text:
    BERLE F. CASTEEL, Plaintiff-Appellant, v. DOUGLAS SMITH and DON SMITH, Defendants and Third-Party Plaintiffs-Appellees.—(Charles Binder, Third-Party Defendant.)
    Fourth District
    Nos. 4—82—0114, 4—82—0136 cons.
    Opinion filed October 20, 1982.

      John C. Taylor, of Hendrix, Lierman & Taylor Law Office, P.C., of Champaign, for Berle E Casteel.
    Brent D. Holmes, of Harlan Heller, Ltd., of Mattoon, for Douglas Smith and Don Smith.
    Charles C. Hughes, of Welsh, Kehart, Shafter & Hughes, P.C., of Decatur, for Charles Binder.
   JUSTICE MILLS

delivered the opinion of the court:

Snowmobiles.

What standard applies?

Ordinary negligence, or something higher?

Ordinary negligence.

We reverse and remand.

Casteel brought suit against Douglas and Don Smith for injuries he received in a snowmobile accident. The Smiths in turn brought a third-party suit against Binder, alleging that Casteel’s injuries were the result of Binder’s negligent behavior. The circuit court granted a motion by the Smiths for summary judgment against Casteel and also granted a motion by Binder for summary judgment against the Smiths. Casteel and the Smiths appeal.

On a Sunday afternoon in March 1978, Casteel joined a group of high-school-age youths who were riding their snowmobiles on a nearby frozen pond. Already at the pond, Binder and Douglas Smith, along with other snowmobilers, were using the steep bank of the pond’s dam as a ramp from which they were launching their snowmobiles up into the air and out onto the pond’s frozen surface. The snowmobilers would begin their ride at the bottom of the dam’s bank, ride up the side of the bank at speeds in excess of 30 miles per hour, and upon reaching the crest of the bank, fly about three to four feet into the air for approximately 10 to 15 feet, and land on the ice-covered pond. Before each rider began his jump, another rider stationed at the crest of the dam’s bank would motion to the rider at the bottom when the pond’s surface was clear of other snowmobilers.

In the sequence of events that led to the present suit, Binder was stationed at the crest of the dam. He motioned to the next rider— Douglas Smith — that the pond’s surface was clear. Smith began his ascent. He was over halfway up the side of the dam when Binder noticed that Casteel was sitting on the pond’s surface directly on the spot where Smith would be landing his snowmobile. Casteel, sitting on his snowmobile, was apparently stuck on the slick ice. The deafening roar of the snowmobile engine drowned out Binder’s attempt to warn either Casteel or Smith. Smith, unaware of Casteel stuck on the ice ahead, reached the top of the dam at a speed over 40 miles per hour. He flew out across the pond’s surface and landed directly on Casteel, causing him severe injuries.

Casteel filed suit against Douglas Smith and against Smith’s father, Don, the owner of the snowmobile Douglas was riding. The Smiths filed a third-party complaint against Binder, alleging that Binder negligently signaled Douglas to make the jump. The circuit court granted a motion by the Smiths for judgment on the pleadings. Binder appealed. This court reversed. (Casteel v. Smith (1981), 98 Ill. App. 3d 1206 (Rule 23 order).) The circuit court then granted a motion by the Smiths for summary judgment and also granted a motion by Binder for summary judgment. The trial judge stated that the allegations of ordinary negligence in Casteel’s complaint and the Smiths’ third-party complaint failed to state a cause of action.

I

The first issue before this court is whether an allegation of ordinary negligence states a cause of action where the injury occurred while the parties were engaged in recreational snowmobiling.

It does.

All of the parties to this appeal have made involved arguments urging this court to make a broad pronouncement of the state of the law in negligence actions involving sporting activities. That pronouncement is unnecessary. The legislature has already spoken with respect to the negligence standards for snowmobile activities in enacting the Snowmobile Registration and Safety Act (Ill. Rev. Stat. 1981, ch. 95½, par. 601 — 1 et seq.). Section 5 — 1(B) of the Act states that:

“It is unlawful for any person to drive or operate any snowmobile in the following ways:
* * *
B. In a careless, reckless or negligent manner.” (Ill. Rev. Stat. 1981, ch. 95½, par.. 605 — 1(B).)

Thus, ordinary negligence is a standard to which snowmobiles are statutorily held.

In Powell v. Village of Mt. Zion (1980), 88 Ill. App. 3d 406, 409, 410 N.E.2d 525, 529, this court held that “[t]he violation of an ordinance establishing the standard of care represents prima facie evidence of negligence.” (See also Ney v. Yellow Cab Co. (1952), 348 Ill. App. 161, 108 N.E.2d 508, aff’d (1954), 2 Ill. 2d 74, 117 N.E.2d 74.) It was also held that whether the defendant violated the ordinance is a question of fact and before that question can be reached, two conditions must be met. Those conditions are: first, the plaintiff must be within the class of persons the ordinance was designed to protect; and second, the plaintiff must have suffered the type of harm the ordinance was designed to prevent. Both of these conditions are met in the present case.

