial court here also had before it defendant’s answers to inter rogatories which were filed by plaintiff and which, we believe, presented a genuine and material question of fact. Specifically, Banker’s answers and supplemental answers to interrogatories established that: the $10,000 limitation on policy benefits was first adopted on May 14, 1975, when the form was first filed by Bankers and approved by the Illinois Department of Insurance, and this limitation was not amended until April 23, 1980, a year after plaintiff’s cause of action arose; in the case of the named plaintiff, Bankers was not aware of the original loan amount, which amount determines the limits of the policy Bankers now claims to have waived; only two people, Ronald Glime and Donald J. Shepard, had authority to make or approve changes in the policy and there were no changes in the policy made prior to the amendatory endorsements on April 23, 1980. The Warner affidavit, when read in conjunction with Bankers’ answers to interrogatories, presented a genuine and material question of fact which could not be properly disposed of on a motion to dismiss. The granting of the motion to dismiss was error.

Finally, the trial court denied plaintiff’s motion for class certification because it found no sufficient cause of action upon which a class could proceed. Because we hold that a cause of action was stated, the question of class certification is to be determined by the trial court.

We therefore reverse and remand for further proceedings consistent with the views expressed herein.

Reversed and remanded.

CAMPBELL and McGLOON, JJ., concur.


source: Caselaw Access Project

author: JUSTICE GOLDBERG

license: Public Domain

text:
      In re ESTATE OF HAROLD H. GALVIN.-(Mildred Tobias, Petitioner-Appellant, v. Harold H. Galvin, Respondent-Appellee.)
    First District (1st Division)
    No. 82—0868
    Opinion filed February 7, 1983.

      Bernard W. Moltz, of Chicago, for appellant.
    Goldstine and Broida, Ltd., of Summit (Ronald J. Broida and Kenneth J. Nemec, Jr., of counsel), for appellee.
   JUSTICE GOLDBERG

delivered the opinion of the court:

After a hearing, the trial court denied the petition of Mildred To-bias (petitioner) to be appointed guardian of the estate and person of Harold Galvin (respondent). Petitioner appeals.

Petitioner called Dr. William Reotutar, a qualified physician, to testify. The doctor testified he first treated respondent in October of 1980, after respondent had been admitted to St. Anne’s Hospital. Respondent was suffering from “advanced multiple arthritis.” Also, the respondent had a “cerebral vascular accident” or stroke. The stroke left respondent with a weak right side. Respondent also had a “heart condition.” Respondent was released from the hospital after about a month.

The witness also testified that in March of 1981, respondent was again admitted to the hospital. He had suffered “small strokes” and congestive heart failure. Respondent was in the hospital for about a month. He received treatment for his heart condition and rehabilitation for the weakness of his right side. Upon his release, respondent was ambulatory with the help of a walker or “with a cane and some help.”

Respondent was readmitted to the hospital in the fall of 1981 for treatment of his heart, cerebral, and arthritic conditions. The witness diagnosed another stroke and noted that respondent was “a little bit confused at times and was a little bit agitated at times.” A psychiatric consultant observed that respondent experienced “some delusions” and “hallucinations.” Dr. Reotutar diagnosed the respondent as having “organic brain syndrome” which describes “behavioral disorder due to some degeneration or atrophy of the brain cells.” Respondent remained in the hospital for about two months. Respondent is currently under medication for his heart condition. Failure to take the medication as prescribed could endanger his life. While his heart condition is currently stable, the condition is irreversible. Similarly, organic brain syndrome is irreversible and progressive. Although the doctor did not know how respondent handled his financial affairs, he believed respondent was disabled and unable to manage his affairs. On cross-examination the doctor testified that the respondent had made some recent improvement. He stated the respondent was “more oriented and more realistic.”

Under questioning by the trial judge, respondent testified he owns the three-flat building in which he lives. He occupies the basement apartment with two men, John and Mike. They do not pay rent but respondent does collect rent from the other two apartments. Respondent handles his own financial affairs and has a checking account which currently has a balance of $350. Respondent receives social security of about $550 per month. Respondent did not believe he had a heart condition but he continues to take the medication prescribed by the doctor.

Under adverse examination by counsel for petitioner, the respondent testified he never had a checking account, he invented the snowmobile, at one time he had a pet black widow spider, and he could produce fire by pointing his finger. He also testified that John and Mike sometimes prepare his meals but he can and sometimes does prepare his own meals. He stated he could shop by himself and go to the laundromat with use of his walker and pulling a shopping cart. He testified he was able to take care of himself and did not want a guardian.

During the examination of respondent, the trial judge interrupted the proceedings and stated, “There is no way in God’s world that I am going to adjudicate him a disabled person. He is physically suffering from some disability. *** He is eccentric *** but there is no way I am going to adjudicate him in need of a guardian. *** He lives a bizarre, strange life. I might not want to do it, but unless you can make an offer of proof that is going to show me that he does not understand the things he’s doing —. He understands. ***.”

Thereafter, counsel for petitioner made an oral offer of proof that John and Mike would testify respondent had no concept of time relationship, believed he had been a co-worker with the Shah of Iran, and the men plan to move out of respondent’s apartment so that respondent would be left alone. In addition, petitioner’s attorney offered to call Lorraine Polinski, cousin of the respondent, for examination under Supreme Court Rule 238 (87 Ill. 2d R. 238). The attorney stated this witness would testify that she had hired an attorney and that “[s]he insisted a will be drawn, naming her as executor of this estate.” The witness has recommended to respondent that he go to Oak Forest. Also, the respondent is “constantly” at petitioner’s home where she and her mother “take care of” the respondent. In addition Lorraine Polinski took the respondent outside without shoes or stockings and wearing only slippers during subzero weather. Also, “another neighbor” would testify that when respondent went to the hospital his shopping and other needs were provided by the petitioner. The trial judge refused the offer of proof and denied the petition.

In this court, petitioner contends the decision of the trial court was against the manifest weight of the evidence and petitioner was denied due process because the trial judge abused his discretion and did not allow her to a full opportunity to present her case. We disagree.

I

A trial court is mandated to adjudicate a person incompetent and appoint a guardian only when the alleged incompetent is “not fully able to manage his person or estate ***.” (Ill. Rev. Stat. 1981, ch. IKP/b, pars. 11a — 2, 11a — 3.) The pertinent statute applicable to the case before us was amended effective as of September 16, 1979. This amendment has been referred to as “a considerable refinement and development over the previous provision ***.” (In re Estate of Mackey (1980), 85 Ill. App. 3d 235, 238, 406 N.E.2d 226.) The pertinent statute provides (Ill. Rev. Stat. 1981, ch. IIOV2, pars. 11a — 2, 11a — 3):

“§ 11a — 2. ‘Disabled person’ defined. ‘Disabled person’ means a person 18 years or older who (a) because of mental deterioration or physical incapacity is not fully able to manage his person or estate, or (b) is mentally ill or developmentally disabled and who because of his mental illness or developmental disability is not fully able to manage his person or estate, or (c) because of gambling, idleness, debauchery or excessive use of intoxicants or drugs, so spends or wastes his estate as to expose himself or his family to want or suffering.”
“§ 11 — 3a. Adjudication of disability — Power to appoint guardian, (a) Upon the filing of a petition by a reputable person or by the alleged disabled person himself or on its own motion, the court may adjudge a person to be a disabled person and may appoint (1) a guardian of his person, if because of his disability he lacks sufficient understanding or capacity to make or communicate responsible decisions concerning the care of his person, or (2) a guardian of his estate, if because of his disability he is unable to manage his estate or financial affairs or (3) a guardian of his person and of his estate.
(b) Guardianship shall be utilized only as is necessary to promote the well-being of the disabled person, to protect him from neglect, exploitation, or abuse, and to encourage development of his maximum self-reliance and independence. Guardianship shall be ordered only to the extent necessitated by the individual’s actual mental, physical and adaptive limitations.”