With regard to the first condition, section 1 — 1 of the Act states that the Act is designed to protect those “persons and property in and connected with the use, operation and equipment of snowmobiles.” (Ill. Rev. Stat. 1981, ch. 95½, par. 601 — 1.) Section 1 — 2.09 defines operate as meaning “to ride in or on *** use or control the operation of a snowmobile in any manner ***.” (Ill. Rev. Stat. 1981, ch. 95½, par. 601 — 2.09.) Section 1 — 2.10 defines the term operator as meaning “every person who operates or is in actual physical control of a snowmobile.” (Ill. Rev. Stat. 1981, ch. 95½, par. 601 — 2.10.) Casteel, as the driver of a snowmobile at the time of the accident, clearly falls within the class of persons which the statute was designed to protect.

The second condition is also met. Section 1 — 1 of the Act states in pertinent part that the Act was intended “to promote [the] safety” of the persons covered by the provisions. Personal injuries, as were suffered by Casteel, unquestionably fall within the type of harm that the promotion of snowmobile safety is designed to prevent. Therefore,'it is clear that snowmobilers do owe each other the duty of ordinary care.

The Smiths argue that the standards in the statute only apply to the general operation of snowmobiles and do not apply where the parties agreed to meet in a relatively confined area to operate their snowmobiles in a potentially dangerous manner. Their position is not supported by the language of the statute. Section 1 — 1 of the Act declares that the intent of the Act is “to promote safety for persons and property in and connected with the use, ■ operation and equipment of snowmobiles.” Section 5 — 1(B), itself, states that it is unlawful for any person to operate a snowmobile in a negligent manner. Neither of these provisions make any distinction in their application based on the nature of the use of the snowmobiles. Their language covers all snowmobile activity including the present situation.

The legislature did, however, foresee the chilling effect that the statute might have on organized sporting events and it provided exceptions for such events in the Act. For example, exceptions from the numbering provisions and from the equipment requirements of the Act are provided for snowmobiles used only on international and national competition circuits, in sections 3 — 11 and 4 — 4, respectively. (Ill. Rev. Stat. 1981, ch. 95½, pars. 603 — 11, 604 — 4.) Even more relevant to the present issue, section 5 — 5 provides exceptions from the provisions of article V — including the negligence standard of 5 — 1(B)— for special snowmobile events. The section reads in full that:

“Nothing contained in this Article [V] shall be construed to prohibit any local authority of this State from designating a special snowmobile event. In such case the provisions of this article shall not apply to areas or highways under the jurisdiction of that local authority.” (Ill. Rev. Stat. 1981, ch. 95½, par. 605-5.)

Therefore, it is clear from the plain language of the Act that while the legislature may not have intended the negligence standards to apply to organized snowmobile sporting events, it did intend the standards to apply to informal, recreational activity such as is presently before the court.

II

Next, this court must determine whether this case .contains a genuine issue of fact sufficiently material to require the reversal of the circuit court’s order granting summary judgment. In reviewing the order for summary judgment, this court must consider all of the facts revealed in the record and all of the grounds alleged by the parties in order to determine whether a genuine issue as to a material fact does still exist. (Interlake, Inc. v. Harris Trust & Savings Bank (1978), 57 Ill. App. 3d 524, 373 N.E.2d 413; Strom International, Ltd. v. Spar Warehouse & Distributors, Inc. (1979), 69 Ill. App. 3d 696, 388 N.E.2d 108.) On appeal, all of the facts must be viewed in a light most favorable to the nonmoving party. (Montague v. School Board (1978), 57 Ill. App. 3d 828, 373 N.E.2d 719; Presto Manufacturing Co. v. Formetal Engineering Co. (1977), 46 Ill. App. 3d 7, 360 N.E.2d 510.) The reviewing court will reverse the order granting summary judgment if it determines that a genuine issue of material fact does exist. Rubin v. City National Bank & Trust Co. (1980), 81 Ill. App. 3d 1020, 402 N.E.2d 281; Cato v. Thompson (1980), 83 Ill. App. 3d 321, 403 N.E.2d 1239.

There are at least four issues of fact sufficiently material to require this court to reverse the circuit court:

First, there is the issue of whether Douglas Smith violated section 5 — 1(B) of the Snowmobile Registration and Safety Act.

Second, there is the issue of whether there was sufficient light at the time of the accident for Binder to see other riders on the pond’s surface, and thus for Smith to reasonably rely on Binder as a lookout.

Third, there is the issue of whether Smith was traveling too fast to make a reasonably safe jump.

Finally, there is the issue of whether Binder was keeping a close watch on the pond’s surface.

Therefore, because Casteel’s and the Smiths’ allegations of ordinary negligence do state a cause of action and because there are genuine issues of material fact remaining in this case, we find that the circuit court erred in granting the motions for summary judgment.

Reversed and remanded.

GREEN, P.J., and LEWIS, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE GREEN

license: Public Domain

text:
    RICHARD SPILLERS, Petitioner-Appellant, v. FIRST NATIONAL BANK OF ARENZVILLE, Respondent-Appellee.
    Fourth District
    No. 4—82—0156
    Opinion filed October 26, 1982.
    Law Offices of Ronald J. Kanoski, P.C., of Rushville (Ronald J. Kanoski and Scott J. Butler, of counsel), for appellant.

      Law Offices of Presney, Huffman, Kelly & Appleton, of Springfield (Robert A. Huffman, of counsel), for appellee.
   PRESIDING JUSTICE GREEN

delivered the opinion of the court:

This is the second appeal arising out of a dispute between petitioner-appellant, Richard Spillers, and the First National Bank of Arenzville (bank) over the bank’s repossession and sale of two items of collateral subject to the bank’s perfected security interest.

On March 14, 1977, petitioner borrowed $25,000 from the bank for the purchase of a 1957 Lima 54-T crane. This purchase was financed with a six-month promissory note and secured by the crane as well as steel concrete forms. When the note matured, the bank requested payment but agreed to a 30-day extension. At the end of the extension, the bank confessed judgment on the note against petitioner, and on January 27, 1978, confirmed the judgment in the amount of $27,640.95.

The bank subsequently repossessed the crane and on April 22, 1978, sold it to a construction equipment dealer named Chuck Wessel. According to Mr. A. C. Hart, president of the bank, Wessel told the bank that the crane was worth $15,000 and that Wessel would pay the bank that amount. The bank made no attempt to appraise the property, advertise it for sale, or otherwise solicit bids, except for the understanding with petitioner that he would be given notice of the sale and an opportunity to find a higher bidder.

Spillers was notified on March 7, 1978, that a bid of $15,000 for the crane had been received from Wessel and was advised that sale would take place within 10 days from his receipt of the notice. On March 22, 1978, petitioner responded with a bid from a corporation owned and controlled by him in the amount of $16,000. No other notice was given petitioner of the sale, and on April 22, 1978, the crane was sold to Wessel for $15,000. Within five days of the sale to Wessel, the crane was sold to an equipment dealer in Aledo, Illinois, named Henderson. The price Henderson paid does not appear in the record. On November 3, 1978, Henderson sold the crane to an Iowa contractor named Hall for $27,500. Hall testified that he presently had the crane for sale for $35,000 but that he wasn’t particularly interested in selling it.

After application of the sale price to the indebtedness, a deficiency of $12,640.95 still remained. The bank then proceeded to sell the steel concrete forms to reduce this amount. No notice of sale of the forms was given to petitioner. The forms were sold to a contraetor who had his forms commingled with Spillers’ forms for the sum of $6,120. Although petitioner had obtained a bid of $500 higher than the ultimate purchase price, this bid was withdrawn due to the confusion over which forms were Spillers’. The bank made no effort to segregate the forms, advertise them for sale, or seek a broker to sell them.

After these sales were made and the credits applied against the indebtedness, there still existed a deficiency of approximately $6,500. The bank garnished the sum of $1,020.73 from petitioner’s checking account to further reduce the deficiency.

On October 13, 1978, Spillers filed a petition for damages alleging the sale was commercially unreasonable and praying for damages for the bank’s failure to follow the dictates of the Uniform Commercial Code (Ill. Rev. Stat. 1977, ch. 26, par. 9 — 507(1)). Following a hearing on the petition, the trial court found that the sale of the crane and the forms was in all respects commercially reasonable.

On appeal, this court in Spillers v. First National Bank of Arenzville (1980), 81 Ill. App. 3d 199, 400 N.E.2d 1057, held that the sale of both the crane and the forms was conducted in violation of section 9 — 504(3) of the Uniform Commercial Code (Ill. Rev. Stat. 1977, ch. 26, par. 9 — 504(3)), and that such violation absolutely barred any deficiency judgment. We than remanded the case to the trial court with directions to vacate the deficiency order and to then consider Spillers’ petition for damages. We stated that those damages would be the amount, if any, by which the net amount which should have been received from the sales of the chattels exceeded the judgment and costs confirmed on January 27, 1978.

On remand, the court considered the testimony of petitioner, the father of the initial purchaser, William Wessel, and further considered the evidence deposition of Thomas Speciale, an expert witness on the value of the concrete forms.

On the issue of the value of the forms, the court considered the evidence deposition of Speciale, a salesman for Economy Forms Corporation, the company which sold the petitioner the forms at issue. Speciale stated that Spillers had paid $11,400 for the forms in 1975 and that the same forms in February of 1978 would sell for approximately $12,500. According to Speciale, if the concrete forms belonging to Spillers were in good condition, they would sell for approximately 85% of their original cost. On cross-examination, Speciale testified that if his company were to repurchase forms that they had originally sold, they would pay the average 25% of their original cost.

Petitioner, who also testified at the hearing on remand, stated that in his opinion the forms were worth what he had originally paid for them when they were repossessed and sold by the bank. He stated that this would be their retail value. Additionally, he felt that the reasonable market value of the crane was $35,000.

William Wessel, father of the initial purchaser, Chuck Wessel, related that he had been in the heavy equipment business for 15 to 20 years and was familiar with the values of construction equipment as of February 1978. Wessel stated that he had seen the crane and when asked if he had an opinion of the crane’s value, indicated that if he were buying it for resale he would value it from $18,000 to $20,000, but that if he were buying it for his own use it would probably be worth a few thousand more.