In commenting specifically upon these portions of the pertinent statute, this court stated that the legislature made these amendments “an express part of the statutory scheme for appointed guardians for disabled adults.” (85 Ill. App. 3d 235, 238.) The Mackey court also made the following statement (85 Ill. App. 3d 235, 238):

“Under the new sections, the legislature has made it clear that although a person may be a disabled person, in the statutory sense of not being fully able to manage his person, a guardian is not therefore permissible or appropriate, if that person is capable of making and communicating responsible decisions concerning the care of his person. Thus, a person who was physically unable to care for himself, but who could direct others in such activity, would not necessarily need a guardian over his person. Similarly, a person might be a ‘disabled person’ but nevertheless not be in need of a guardian over his estate, because with help from others he is able to direct and manage his affairs and estate.”

We believe it is fundamental that the determination of whether or not respondent is incompetent is a uniquely factual question to be decided by the trial judge. We cannot envision an instance in which the observation of the witnesses, particularly the alleged incompetent, ds more critical to the final outcome of the proceedings. Because the trial judge observed the witnesses we “ ‘will not disturb [the] trial court’s finding and substitute [our] own opinion unless the holding of the trial court is manifestly against the weight of the evidence.’ ” (Greene v. City of Chicago (1978), 73 Ill. 2d 100, 110, 382 N.E.2d 1205, quoting Schulenburg v. Signatrol, Inc. (1967), 37 Ill. 2d 352, 356, 226 N.E.2d 624.)

In the case at bar, it is clear the respondent suffers from some physical disability and has some mental peculiarities. Nevertheless, with particular reference to the above citation, we cannot say the determination of the trial judge that respondent was not unable to manage his person and estate is contrary to the manifest weight of the evidence.

II

In our opinion, the action of the trial judge in interrupting the presentation of petitioner’s case is analogous to the judge simply refusing the admission of all subsequent evidence. The determination of the admission of evidence is discretionary with the trial court, and its decision will not be reversed absent a clear abuse of discretion. In re Marriage of Hofstetter (1981), 102 Ill. App. 3d 392, 396, 430 N.E.2d 79.

The trial court asked counsel for petitioner to make an offer of proof, which counsel did. The purpose of an offer of proof is to specify to the trial judge, opposing counsel and a reviewing court the substance of the evidence sought to be admitted. Daehler v. Oggoian (1979), 72 Ill. App. 3d 360, 369, 390 N.E.2d 417.

In the case at bar, it is clear that the trial judge considered the substance of the offer of proof and decided that the proposed evidence would not affect his determination of the competency of respondent. We find no abuse of discretion here by the able trial judge. Likewise we have considered the offer of proof, and we conclude that the evidence sought to be introduced would not affect the legal propriety of the finding of the trial court. Even assuming the preferred evidence to be actually proved, we find the decision by the trial court was not against the manifest weight of the evidence, and petitioner was not prejudiced by the action of the trial judge. (Canales v. Dominick’s Finer Foods, Inc. (1981), 92 Ill. App. 3d 773, 778-79, 416 N.E.2d 303.) On the contrary, our study of the record convinces us that petitioner had a complete and careful hearing of her case before an able and impartial judge. We find no deprivation of due process here and no constitutional issue.

For these reasons, the decision appealed from is affirmed.

BUCKLEY, P.J., and CAMPBELL, J., concur.


author: PRESIDING JUSTICE DOWNING

text:
    HELEN MATELIS, Plaintiff-Appellee, v. THE CITY OF CHICAGO et al., Defendants-Appellants.
    First District (2nd Division)
    No. 81—3163
    Opinion filed February 8, 1983.
    Rehearing denied March 11, 1983.

      Stanley Garber, Corporation Counsel, of Chicago (Robert R. Retke and Frank W. Nagorka, Assistant Corporation Counsel, of counsel), for appellants.
    Terrence E. Leonard, of Chicago, for appellee.
   PRESIDING JUSTICE DOWNING

delivered the opinion of the court:

Defendants, city of Chicago and William Jackson, appeal from the trial court’s denial of their post-trial motion alleging, amongst other things, error in jury instructions and the judgment entered upon the jury verdict awarding Helen Matelis, plaintiff, $111,661.75 in a personal injury action.

The testimony reveals that plaintiff, then 71 years old, was struck on the posterior of her left shoulder by a city of Chicago garbage truck, driven by William Jackson, a city CETA employee and a defendant in this case. On the morning of the accident, October 18, 1977, plaintiff was returning from Northwestern Hospital where she had an eye examination relating to a cataract condition. Plaintiff exited a Chicago Transit Authority (CTA) bus at Pulaski Avenue and proceeded with the green light within the crosswalk, southward across Chicago Avenue. According to plaintiff, she was within five feet of the opposite curb and looking straight ahead when she was struck from behind. The impact knocked plaintiff to the ground. When she looked up she saw a blue city of Chicago garbage truck. Plaintiff was taken to the hospital where it was determined that she had sustained a broken humerus. As the appeal does not involve a challenge to the sufficiency of the evidence, a detailed discussion of the damages will not be set forth.

Johnny Tucker testified on behalf of the defendants. Tucker, an assistant to William Jackson on the morning of the accident, was riding in the front passenger seat of the garbage truck. According to Tucker, the truck was facing southward on Pulaski Avenue waiting for the northbound traffic to clear in order to make a left hand turn onto Chicago Avenue. Tucker saw plaintiff crossing the street and observed she had reached a point about six to eight feet from the south curb when the truck began its turn. The truck was in first gear and moving about three to four miles per hour when plaintiff turned around (“about face”) and came back in the direction of the truck. Tucker looked away momentarily and the next thing he heard was the impact of the accident. Tucker stated that he could see from his position in the truck that plaintiff was elderly.

Plaintiff made a motion to bar Jackson from testifying for failure to respond to the pleadings or the notices for discovery in this case. The record does not indicate that a ruling was ever made on this motion. During the trial, Jackson was not called as a witness by either party. However, during closing argument, plaintiff’s counsel told the jury that they would be instructed that Jackson’s failure to testify allowed them to infer that his testimony would not have been favorable to defendants.

The instruction given by the trial court included plaintiff’s instruction number 20, based upon Illinois Pattern Jury Instruction, Civil, No. 60.01 (2d ed. 1971) (hereinafter cited as IPI Civil), and the Illinois Vehicle Code, section 11 — 1003.1 (Ill. Rev. Stat. 1981, ch. 95V2, par. 11 — 1003.1) which read as follows:

“There was in force in the State of Illinois at the time of the occurrence in question a certain statute which provided that: Every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian and shall give warning by sounding the horn when necessary and shall exercise proper precaution upon observing any obviously confused, incapacitated person.
If you decide that the parties violated the statute on the occasion in question, then you may consider that fact together with all the other facts and circumstances in evidence in determining whether or not the parties were negligent before and at the time of the occurrence.”

In addition, plaintiff’s instruction number 22, also challenged in this appeal, was given (IPI Civil No. 5.01) which read:

“If a party to this case has failed to produce a witness within their power to produce, you may infer that the testimony of the witness would be adverse to that party if you believe each of the following elements:
1. The witness was under the control of the party and could have been produced by the exercise of reasonable diligence.
2. The witness was not equally available to an adverse party.
3. A reasonably prudent person under the same or similar circumstances would have produced the witness if he believed the testimony would be favorable to them.
4. No reasonable excuse for the failure has been shown.”

The jury returned a verdict in favor of plaintiff with an award of $111,661.75. Judgment was entered on the verdict, and defendants’ post-trial motion was denied.

I

Defendants first contend that the trial court erred by submitting to the jury, over defendants’ objection, plaintiff’s instruction number 20, which was based upon section 11 — 1003.1 of the Illinois Vehicle Code (Ill. Rev. Stat. 1981, ch. 95V2, par. 11 — 1003.1), arguing that there was no evidence that plaintiff was “obviously confused” or “incapacitated.” In support of their contention, defendants rely upon Quigley v. Snoddy (1968), 102 Ill. App. 2d 232, 242 N.E.2d 775, where the court found that the “obviously confused or incapacitated” language of the proposed instruction was properly refused when the evidence showed plaintiff to be 67 years old with Parkinson’s Disease but that she did not walk across the road in other than an ordinary manner. 102 Ill. App. 2d 232, 237.

Here, the trial court initially refused to submit plaintiff’s instruction number 20 but, following further argument by counsel, allowed it, concluding that the testimony showed some degree of incapacitation and confusion by plaintiff. Our review of the record leads us to believe that the trial court’s conclusion was erroneous. The evidence shows that plaintiff was 71 years old at the time of the accident and was returning from the eye doctor. The evidence supports plaintiff’s testimony that she walked across the street until she was struck from behind. A careful reading of plaintiff’s testimony and the record clearly indicates there is no evidence of confusion or incapacitation of plaintiff sufficient to support plaintiff’s instruction number 20. Even accepting defendants’ testimony that plaintiff changed direction, which plaintiff denied, that by itself certainly cannot be considered as evidence of confusion or incapacity. If so, many, many people, by merely turning or changing direction, could be characterized as confused or incapacitated. Specific evidence is necessary of such a condition before such an instruction is justified.

During the discussion regarding plaintiff’s instruction number 20, plaintiff argued that she was entitled to have the instruction submitted even though the evidence in support of the instruction was elicited during defendants’ presentation of their defense in this case. When deciding to submit the instruction to the jury the trial court recited the well established rule of law that “every party has the right to have the law applicable to his case stated fairly, clearly, distinctly and conveyed to the jury with substantial accuracy so that it may not be misled to the prejudice of the party.” (Emphasis added.) (Sims v. Chicago Transit Authority (1955), 7 Ill. App. 2d 21, 29-30, 129 N.E.2d 23.) The instruction may be given so long as there is some evidence in the record to support the theory set out in the instruction. Wrighthouse v. Brown (1964), 52 Ill. App. 2d 191, 196, 201 N.E.2d 752.

Plaintiff tried the case on the theory that using ordinary care and free from contributory negligence, she walked across Chicago Avenue and was within five feet of the south curb when she was struck from the rear by defendants’ truck. This was the theory she argued to the jury. The trial court instructed the jury on plaintiff’s theory. Defendants’ theory, based on the testimony of their witness Tucker, was that plaintiff turned around before she reached the south curb, and caused the impact. Plaintiff presented instruction number 20 arguing that she was entitled to an instruction on defendants’ theory. The fallacy of plaintiff’s argument is that there is no evidence in the record to establish plaintiff was either confused or incapacitated and, therefore, within the class intended to be protected by the statute (see IPI Civil No. 60.01, notes and comments (2d ed. 1971)).

II

Defendants next contend that they were prejudiced by the trial court’s decision to submit plaintiff’s instruction number 22 to the jury, allowing the jury to infer that the testimony of William Jackson would have been adverse to defendants.

William Jackson, a CETA employee of the city of Chicago, was the driver of the garbage truck involved in this accident and is a party defendant. At trial, Jackson was not called as a witness. Plaintiff’s counsel explained that, as a matter of trial strategy, he elected not to call Jackson as an adverse party (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1102) because he believed the scope of cross-examination of Jackson as an adverse party would be limited. Following this assertion, and without explanation, the trial court allowed a negative inference instruction to be given over defendants’ objection.

Plaintiff’s belief that Jackson was not equally available to her due to a limited ability to impeach his testimony as an adverse party was misguided. Section 2 — 1102 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1102) provides in part:

“Upon the trial of any case any party thereto *** may be called and examined as if under cross-examination at the instance of any adverse party. The party calling for the examination is not concluded thereby but may rebut the testimony thus given by countertestimony and may impeach the witness by proof of prior inconsistent statements.”

Here, Jackson was a defendant. The record shows he was available at court during the trial to be called as an adverse party. Illinois courts have found that the failure to call a party opponent as an adverse party may give rise to a negative inference instruction against the party failing to call that adverse party. (Pawlowic v. Pearce (1965), 59 Ill. App. 2d 153, 158-59, 207 N.E.2d 155; see also Scheck v. Evanston Cab Co. (1968), 93 Ill. App. 2d 220, 225-26, 236 N.E.2d 258.) Since Jackson could have been called as an adverse party by plaintiff and was available to plaintiff, it was therefore erroneous for the trial court to allow a negative inference instruction to be given against defendants. Wetherell v. Matson (1977), 52 Ill. App. 3d 314, 318, 367 N.E.2d 472 (where it is pointed out that each element of IPI Civil No. 5.01 must be met in order for the instruction to be given).

We conclude that by giving these two erroneous instructions, defendants were not provided a fair trial. Therefore, the judgment of the circuit court of Cook County is reversed and the cause remanded for a new trial.

Reversed and remanded.

STAMOS and PERLIN, JJ., concur.

      The Comprehensive Employment and Training Act (CETA) (29 U.S.C. sec. 801 et seq. (1976)) provided job training and employment opportunities for economically disadvantaged, unemployed or underemployed persons leading to maximum employment opportunities and enhancing self-sufficiency through a flexible decentralized system of Federal, State and local programs. 29 U.S.C.A. sec. 801 (1976).

      The humerus is the long bone of the upper arm, extending from the shoulder to the elbow. Dr. William Newman testified that plaintiff sustained a displaced fracture of the neck of the left humerus near the top joint, near the shoulder.


author: PRESIDING JUSTICE McNAMARA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Petitioner-Appellee, v. DR. CLAUDE E. ROUSH, Superintendent of the Manteno Mental Health Center, et al., Respondents-Appellants.
    First District (3rd Division)
    No. 81—3124
    Opinion filed February 9, 1983.
    Tyrone C. Fahner, Attorney General, of Springfield (Paul P. Biebel, Jr., Assistant Attorney General, of counsel), for appellants.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat and Lawrence R. Stasica, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE McNAMARA

delivered the opinion of the court:

The trial court found the Manteno Mental Health Center and Dr. Claude E. Roush, Manteno’s Superintendent, guilty of indirect criminal contempt of court because a patient who had been found not guilty of aggravated kidnaping by reason of insanity (NGRI) had escaped twice from Manteno. The trial court imposed no penalty on Manteno but placed Roush on court supervision. The court also fined Roush $1,500 or in the alternative ordered him to spend three hours in Cook County jail on four consecutive Saturdays rendering counsel-ling or other services prescribed by the jail director. On appeal respondents contend that they were not proved guilty of indirect contempt beyond a reasonable doubt. Roush also contends that the fine of $1,500 was improper because he was not afforded a jury trial nor did he waive his right to a jury trial.