On March 11, 1982, the trial court entered an order finding that an adequate and reasonable value of the used forms was equal to or below the price that the bank had obtained, and that the reasonable value of the crane was $18,000. The court then added this $3,000 in damages ($18,000 — the crane’s market value — minus $15,000 — price obtained on resale) with the amount the bank garnished from Spillers’ checking account ($1,020.73), and concluded that Spillers’ total damages were $4,020.73. These damages were then offset against the deficiency of $6,500, which this court had barred. The court concluded that no damages were recoverable from the bank. Petitioner has appealed these findings, arguing that the trial court’s findings of value were based upon an improper market measure and that the court’s findings were against the manifest weight of the evidence.

As a preliminary matter, it has been noted by the parties that the bank garnished the sum of $1,020.73 from petitioner’s checking account prior to our order directing that the deficiency judgment be vacated. On remand, the trial court offset this sum against the amount of the deficiency and refused to order this amount returned to petitioner. Our prior decision was clear in creating an absolute bar to any deficiency remaining. The trial court erred in not requiring the bank to return this amount.

The central issue in dispute between the parties is the interpretation of section 9 — 507(1) of the Uniform Commercial Code dealing with loss to the debtor as a result of a creditor’s failure to follow the resale provisions of the Uniform Commercial Code.

The code provision under which the petition for damages was filed provides, in part:

“(1) If it is established that the secured party is not proceeding in accordance with the provisions of this Part disposition may be ordered or restrained on appropriate terms and conditions. If the disposition has occurred the debtor or any person entitled to notification or whose security interest has been made known to the secured party prior to the disposition has a right to recover from the secured party any loss caused by a failure to comply with the provisions of this Part.” Ill. Rev. Stat. 1977, ch. 26, par. 9-507(1).

At bar, the resolution of this dispute centers upon the word “loss.” It is petitioner’s contention that the loss should be measured against the property’s retail value since the property was financed at retail, readily for sale at retail, and no evidence was introduced by the secured party to establish that the wholesale value was the best value under the circumstances. It is respondent’s contention that a sale at the wholesale market is the measure to be applied and that in any event" the price obtained, whether measured against wholesale or retail value, was commercially reasonable.

Intertwined with a consideration of “loss” is the rule of section 9 — 504(3) which directs that “every aspect of the disposition including the method, manner, time, place and terms must be commercially reasonable.” (Ill. Rev. Stat. 1977, ch. 26, par. 9 — 504(3).) Since the sale must be commercially reasonable, the loss should be measured against what a commercially reasonable disposition would obtain. The measure of damages for petitioner at bar is thus the difference between the value received at the sale and what a commercially reasonable disposition would have obtained. We note that at bar we are not involved with a situation where the absence of notice has prevented the debtor from procuring other parties with higher bids. In that situation the loss is fixed by reference to the debtor’s proof that higher bids were obtainable but were not presented because of the creditor’s failure to notify the debtor of the sale. Rather, the situation at bar proceeds upon the theory that the lack of notice, coupled with the creditor’s failure to otherwise attempt to hold a sale in a commercially reasonable manner prevented a fair price from being obtained. Our inquiry at bar is thus: Was the bank required to sell at wholesale or retail to conduct a commercially reasonable resale?

The Uniform Commercial Code drafters certainly intended for the secured party to be able to dispose of collateral by flexible methods. As the Illinois Code Comment indicates, section 9 — 504(3) “removed all specific requirements of pre-Code statutory chattel security law with respect to the conduct of a sale after default under the security agreement in favor of the single broad requirement that every aspect of the sale must be commercially reasonable.” (Ill. Ann. Stat., ch. 26, par. 9 — 504(3), Illinois Code Comment, at 340 (Smith-Hurd 1974).) Moreover, the Code commentators indicate that in some situations a sale at wholesale is commercially reasonable. Respondent places much emphasis on the following comment to section 9 — 507 of the Illinois Uniform Commercial Code.

“One recognized method of disposing of repossessed collateral is for the secured party to sell the collateral to or through a dealer — a method which in the long run may realize better average returns since the secured party does not usually maintain his own facilities for making such sales. Such a method of sale fairly conducted is recognized as commercially reasonable under the second sentence of subsection (2).” Ill. Ann. Stat., ch. 26, par. 9 — 507, Uniform Commercial Code Comment, at 362 (Smith-Hurd 1974).

The cases cited by the parties support this rule. In Hemken v. First National Bank (1979), 76 Ill. App. 3d 23, 394 N.E.2d 868, a debtor brought suit against a bank and a truck dealer to recover under section 9 — 507(1) for the defendant-dealer’s failure to give notice of the sale of repossessed collateral. The evidence of value indicated that the wholesale value of the collateral (truck) was $7,150, and that the retail value was $7,500. The truck was sold at its wholesale value and defendant’s president testified that if a sale at retail were made, a $400 commission would have been charged. This commission would have offset any advantage from selling at retail. In Hemken, we affirmed the trial court’s finding that plaintiff failed to show that the price was commercially unreasonable.