The trial court issued an additional order mandating Manteno and Roush to impose certain specific restrictions on the activities of all NGRI patients at Manteno. That order was the subject of a separate appeal and this court held that the trial court erred in assuming jurisdiction of the matter and reversed the order. People v. Roush (1982), 111 Ill. App. 3d 618.

The facts upon which the contempt proceedings were brought are not in dispute. Gary McConnell, an NGRI patient, escaped twice from Manteno in a two-month period. Both times he was apprehended by Lansing policemen near the home of the alleged victim of the kidnaping. When McConnell first arrived at Manteno, he was placed in Singer 2 Ward, the most secure ward in this medium security facility. This ward had windows with security screens on them. When given a ground pass to visit with his parents, he escaped. Upon his apprehension and return Manteno, the psychiatric review panel unsuccessfully recommended transferring McConnell to Chester Mental Health Center, a maximum security institution to which McConnell had once been committed. McConnell was placed again in Singer 2 Ward. While there, McConnell was “exceptionally well-mannered” and upon recommendation of the review panel, he was transferred to Cullen 1 Ward. This ward was less secure and had no screens on the window. Four weeks later, he escaped through his window.

Manteno had an average daily population of over 700 patients. In a 21/a-year period, there were 823 unauthorized absences, but 578 of those absences were caused by voluntary admittees. An unauthorized absence meant that a patient was at a place other than that which he was authorized to be. Nearly 90% of the unauthorized absentees were returned from the immediate area. Among NGRI patients, there were 32 unauthorized absentees in the 21/2-year period, with two such patients not returning.

Roush described the escape rate among NGRI patients at Manteno as a “large and alarming figure.” Respondents attempted to correct this problem by hiring additional security guards, attempting to purchase security screens, and seeking to transfer NGRI patients to Chester. Roush also made administrative efforts to secure a change in Chester’s admission criteria regarding NGRI patients.

In the rule to show cause why they should not be held in contempt of court, respondents were charged with impeding the orderly administration of justice under the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 2—4) because of their failure to contain McConnell. After the institution of the contempt proceedings, security screens were installed in Cullen 1 Ward. After respondents were found guilty of contempt, they filed a petition for reconsideration stating that new policies regarding NGRI patients had been instituted. The number of escapes had been reduced drastically and one NGRI patient had been transferred to Chester. The trial court denied the petition for reconsideration.

Respondents contend that despite McConnell’s two escapes, the trial court erred in finding them guilty of indirect criminal contempt of court. They correctly assert that the State had the burden of proving them guilty beyond a reasonable doubt. See People v. Edwards (1979), 69 Ill. App. 3d 626, 387 N.E.2d 969.

Indirect criminal contempt of court is generally defined as conduct outside the presence of the court calculated to embarrass, hinder or obstruct a court in the administration of justice or to lessen its authority or dignity, thereby bringing the administration of law into disrepute. (People v. Edwards.) Only contempt performed wilfully can constitute indirect criminal contempt. (People v. Witherspoon (1977), 52 Ill. App. 3d 151, 367 N.E.2d 313.) This intent may be either proved affirmatively or inferred from proof of the surrounding circumstances and the character of the action of the respondent. (People ex rel. Kunce v. Hogan (1977), 67 Ill. 2d 55, 364 N.E.2d 50.) Whether proved directly or by reasonable inference, intent must be present.

Under the present facts and the foregoing criteria, we fail to see how respondents’ action or inaction evidence any intent to impede the orderly administration of justice. The circumstances of McConnel’s escapes demonstrate mistakes of professional judgment, the existence of serious security problems at Manteno, and possibly incompetency on the part of persons responsible. Nevertheless, they do not support directly or indirectly a finding of intent to show disrespect for the court or to hinder the administration of justice. Therefore, the finding of criminal contempt against respondents must be vacated.

In view of our holding, it is unnecessary to address the error in the imposition of Dr. Roush’s fine.

For the reasons stated, the judgment of the circuit court of Cook County is vacated.

Judgment vacated.

McGILLICUDDY and RIZZI, JJ., concur.


author: JUSTICE HOPF

text:
    DEERPATH INVESTMENT, INC., Plaintiff-Appellee, v. ALAN J. BARACK, Indiv. and d/b/a Westlake Optical, Inc., Defendant-Appellant.
    Second District
    No. 82—281
    Opinion filed February 2, 1983.
    Howard R. Teegen, of Soffietti, Johnson, D’Isa & Teegen, of Fox Lake, for appellant.
    Michael W. Klobnak, of Gardner, Carton & Douglas, of Libertyville, for appellee.
   JUSTICE HOPF

delivered the opinion of the court:

Defendant Alan J. Barack appeals from an order of the circuit court of Lake County, Illinois, that found him personally liable for rent due for breach of a lease. Defendant contends that because he signed the lease in a representative capacity on behalf of his corporation he was not personally liable on the lease. After a bench trial, the trial court entered judgment for rent as to defendant’s corporation and reserved ruling on whether or not defendant would be liable individually. Later, after the filing of briefs and oral arguments, the trial court entered judgment against defendant individually. Defendant appeals.

The lease in issue identified the parties as follows:

LESSEE LESSOR
Alan J. Barack, President Westlake Medical Center
Westlake Optical, Inc. By William C Dam, M.D.

By the terms of the lease defendant rented one-half of an office suite for a period of five years. Both the lease and a four-page rider were signed by defendant Barack with “Pres.” after his name.

The plaintiffs purchased the subject premises from the original lessors. Paul Morlock, a representative of Deerpath Investment, Inc., testified that he represented the owners of the lease, who had purchased the premises on October 1, 1981. Morlock testified that soon after the purchase defendant told him that he would be unable to pay the rent, but he did not mention that the defendant’s corporation would be unable to pay the rent. Morlock testified that the defendant at no time said someone other than the corporation would pay the rent, that the question had never come up. Further evidence disclosed that all but one of the rent checks were issued by the corporation.

Defendant testified that he was the president of an Illinois corporation known as Westlake Optical, Inc., which operated a business on the premises from August 1980 until November 5, 1981. He abandoned the premises because he was unable to pay the bills the business had incurred. He admitted he had paid no rent for four months.

Defendant testified that he was the promoter of the corporation known as Westlake Optical, Inc. He had discussed the formation of the corporation with his attorney prior to the execution of the lease on June 20, 1980, but the corporation had not been formed at that time. The corporation was issued a charter by the Secretary of State on August 29, 1980, and he indicated that he was the president of that corporation, Westlake Optical, Inc. He indicated that when he met with Dr. Dam and signed the lease he told Dr. Dam that an optical business would be on the premises, that the corporation was to be the party responsible on the lease and that he was not to be individually responsible. Defendant testified that he paid the first month’s rent in August of 1980 with a check drawn on an account of a corporation known as Fox Lake Optical, Inc. He took possession of the premises and all subsequent checks were drawn on the account of his new corporation, Westlake Optical, Inc. On cross-examination defendant indicated that he did not resign the lease after the corporation was formed on August 29, 1980.

Dr. Dam, who signed the lease on behalf of the Westlake Medical Center, which was the assignor of the plaintiff in this cause of action, did not testify.

The corporate minutes of Westlake Optical, Inc., reflect that the corporation ratified and adopted the subject lease on September 10, 1980.

After arguments the court indicated that it would enter judgment for $4,400 against defendant Westlake Optical, Inc., and that it would reserve rulings on whether judgment should be entered against defendant individually. After subsequent briefs and a hearing, judgment was entered against defendant individually.

Defendant first contends that the trial court erred in finding that he had signed the lease in his individual as well as his corporate or representative capacity. Because we reverse, other issues raised will not be reached.

Defendant Westlake Optical, Inc., conceded in its answer to plaintiff’s complaint that it was liable on the lease. Defendant contends that the trial court was correct in its finding that the language of the lease was ambiguous. While the record does not clearly indicate that the trial court made a finding in this regard, it did allow parol evidence of the conversations between defendant and the original lessor into evidence. Therefore we assume that the trial court considered the contract terms in issue to be ambiguous. As defendant contends, contracts can be considered ambiguous when the words used-by the parties are susceptible to being understood in more than one sense. Coney v. Rockford Life Insurance Co. (1966), 67 Ill. App. 2d 395, 399, 214 N.E.

Defendant contends that the trial court either misconstrued or disregarded his testimony. He contends he did not intend to become individually liable on the lease. It is clear that the intention of the parties controls and such intention must be gathered from the facts and circumstances shown by the evidence. (Cedar Park Cemetery Association, Inc. v. Village of Calumet Park (1947), 398 Ill. 324, 75 N.E.2d 874.) Here, the trial court allowed parol evidence in order to ascertain what the intent of the parties was. After a hearing the defendant was found personally liable. The court was faced with the question of the credibility of the witnesses, and such questions are for the trier of fact and the determination of credibility will not be set aside unless it is against the manifest weight of the evidence. (Schulenburg v. Signatrol, Inc. (1967), 37 Ill. 2d 352, 226 N.E.2d 624.) However, in the recent supreme court case of People ex rel. Brown v. Baker (1981), 88 Ill. 2d 81, 85, 430 N.E.2d 1126, it was stated:

“Where the testimony of a witness is neither contradicted, either by positive testimony or by circumstances, nor inherently improbable, and the witness has not been impeached, that testimony cannot be disregarded even by a jury. Larson v. Glos (1908), 235 Ill. 584, 587; see also Urban v. Industrial Com. (1966), 34 Ill. 2d 159, 163; Dill v. Widman (1952), 413 Ill. 448, 454.”

The testimony of Alan J. Barack to the effect that it was the intention of the parties that he would not be personally liable and that the corporation solely would be appears to be uncontradicted. It appears further that there was no impeachment of his testimony. In fact the testimony of the witness, Morlock, called on behalf of the plaintiff, appears to corroborate the testimony of the defendant. In the bystanders report he was alleged to have testified “at no time did Barack say someone other than the corporation would pay the rent.”

The defendant did sign the lease “Alan J. Barack, pres.” There is authority that words to characterize the signer which are mere descriptio personnae will not relieve the signer of personal liability. (Williams v. Miami Powder Co. (1890), 36 Ill. App. 107, 114.) In another more recent case, however, where the court found an individual personally liable on a promissory note that was labeled “proposal for an agreement” the court stated:

“It has long been the rule that an individual who signs a promissory note does not relieve himself from personal liability by affixing his corporate title to his signature absent evidence that the parties intended to hold the corporation alone liable for the debt.” (Emphasis added.) Harris v. American General Finance Corp. (1977), 54 Ill. App. 3d 835, 839, 368 N.E.2d 1099, 1103.

Here the trial court did permit parol evidence, which evidence was to the effect that the corporation alone would be liable.

It appears that Dr. Dam, representing the lessor, drew the document, and any ambiguity is to be considered most strongly against the author. (Cedar Park Cemetery Association, Inc. v. Village of Calumet Park (1947), 398 Ill. 324, 333, 75 N.E.2d 874, 879.) However, we do note that the defendant should be responsible for the authorship of his own signature.

We are of the opinion that the interpretation of the documentary evidence is an insufficient circumstance to warrant the trial court’s disregard of the unimpeached testimony of Alan J. Barack. (People ex rel. Brown v. Baker (1981), 88 Ill. 2d 81, 430 N.E.2d 1126.) We find that it was not the intention of the parties that the defendant be personally liable.

The same principles enunciated as to the personal liability of the defendant for the terms of the lease would be applicable to any contention that the defendant would have a liability as a promoter of the corporation. This was simply not their intention. H. F. Philipsborn & Co. v. Suson (1974), 59 Ill. 2d 465, 322 N.E.2d 45; Stap v. Chicago Aces Tennis Team, Inc. (1978), 63 Ill. App. 3d 23, 26, 379 N.E.2d 1298.

The finding of the trial court as to the personal liability of the defendant, Alan J. Barack, must be reversed.

Reversed.

SEIDENFELD, P.J., and REINHARD, J., concur.


text:
    BOARD OF EDUCATION OF SCHOOL DISTRICT NO. 131, KANE COUNTY, Plaintiff-Appellee, v. ILLINOIS STATE BOARD OF EDUCATION et al., Defendants-Appellants.
    Second District
    No. 82—256
    Opinion filed February 2, 1983.

      Wayne Schwartzman, of Hirsh & Schwartzmann, P.C., of Chicago, for appellants.
    Lambert M. Ochsenschlager, Wayne E Weiler, and Craig S. Mielke, all of Reid, Ochsenschlager, Murphy & Hupp, of Aurora, for appellee.
   JUSTICE HOPF

delivered the opinion of the court:

Defendant, Robert Slavin, was a tenured elementary teacher in School District No. 131, Kane County, Illinois, and was discharged by the Board of Education (board) pursuant to section 24 — 12 of the School Code (Ill. Rev. Stat. 1979, ch. 122, par. 24 — 12). After an evidentiary hearing before an administrative hearing officer, Slavin was ordered to be reinstated to his full-time teaching position. The board then sought administrative review before the trial court of Kane County. The trial court reversed the reinstatement order of the hearing officer. Slavin appeals.

Robert Slavin began teaching in 1961 and taught at Dieterich School since 1966. He was tenured and at the time in question was teaching fourth grade. Prior to receiving his letter of dismissal Slavin had received no notice of any employment deficiencies.

On March 18, 1980, the board issued a resolution dismissing Slavin. The board issued a bill of particulars that alleged seven points. Slavin was charged with: (1) being cruel to students entrusted to him; (2) causing deliberate and irreparable physical and emotional injury to students, in that he did on numerous occasions inflict unlawful corporal punishment upon four named students and, in doing so, violated School Board Policy No. 5.06 and 5.07; (3) having summarily expelled students from school in violation of school board policy and the Illinois School Code; (4) having been negligent; (5) having been insubordinate in not following instructions of supervisors, school board policies or laws of the State of Illinois regarding discipline of students; (6) that he was not qualified to teach, and; (7) that it would be in the best interests of the school that he be dismissed.

Policy 5.06 provides that after oral instructions and techniques have failed a teacher may “direct the pupil toward a desired location but should refrain from the use of sufficient force to severely hurt the pupil.” Under the heading of corporal punishment, board policy provides that the principal or other person designated may strike the pupil with an open hand in an area below the neck only after other types of influence have failed to gain the desired goal. A student may be spanked only with an open hand or a paddle on an area below the neck after arranging for a reliable witness to be an observer.

Dieterich School Policy 5.07 provides that a child should never be sent home without prior approval from the office. Slavin was charged with having improperly punished four students, Gary Lay, Tammy Parker, Maurice Payne and Rex Rose. Further, he was charged with having encouraged and permitted two of those students to leave the school premises during the school day without notifying his supervisors or the students’ parents.

The testimony adduced at the hearing will not be reiterated at length here, but will be discussed together with the issues on appeal.