The case of Cities Services Oil Co. v. Ferris (1971), 9 U.C.C. Rep. Serv. 899, likewise supports the Comment’s view. Although only a Michigan district court decision, the foregoing case has been authoritatively cited. (See White & Summers, Uniform Commercial Code sec. 26 — 11, at 1117 (2d ed. 1980); Vic Hansen & Sons, Inc. v. Crowley (1973), 57 Wis. 2d 106, 203 N.W.2d 728.) There the secured party repossessed collateral which was being sold on the wholesale market level and sold such goods on the wholesale market, though the creditor was in the business of distributing these very goods (tires, batteries, etc.) to several of its own retail outlets. The court held that the creditor’s failure to sell the collateral through its retail outlets made the sale commercially unreasonable. The court noted:

“The next objection raised by the defendants is that the sale was not commercially reasonable. The court is fully aware that the plaintiff has the right to sell at wholesale or retail. However in a case, where a secured creditor maintains retail outlets for the sale of his products, it should be fairly obvious that by selling the merchandise through the retail outlets, or to the retail outlets, they could have realized a great deal more to apply against the indebtedness due them through this method.” 9 U.C.C. Rep. Serv. 899, 902.

These cases comport with the Code’s view that absent retail markets readily available to the secured party, a sale at wholesale would normally be considered commercially reasonable since the expenses of selling on the retail market would offset any price advantages. At bar, the creditor maintained no retail outlets, and there is no indication as to what the cost of selling on the retail market would have been. Presumably these costs would include costs of storage, advertisement, and commission fees.

Other authorities cited by petitioner support the view that if collateral is financed at the retail level, then a sale at retail is required to be commercially reasonable. In California Airmotive Corp. v. Jones (6th Cir. 1969), 415 F.2d 554, a secured creditor brought suit to recover a deficiency judgment after the secured creditor repossessed and sold a Douglas DC7 airplane for $31,000 approximately 13 months after the debtor purchased it at a cost of $100,000 and made over $15,000 worth of improvements. The district court granted the secured creditor summary judgment but on appeal the Sixth Circuit held that a material issue of fact existed on the issue of whether the sale was commercially reasonable. There the court indicated that a sale of collateral at the wholesale market was not commercially reasonable since the collateral was financed on the retail market originally.

At bar, petitioner contends that he acquired both the crane and the forms on the retail market and that the sale on the wholesale market was commercially unreasonable. We disagree, however, with the reasoning of California Airmotive Corp. and believe that the proper inquiry is not at what market level the goods were financed, but rather what methods of sale the secured creditor had open to him at the time of repossession and resale.

Another consideration in deciding whether the collateral should be sold on the wholesale or retail market is whether the collateral is in a condition to be sold immediately or whether some repair or assembly is necessary. In Transport Equipment Co. v. Guaranty State Bank (10th Cir. 1975), 518 F.2d 377, the appellate court held that the trial court erred in computing damages pursuant to section 9 — 507(1) on the property’s retail value when the evidence indicated that the collateral (truck body kits) were in a disassembled condition. The court in that case also held that a party seeking to recover damages pursuant to section 9 — 507(1) of the Uniform Commercial Code has the burden of proving that the sale was commercially unreasonable.

Other authorities suggest that the wholesale-retail distinction is not helpful and that the loss to the debtor is the price that the creditor should have obtained in a commercially reasonable resale. For example, in Vic Hansen & Sons, Inc. the secured creditor, after selling an automobile for $1,595, repossessed the car and credited the debtor with the car’s wholesale value of $700. In discussing whether $700 was a commercially reasonable price, the court denied a deficiency judgment on the grounds that the secured creditor had failed to prove that he was entitled to a deficiency judgment by showing that the sale was commercially reasonable. There, the court noted:

“The plaintiff has not sufficiently established that $700 was a commercially reasonable price. There is no requirement or prohibition that the secured party sell at ‘wholesale’ or ‘retail.’ All that is required is the best possible price under the circumstances.” 57 Wis. 2d 106, 114, 203 N.W.2d 728, 733.

We believe that the inquiry should not be whether the collateral was financed at retail or wholesale, but rather the inquiry is what price should the secured creditor have obtained under all of the circumstances in view of the available markets open to him. In Hemken, the evidence indicated that a wholesale market was a commercially reasonable disposition in view of the small disparity between the retail and wholesale market values which was offset by the expenses required to sell at retail. In Cities Services and Vic Hansen & Sons, Inc., the secured party was required to sell at retail in view of the retail markets available to the secured creditor. In Transport Equipment Co., in view of the fact that a sale on the retail market was not possible because of the assembly necessary to sell on that market, the wholesale measure was appropriate.

At bar, we do not believe the petitioner has met his burden of proving that a sale at retail or to an ultimate user rather than a dealer was the best obtainable method under the circumstances. No evidence was introduced to show that the expenses of holding, storing, selling, and refurbishing the crane or the concrete forms were minimal enough to require the bank to become a retailer of the construction equipment. The bank had no retail markets available, and we do not believe it is incumbent upon a secured party to use extraordinary methods of reselling. On the other hand, we are persuaded that the evidence supports the conclusion that the bank did not attempt to obtain a fair price under the circumstances. No efforts were made to obtain an independent appraisal, to advertise, or to seek more than one bid for the crane.

As for the forms, while the bank received no independent appraisal, the bank did attempt to solicit at least three bidders in the general area. We do not believe that the bank was obligated to wait until a higher bidder appeared. The only shortcoming we have found with respect to the sale of the forms is the absence of notice to the debtor of the sale. We do not believe that the evidence otherwise demonstrates that the sale was commercially unreasonable. Petitioner presented no evidence to justify us in saying that but for the lack of notice a higher price was obtainable, and even assuming that the sale of the forms was commercially unreasonable, we do not think that the evidence supports a conclusion that the trial court’s finding that the debtor suffered no loss as a result of the sale of these forms was against the manifest weight of the evidence. In this connection, we note the first sentence of section 9 — 507(2) of the Uniform Commercial Code which indicates that “[t]he fact that a better price could have been obtained by a sale at a different time or in a different method from that selected by the secured party is not of itself sufficient to establish that the sale was not made in a commercially reasonable manner.” (Ill. Rev. Stat. 1981, ch. 26, par. 9 — 507(2).) The only evidence of the forms’ wholesale value came from Speciale and this testimony indicates that the price obtained was much larger than wholesale value. This testimony was admitted without objection, and no other proof was presented by petitioner on the forms’ wholesale value.

With respect to the crane the debtor’s “loss” under section 9— 507(1) is likewise not based upon any absence of notice. Rather, the loss to the debtor was occasioned by the commercially unreasonable sale of the crane. We do not conclude that the sale to a dealer or at a wholesale market level is prima facie commercially unreasonable. Such a conclusion would be contrary to the drafter’s belief that in the average situation a sale to a dealer “may realize better average returns since the secured party does not usually maintain his own facilities for making such sales.” (Ill. Ann. Stat., ch. 26, par. 9 — 507, Uniform Commercial Code Comment, at 362 (Smith-Hurd 1974).) This method of disposition is tempered by the fact that not all sales to dealers are commercially reasonable, but only those sales which are “fairly conducted” as indicated in the Code Comment. At bar, we believe that the evidence supports the conclusion that the sale to the dealer, Wessel, was not “fairly conducted.” Nonetheless, despite our conclusion that the sale to the dealer was commercially unreasonable, we do not believe that the trial court’s - ultimate finding, that the debtor failed to prove that this sale and the sale of the forms resulted in any loss greater than the total debt, is against the manifest weight of the evidence.

In addition to the foregoing assignments of error, petitioner has raised three other issues for our consideration.

Petitioner argues that the trial court should not have placed reliance on Speciale’s testimony taken at his evidence deposition. This testimony' was read into the record and consisted of his statement that if his company were to repurchase used forms, which he indicated were often in poor condition, it would pay only 25% of original value. Petitioner argues that what Economy Forms would pay for any set of forms under any condition under a buy-back arrangement is irrelevant. We need not consider this issue, however, since petitioner made no objection either at the evidence deposition or at the time that it was read into the record. This argument is now waived. See Tolbird v. Howard (1969), 43 Ill. 2d 357, 253 N.E.2d 444; Kinsey v. Kolber (1982), 103 Ill. App. 3d 933, 431 N.E.2d 1316.

Petitioner also argues that the trial court erred at the December 22, 1981, hearing in allowing William Wessel to testify after respondent had previously been granted a continuance under Supreme Court Rule 231(a) (87 Ill. 2d R. 231(a)) for the failure of Mr. Wessel’s son, Chuck Wessel, to appear at an earlier hearing.

At the earlier hearing, the court agreed to a continuance because of the absence of Chuck Wessel on the condition that an affidavit complying with Supreme Court Rule 231 was filed by respondent. This affidavit was never filed, and petitioner argues that William Wessel should not have been allowed to testify.

In Mann v. People (1981), 98 Ill. App. 3d 448, 424 N.E.2d 883, this court held that it was an abuse of the trial court’s discretion to grant a continuance under Supreme Court Rule 231(a) without an affidavit being filed in compliance with the rule. Likewise, at bar, the trial court did not require the affidavit to be immediately filed and did not later require the affidavit to be filed. The trial court erred in thus allowing the continuance without complying with Supreme Court Rule 231(a). Despite this error, petitioner has not suggested any prejudice and has not cited any authority for his argument that William Wessel should not have been allowed to testify as the result of the improper continuance of Chuck Wessel’s testimony. In view of the fact that the burden of proof was on petitioner to demonstrate his loss, any error in allowing Wessel to testify was to petitioner’s advantage since Wessel was called to testify on the crane’s market valúe.

Finally, petitioner argues that the president of the bank and he had an understanding that the concrete forms would not be sold unless the proceeds from the sale of the crane were insufficient. Petitioner suggests that since this was the understanding, the sale of the crane without notice was improper and the concrete forms should never have been sold. No authority is cited by petitioner for this proposition.

It is clear that any such issue has now been waived. Not only was this issue not considered in the prior appeal of this case, but our mandate was specific in remanding on the sole question of petitioner’s right to damages. It is clear that questions which are raised or could have been raised in the first direct appeal may not be considered following remand. See Serbian Eastern Orthodox Diocese for the United States of America & Canada v. Milivojevich (1979), 74 Ill. 2d 574, 387 N.E.2d 285; Cohn v. Receivables Finance Co. (1972), 7 Ill. App. 3d 869, 288 N.E.2d 894.