Slavin’s contention on appeal is that the trial court’s finding was contrary to the manifest weight of the evidence. (Werner v. Community Unit School Dist. No. 4 (1963), 40 Ill. App. 2d 491, 495, 190 N.E.2d 184, 186.) He contends that the teacher’s tenure law acts as a shield from his being dismissed for trivial, political, capricious or arbitrary causes. (Kallas v. Board of Education (1973), 15 Ill. App. 3d 450, 304 N.E.2d 527.) In the case at bar the board made a determination that Slavin’s conduct was irremediable and he should be dismissed without written warning. Subsequently a hearing officer was appointed as required by statute. (Ill. Rev. Stat. 1979, ch. 122, par. 24 — 12.) The hearing officer determined that Slavin’s cause for discharge was remediable and he was improperly dismissed because he had not been served with a prior written warning stating specifically that if his conduct was not changed it would result in charges being brought. It also found that he should be restored to a position similar to the one he had prior to his dismissal and that he be made whole for all employment benefits and losses suffered as a result of the dismissal.

The board appealed from the findings made by the hearing officer and the trial court reversed the hearing officer and found that Slavin was guilty of improper and illegal irremediable conduct, and no formal notice in writing need be given. The trial court made no other written findings.

The first question on appeal is whether or not cause for Slavin’s dismissal was remediable. If it was remediable, then Slavin would have been entitled to a warning under the School Code. Ill. Rev. Stat. 1979, ch. 122, par. 24 — 12.

The test for determining whether a cause for dismissal is remediable was set forth in Gilliland v. Board of Education (1977), 67 Ill. 2d 143, 153, 365 N.E.2d 322, where the court stated:

“The board’s findings are not, of course, immune from judicial review. The court function, however, is limited, and does not permit substitution of the court’s judgment for that of the board. Rather, the board’s findings must be sustained unless those findings are contrary to the manifest weight of the evidence. [Citations.] The test in determining whether a cause for dismissal is irremediable is whether damage has been done to the students, faculty or school, and whether the conduct resulting in that damage could have been corrected had the teacher’s superiors warned her. [Citation.]” (Emphasis added.) (Accord, Grissom v. Board of Education (1979), 75 Ill. 2d 314, 322, 388 N.E.2d 398; Aulwurm v. Board of Education (1977), 67 Ill. 2d 434, 442, 367 N.E.2d 1337.)

Gilliland contended, as does Slavin, that the charges against her were remediable, and she had not been given the requisite written warning. The court in Gilliland noted that the complained-of-conduct extended over a four-year period and that this, together with a combination of a number of causes, was a sufficient basis for a finding of irremediability.

It should be noted that in the case at bar the complained-of-conduct was based on excessive use of force in administering punishment and instances where a child was either allowed or told to leave the classroom without Slavin having obtained parental or school supervisor’s approval. However, it is important to note that unlike the sitúation in Gilliland v. Board of Education (1977), 67 Ill. 2d 143, 365 N.E.2d 322, the complained-of-conduct in the case at bar first arose only approximately six weeks before Slavin’s dismissal, not over a four-year period.

The issue of remediability was also discussed in Grissom v. Board of Education (1979), 75 Ill. 2d 314, 388 N.E.2d 398. Grissom was a tenured teacher who had been dismissed by a board that found cause for discharge was irremediable. Hence, he was not given the statutory written warning. (Ill. Rev. Stat. 1979, ch. 122, par. 24 — 12.) Grissom had received six letters concerning disciplinary and teaching problems that he had in his classroom from the principal over the course of the school year. Grissom was charged with a failure or inability to maintain discipline, use of unwarranted physical force, inability or unwillingness to convey proper classroom instruction, and failure or refusal to act upon suggestions or instructions of the principal or superintendent. The supreme court noted that the charges were serious and that there was evidence to support the charges but that the board had failed to demonstrate that the damage to the students, faculty or school was of such a severe nature as to justify not giving the required warning under section 24 — 12 of the School Code (Ill. Rev. Stat. 1973, ch. 122, par. 24 — 12). Therefore the supreme court reversed this cause, stating that plaintiff’s problems had arisen only after the academic year had started and he should have been entitled to a warning in writing so he could correct his deficiencies. The court distinguished Gilliland v. Board of Education (1977), 67 Ill. 2d 143, 365 N.E.2d 322, by stating that it involved a problem with a teacher over a period of years and the teacher therefore had more time to correct her problems.

The facts of Grissom v. Board of Education (1979), 75 Ill. 2d 314, 388 N.E.2d 398, are quite similar to the case at bar, though they involved instances of corporal punishment and actual striking of students. Grissom admitted to certain acts of corporal punishment and testified that he struck students with a meterstick, held a student around his neck, spanked a student twice and slapped a student. An important similarity between Grissom and the case at bar concerns the time that the teacher had to work out the problem that he had. In both cases the teachers’ problems arose in the same academic year in which they were dismissed. In Slavin’s case the problem arose within weeks of when he was dismissed. Slavin’s situation is more similar to that discussed in Grissom than that in Gilliland.

Slavin contends that the hearing officer properly found his conduct to be remediable. As previously indicated, the test for remediability is “whether damage has been done to the students, faculty or school, and whether the conduct resulting in that damage could have been corrected had the teacher’s superiors warned [him].” Gilliland v. Board of Education (1977), 67 Ill. 2d 143, 153, 365 N.E.2d 322.

Considering the first point in this test the question becomes whether damage has been done to the students. Assuming arguendo that Slavin’s conduct constituted corporal punishment because it was excessive, it could be argued that once a student has been the victim of corporal punishment the damage to that student has been done. (Fender v. School District No. 25 (1976), 37 Ill. App. 3d 736, 742, 347 N.E.2d 270.) On the other hand, in the case at bar, corporal punishment is specifically allowed by the school board rules. If it is allowed by the rules it is therefore not always irremediable conduct. Damage to the faculty or the school is even less easily measured under the above test.

The next question is whether the conduct could have been corrected had Slavin’s superior warned him. We believe that this is a strong possibility. On January 22, 1980, just prior to the first instance of corporal punishment and dismissal of a student, Slavin’s teaching performance was reviewed and apparently found to be satisfactory. The record reveals that Slavin’s misconduct occurred over a period of time of approximately six weeks. In light of this, and the fact that Slavin was responsive to instructions regarding punishment from the children’s parents and from his superiors, we believe that his conduct could have been corrected had he been warned of the problem.

In a case that did not involve corporal punishment but which did discuss when a cause is irremediable, the court stated:

“Causes, remediable when considered alone, will be deemed irremediable where combined with other remediable causes if continued over a long period of time during which the teacher refuses or fails to remedy them. [Citations.] Accordingly, where no statutory warning has been given the evidence presented at the hearing on the charges must not only prove that the causes for discharge existed, but it must also be shown by competent substantial evidence that the causes were not remediable.” (Morris v. Board of Education (1981), 96 Ill. App. 3d 405, 411, 421 N.E.2d 387, 392.)

Morris therefore requires that the board prove by competent and substantial evidence that the cause for discharge is not remediable. In the case at bar the hearing officer correctly found that the board failed to meet its burden. He specifically found that Slavin’s conduct was remediable. He found that when Slavin was requested by the board not to grab Tammy by the arm anymore or to use physical force against Gary Lay he thereafter complied. No similar request was made with regard to Rex Rose. As indicated, the record shows that Slavin taught for 17 years without any record or complaint of cruelty.