For the foregoing reasons, the order of the trial court refusing to require the return of the funds garnished from petitioner’s checking account is reversed and remanded with directions that the trial court direct the return of this sum. The court’s order which found that petitioner suffered no damages in excess of the total debt is affirmed.

Affirmed in part; reversed in part, and remanded with directions.

WEBBER and LEWTS, JJ., concur.


author: JUSTICE WEBBER

text:
      In re C.Y.B., a Minor.—(The People of the State of Illinois, Petitioner-Appellee, v. C.Y.B., Respondent-Appellant.)
    Fourth District
    No. 4—82—0267
    Opinion filed November 4, 1982.

      Daniel D. Yuhas and Karen Munoz, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Ronald C. Dozier, State’s Attorney, of Bloomington (Robert J. Biderman, of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE WEBBER

delivered the opinion of the court:

On February 22, 1982, respondent was found to be a minor in need of supervision and was made a ward of the court. A dispositional hearing was set for March 15, 1982. Also on February 22, 1982, the court entered a temporary or interim supervision order covering the time period between February 22 and March 15, the date set for the dispositional hearing. Among other things, the temporary or interim supervision order ordered respondent to attend school “each and every day, each and every class.” Subsequently, the State filed a rule to show cause against respondent for failure to attend school as set forth in the temporary order. The trial judge found respondent to be in contempt of court and sentenced her to four days’ imprisonment in a juvenile detention facility.

On appeal, respondent contends that the contempt finding and the sentence imposed thereon must be vacated because the order which respondent allegedly violated was void. We agree and vacate the contempt finding and the sentence imposed.

As far as we can ascertain, there is no authority within the Juvenile Court Act (Ill. Rev. Stat. 1979, ch. 37, par. 701 — 1 et seq.) which allows the type of interim or temporary supervision order entered in the instant case. The problem with the practice is that it short-circuits the procedure whereby an adjudication is made and subsequently a dispositional hearing is conducted. In the instant case, the trial court actually entered a form of a dispositional order prior to the dispositional hearing.

A continuance under, supervision available in section 4 — 7 of the Juvenile Court Act (Ill. Rev. Stat. 1979, ch. 37, par. 704 — 7) is inapplicable here since that is a separate proceeding available prior to any findings and adjudication. Section 5 — 1(4) of the Act (Ill. Rev. Stat. 1979, ch. 37, par. 705 — 1(4)) also appears inapplicable since that section provides that the court may adjourn a dispositional hearing for a reasonable time to receive reports and other evidence and, in the meantime, to enter an appropriate order releasing the minor from detention subject to supervision by the court during the period of the continuance. Here, there was no continuance, but the trial court entered a temporary order on the same date as the adjudicatory hearing. We conclude there is no provision in the Juvenile Court Act which provides for the interim order entered here and therefore the trial court’s order was void. As the contempt finding and the sentence imposed thereon were based upon a void order, the contempt finding and sentence must be vacated.

Accordingly, the contempt finding and the sentence imposed thereon are vacated.

Judgment vacated.

MILLS and TRAPP, JJ., concur.


text:
    G. KEITH CASHMAN, Plaintiff-Appellant, v. JACK P. SHINN et al., Defendants-Appellees.
    Fourth District
    No. 4—82—0094
    Opinion filed November 4, 1982.

      Robert G. Heckenkamp, of Heckenkamp & Simhauser, P.C., of Springfield, for appellant.
    Robert J. Sharfman, of Gomberg & Sharfman, Ltd., of Chicago, for appellees Jack P. Shinn and James J. Kemp, Jr.
    Tyrone C. Fahner, Attorney General, of Springfield (Imelda R. Terrazino, Assistant Attorney General, of counsel), for appellee Warren W. Wilson.
    Delmer R. Mitchell, of Schmiedeskamp, Robertson, House, Neu & Mitchell, of Quincy, and Stephen C. Sandels and Mark L. Yeager, both of McDermott, Will & Emery, of Chicago, for other appellees.
   PRESIDING JUSTICE GREEN

delivered the opinion of the court:

This case concerns a suit brought in the circuit court of Adams County by plaintiff, G. Keith Cashman, a former president and director of defendant, Quincy Peoples Savings and Loan Association (Quincy-Peoples) against that defendant, its directors, and Jack P. Shinn, James G. Kemp, Jr., Warren W. Wilson, and Timothy E. Griffin. Plaintiff sought damages for alleged tortious conduct on the part of defendants causing plaintiff to resign his positions as president and director of Quincy-Peoples. Plaintiff appeals a judgment entered by the circuit court on June 11, 1981, granting summary judgment against him as to count I of his amended complaint and dismissing count II, in bar of action for failure to state a cause of action. We affirm.

The original complaint was filed December 20, 1978, and the amended complaint was filed July 31, 1980. Count I was against Quincy-Peoples, its directors, and Shinn and Kemp. It alleged those defendants had conspired to fraudulently obtain plaintiff’s resignation, thus tortiously interfering with plaintiff’s business relationship with Quincy-Peoples. Count II alleged the foregoing defendants and Wilson and Griffin had deprived plaintiff of due process entitling him to damages under the Civil Rights Act (42 U.S.C. sec. 1983 (1976)). Each count sought both compensatory and punitive damages.