On the other hand, it should be noted that Slavin’s loss of control with regard to disciplining the students in his class was not an isolated incident. Although there was testimony that the students were misbehaving at the time, it is quite possible that Slavin did use an unreasonable amount of force with the children, and he was wrong in allowing them to leave the classroom. The board contends that Slavin knew the School Code and its policy and intentionally violated that Code. Therefore they contend that they should not be required to spend weeks or months attempting to reform a teacher who wilfully violated the rules. We disagree.

The board made a finding that Slavin’s conduct was “irremediable cruelty per se,” and cited four cases in support of its finding. As the hearing officer indicated, it was not clear what was meant by the phrase “irremediable cruelty per se.” It appears that there is some indication that the use of physical force would be considered by the board to be irremediable conduct. However, where a teacher is allowed by the rules to use the hands to direct a student to his seat, it is implicit in those rules that some physical force be used. The question of when that physical force becomes cruel is far more difficult to determine.

The four cases relied upon by the board are distinguishable, in varying degrees, from the case at bar. In Fender v. School District No. 25 (1976), 37 Ill. App. 3d 736, 347 N.E.2d 270, the teacher was accused of, as previously discussed, striking students on the face and head area. Despite having been warned by the principal, the teacher continued to strike the students. In Rolando v. School Directors (1976), 44 Ill. App. 3d 658, 358 N.E.2d 945, a teacher used a cattle prod to administer electric shocks to his students over a period of a month. In Welch v. Board of Education (1977), 45 Ill. App. 3d 35, 358 N.E.2d 1364, a teacher had paddled a student twice during a 20-min-ute period. The second paddling was seen as violative of the school policy on corporal punishment. In Lowe v. Board of Education (1979),76 Ill. App. 3d 348, 395 N.E.2d 59, a teacher had frequently struck students with an instrument made out of a curtain rod and five pieces of balsa wood wrapped with masking tape. There was also evidence that the teacher had struck a student with an extension cord. Further, the court found that the teacher had not controlled her classroom and was disturbing the whole school. Her teaching was found to be deficient, and despite conferences and recommendations for improvement, she received an unsatisfactory rating in her evaluation. The court upheld her dismissal.

In the case at bar, each time Slavin used physical force it was to direct the student toward a desired location, to a desk, into line, or out into a hall. Unlike the four cases previously cited, there was no complaint Slavin had struck any students, and those cases are distinguishable.

With regard to the Tammy Parker incident, a number of witnesses, including Tammy, testified that she was singing and dancing in the classroom during a lesson. As such her misbehaving would warrant some action by the teacher. A witness for the board, Keith Carlson, testified that Slavin grabbed her and put his fingernails in her arm after he asked her to sit down and she had disregarded his request. While there is no justification for the infliction of scratch marks and making Tammy’s arm red, it is not clear that this conduct was intentional. Both Tammy Parker and Rex Rose testified that Gary Lay had disregarded Slavin’s request that he stop bothering and fighting with another student. Again, although Slavin should have used greater care in putting his hands on Gary, he was directing the student to a location after oral directions had failed. This was in accordance with section 506(c) of School Policy. Further, after Mrs. Lay requested that he not touch Gary anymore, he never did so. With regard to Rex Rose there was testimony that he received three scratch marks early in February. Slavin testified that Rose had left his seat without permission and picked up a piece of chalk or a pencil. The second incident with Rex Rose on March 7 was more serious. Rex contended that his pencil rolled under the desk behind him and that when he went to pick it up Slavin picked him up and shoved him down into his desk. However it appears that this was not intentional because, as Rex testified, he lost his balance at that time and hit his ear on the radiator and his side on the desk. Rex testified that he then started to cry and when he said he was going to go home Slavin told him to go ahead. The assistant superintendent described Rex’ injuries as a bump and a scratch behind his ear and marks or bruises on his lower rib cage. Slavin testified that Rex had just gone limp and aimed for the desk rather than choosing to sit in it.

The board relies on the testimony of Dr. Scriven, professor of education at Northern Illinois University for its contention that Slavin’s conduct was irremediable. Dr. Scriven’s testimony indicated that the damages had already been inflicted and would not be modified by giving a warning to the teacher.

Dr. Scriven’s line of reasoning has been discussed in certain court cases as well. In Welch v. Board of Education (1977), 45 Ill. App. 3d 35, 358 N.E.2d 1364, the court noted that there are two tests of remediability. The first, it was stated, was that no warning to the teacher may remedy damage to a student by the violation of known school policy. On the other hand, it declared, that if a warning was given, the teacher could have the opportunity to bring his future conduct within the parameter of the stated board policy. The Welch court followed the “damage has been done” rule. However, subsequent decisions, most notably Grissom v. Board of Education (1979), 75 Ill. 2d 314, 332, 388 N.E.2d 398, have relied strongly on the requirement that the board demonstrate the damage to the students, faculty or school was so severe that it could not have been corrected. In the case at bar, we believe the board failed to meet this test. Accordingly, we find that Slavin’s dismissal was improper. The trial court’s decision is reversed and Slavin is to be reinstated in accordance with the ruling of the administrative hearing officer.

Reversed and remanded for proceedings consistent with this opinion.

Reversed and remanded.

SEIDENFELD, P.J., and REINHARD, J., concur.


author: JUSTICE NASH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v WALTER J. BABYCH, Defendant-Appellee.
    Second District
    No. 82—414
    Opinion filed February 15, 1983.

      J. Michael Fitzsimmons, State’s Attorney, of Wheaton (Barbara A. Preiner, Assistant State’s Attorney, of counsel), for the People.
    Linda Kay Staton, of Chicago, and A.F. Mannina, of Downers Grove, for appellee.
   JUSTICE NASH

delivered the opinion of the court:

The State appeals from the finding by the circuit court of Du Page County of no probable cause after an implied-consent hearing requested by defendant, Walter J. Babych.

Defendant was arrested on November 22, 1981, for the offenses of driving while under the influence of intoxicating liquor (Ill. Rev. Stat. 1979, ch. 95%, par. 11 — 501(a)) and improper lane usage (Ill. Rev. Stat. 1979, ch. 95%, par. 11 — 709). He was taken to the police station in the village of Itasca where he refused to take a breathalyzer test when requested by the officer under the provisions of section 11 — 501.1 of the Illinois Vehicle Code (Ill. Rev. Stat. 1979, ch. 95%, par. 11 — 501.1). On April 26, 1982, a bench trial was held of the traffic offenses immediately following which the trial court conducted the implied-consent hearing requested by defendant (Ill. Rev. Stat. 1979, ch. 95%, par. 11 — 501.1(d)). By stipulation of the parties, the evidence presented at the trial was considered in the hearing. Further evidence was submitted by the State in the implied-consent hearing that defendant was given a traffic citation for driving while under the influence of intoxicating liquor, that he was advised of the “nine points” regarding his rights required by section 11 — 501.1(a) of the Code, and that defendant refused to submit to a breathalyzer test.

The trial court found defendant not guilty of driving while under the influence of intoxicating liquor and guilty of improper lane usage, imposing a fine of $25 and costs for the latter offense. After the implied-consent proceeding, the court referred to the four issues to which that hearing is limited by section 11 — 501.1(d) of the Code, stating it found that each of these elements had been proved. The court also found, however, that the sworn statement of the arresting officer required under section 11 — 501.1(d) of the Code insufficiently alleged defendant was driving while intoxicated. The court stated:

“The only problem I have with this case is with the Affidavit. That states at the time I had, at the time of the arrest, to believe the person was driving a motor vehicle in the State while under the influence, that the subject was weaving, stumbling, with a strong odor of alcoholic beverage on his breath. It sounds like he was out of the car.
I can’t connect the Affidavit with the car.
* * *
The opinion of the Court is that the Affidavit is not sufficient in this case. Ordinarily, I would hold the Defendant — a finding of guilty on the implied consent, but you have to put him in the car in the Affidavit. The car was going from lane to lane, and when the Defendant got out, he was stumbling. The subject can’t be weaving and driving the car at the same time.
There will be a finding of no probable cause on the implied consent.”

The State contends in this appeal that the trial court erred in concluding the officer’s affidavit was insufficient and in premising its finding of no probable cause on that basis. Defendant argues first that the order of the trial court is not appealable and, alternatively, that the finding of no probable cause by the trial court was correct, even though predicated upon the wrong reason, as the arresting officer lacked reasonable grounds to request defendant to take a breathalyzer test.

We consider defendant’s jurisdictional argument first and determine it is without merit. Our supreme court and this court have held that the findings entered by the circuit court in an implied-consent hearing are final and appealable. People v. Malloy (1979), 76 Ill. 2d 513, 395 N.E.2d 381; City of Rockford v. Badell (1975), 33 Ill. App. 3d 427, 337 N.E.2d 200.

The implied-consent statute provides that after an arrest for driving while under the influence of intoxicating liquor, a defendant is advised of the provisions of the implied-consent statute (Ill. Rev. Stat. 1979, ch. 95%, par. 11 — 501(a)) and requested to take a breathalyzer test. If he refuses to do so, the arresting officer files a sworn statement with the clerk of the circuit court describing the circumstances and it must include, inter alia, the statement that the “arresting officer had reasonable cause to believe the person was driving the motor vehicle within this State while under the influence of intoxicating liquor” (Ill. Rev. Stat. 1979, ch. 95%, par. 11 — 501.1(d)). Defendant is then notified by the clerk that unless he requests a hearing within 28 days, his driving privilege will be suspended; if he desires a hearing, defendant must then file a complaint in the circuit court. The statute also provides that the scope of the implied consent hearing is limited to whether defendant was arrested for driving while under the influence of intoxicating liquor; whether the officer had reasonable grounds to believe defendant was driving while under the influence; whether defendant was informed, pursuant to the statute, that his driving privilege would be suspended if he refused the test; and, whether defendant refused the test. Ill. Rev. Stat. 1979, ch. 95%, par. 11—501.1(d); People v. Malloy (1979), 76 Ill. 2d 513, 395 N.E.2d 381.

In this case, after the implied-consent hearing, the trial court found that each of the requisite elements was established by the evidence, including that the officer had reasonable grounds to believe defendant was driving while under the influence of intoxicating liquor. Clearly, the court should then have entered an order finding that the requirements of the implied-consent statute had been met. Instead, and without defendant having raised the question, the judge apparently determined the affidavit failed to sufficiently allege defendant was driving while intoxicated. The arresting officer’s sworn statement was as follows:

“REPORT AND AFFIDAVIT OF ARRESTING OFFICER
I hereby certify that I have placed the above named person under arrest, and that I had at the time of arrest reasonable grounds to believe that said person was driving a motor vehicle in this state while under the influence of intoxicating liquor in that: subject weaving, stumbling, strong odor of alcholic [sic] beverage on breath.
I further certify that said person did willfully refuse to submit to the breath analyses when requested to do so in accordance with Section 11 — 501.1 of The Illinois Vehicle Code, after being informed of the possible consequences of his or her refusal.” (Emphasis added.)

Defendant makes no effort in his brief to sustain the judgment of the trial court on the grounds the affidavit was insufficient. As defendant waived that issue by failing to raise it in the trial court before proceeding to a hearing of the merits, we ordinarily would not consider it on appeal. (See People v. Rehfeldt (1982), 103 Ill. App. 3d 368, 371, 431 N.E.2d 450.) We will do so, however, in the present case where the trial judge raised the issue sua sponte and based his ruling thereon.

Implied-consent hearings are civil proceedings. (People v. Lyden (1981), 97 Ill. App. 3d 540, 542, 423 N.E.2d 262, 263; People v. Fancher (1978), 56 Ill. App. 3d 632, 634, 371 N.E.2d 1291, 1292.) They are initiated by defendant’s complaint and proceed as other civil matters, except that the scope of a hearing may cover only the four issues to which it is limited by section 11 — 501.1(d). The sworn statement of the arresting officer filed with the circuit clerk, and the sufficiency of the statements therein, do not provide the basis for the hearing or evidence establishing the issues there presented. Nor does the statute require the arresting officer to set forth in his sworn statement the factual basis, or evidence, from which he concluded defendant was driving while intoxicated. (People v. Batchelder (1982), 107 Ill. App. 3d 81, 83, 437 N.E.2d 364, 366; see also People v. Fancher (1978), 56 Ill. App. 3d 632, 371 N.E.2d 1291; People v. Rehfeldt (1982), 103 Ill. App. 3d 368, 431 N.E.2d 450; Village of Park Forest v. Angel (1976), 37 Ill. App. 3d 746, 347 N.E.2d 278, appeal denied (1976), 63 Ill. 2d 564.) The sworn statement in the present case clearly recited the conclusion of the officer that he had reasonable grounds to believe defendant was driving a motor vehicle while under the influence of intoxicating liquor; that is all the statute requires. The evidence from which that conclusion was formed may, of course, be tested in the implied-consent hearing, as was done here. The trial court erred in disposing of the merits of the hearing because of a perceived insufficiency in the arresting officer’s sworn statement.

Defendant’s further argument that the evidence adduced at the hearing failed to support a reasonable belief on the part of the officer that defendant was driving while intoxicated is also without merit. Officer Edward Votava of the Itasca police department testified he observed defendant driving a car east on Nordic Road; that the car crossed into the west lane traversing the road from shoulder to shoulder at least twice traveling at 35 miles per hour in a 25-mile-per-hour zone; and, that defendant weaved down the road, stopping in the west lane at a stop sign, and drove into the oncoming traffic lane after turning onto Rohlwing Road. The officer then stopped defendant and asked him to step out of the car and show his drivers license. Defendant stumbled and staggered while walking, his speech was slurred and the officer noted a strong odor of alcohol about him. The officer testified it was his opinion, based upon his experience, that defendant was intoxicated.

Defendant testified he had three drinks during the evening at a banquet and was not intoxicated when stopped by the officer. He attributed his speech difficulties to a chipped tooth and denied traveling from shoulder to shoulder. A passenger in defendant’s car also testified she and defendant had some drinks, but neither was intoxicated. She noticed nothing unusual about defendant’s driving and stated he had stopped in the proper traffic lane.

After hearing the testimony of these witnesses the trial court found, inter alia, that the officer had reasonable grounds to believe defendant was driving while under the influence of intoxicating liquor. We cannot conclude that determination was contrary to the manifest weight of the evidence. People v. Powell (1982), 107 Ill. App. 3d 418, 437 N.E.2d 1258.

Accordingly, the finding of the trial court that the requirements of section 11 — 501.1(d) of the Illinois Vehicle Code were not met is vacated and the cause remanded with directions that an order finding reasonable grounds be entered.

Reversed and remanded.

SEIDENFELD, P.J., and LINDBERG, J., concur.

       While we agree with the Third District of this court in People v. Batchelder that the statute does not require the setting forth of the underlying facts and circumstances upon which the officer’s conclusion is based, we do not agree with the further analysis in that case finding that the requirements of the statute do not comport with the constitution. As that issue was not addressed by the parties in this appeal and is not necessary to its disposition, we will not discuss it further.