On appeal, plaintiff maintains the trial court not only erred in entering the judgments for defendants but also erred in denying his motion to reconsider. That motion asserted he had obtained new matter of significance as a result of discovery in a related Federal case which revealed documents previously unavailable to him. He contended the summary judgment should have been set aside so he could present this matter to the court. Defendants make several arguments in support of the trial court’s rulings. We deem some of their contentions sufficient to support the decision below and need not discuss others.

We consider first the ruling granting summary judgment on count I. At the time of the ruling much of the background information concerning the dispute was shown to be uncontradicted. Plaintiff was first hired by Quincy-Peoples in 1957, made vice-president in 1959 and president in 1969. For about 18 months prior to the summer of 1978, an employee of Quincy-Peoples, under plaintiffs supervision, made certain investments on behalf of the organization and borrowed funds for the investments. Claim was made that these borrowings exceeded that permissible under State and Federal requirements. On May 12, 1978, a meeting called by defendant Griffin, Commissioner of the lilinois Savings and Loan Commission, and presided over by defendant Wilson, a deputy commissioner, was held in Springfield. In addition to Wilson, Cashman, the defendant-directors and defendant Shinn, a supervisory agent for the Federal Home Loan Bank, were also present. The situation concerning the borrowings and plaintiff’s possible responsibility were discussed. After the meeting, the defendant-directors met in the hallway and agreed that plaintiff’s employment should be terminated. Only the directors were present.

The defendant-directors met again in late May or early June to discuss plaintiff’s termination and his replacement. At some time they decided to offer the post to defendant Shinn. On July 20, 1978, those directors met with Wilson and Shinn to discuss the possibility of Shinn taking the position. During the course of these discussions, defendant Kemp, a Chicago attorney, had been retained by Quincy-Peoples to advise them concerning the problems which had developed. On July 27, 1978, Shinn accepted the offer to become president of Quincy-Peoples and submitted his resignation to the Federal Home Loan Bank.

On July 31, 1978, a meeting of the Quincy-Peoples’ board of directors took place in the presence of a court reporter who transcribed the discussion. Shinn was not in attendance. Shortly after the meeting began, defendant Keller informed plaintiff that its purpose was to seek plaintiff’s resignation. Plaintiff was given a document containing a proposed termination agreement which had been drafted, and defendant Kemp explained its provisions. Keller informed plaintiff that if he chose not to execute the termination agreement and not to resign, his employment would be terminated by action of Quincy-Peoples’ board of directors.

The parties do not dispute that after the proposed termination agreement was tendered to plaintiff, the meeting was recessed. Plaintiff then telephoned Wilson and asked him if he had requested plaintiff’s resignation. Wilson said he had not. The tendered document was then executed by the parties. It provided plaintiff would be given the position of vice-chairman of Quincy-Peoples until December 31, 1978, and would receive his existing salary until that date. Thereafter plaintiff purported to repudiate the agreement and further matters of significance occurred which we discuss later.

The plaintiff correctly notes that the purpose of summary judgment procedure is not to make findings of fact but to determine whether factual issues exist. However, when the information properly before the court ruling on the motion shows that a ruling in favor of the movant would be required as a matter of law, summary judgment may be entered accordingly.

The only evidence of tortious conduct on the part of any defendant which might have induced plaintiff to enter into the resignation agreement was evidence that some of the directors told plaintiff his resignation was being requested by certain Federal and State savings and loan regulatory officials when that was not true. No evidence indicated either defendants Kemp or Shinn were party to any such statements. Accordingly for that reason alone, judgment for Kemp and Shinn as to count I was justified.

We conclude that the summary judgment as to Quincy-Peoples and its directors was also justified upon the basis of conduct by plaintiff which estopped him from recovery against them. The documents before the trial court showed plaintiff and his counsel had various discussions about the signed resignation agreement with various of the defendant-directors. Eventually the directors were informed by plaintiff on August 31, 1978, that plaintiff was repudiating the agreement because of material misstatements made by him as well as material mistakes, duress, and coercion. Subsequently, a meeting was held between the parties’ representatives on September 19, 1978. Then, on September 21, 1978, a letter was sent on behalf of Quincy-Peoples. The letter recited that representatives of the parties met as we have described, and “[a]s a result of the ‘spirit’ of [that] meeting” the directors ordered the writer to release monies previously held in abeyance. The letter then stated, “Accordingly, pursuant to the terms of an agreement entered into by and between you and [Quincy-Peoples] dated July 31,1978, the following payroll checks are enclosed.”

The above letter listed checks for the pay periods ending August 31, 1978, and September 15, 1978, in the sums of $1,728.94 and $1,690.61, respectively. The letter also listed a check in the sum of $933.24 “for final director’s fees for the months of June and July, 1978.” The evidence showed the letter contained the foregoing checks and that they were eventually accepted by plaintiff and cashed. Additionally, plaintiff received and cashed similar checks covering periods up to the first half of December 1978. Before cashing the checks, plaintiff placed a notation on his endorsement stating “partial president’s employment salary,” but he never otherwise notified Quincy-Peoples he was accepting the checks in a presumed capacity as president rather than under the termination agreement. Plaintiff thus accepted all of the salary payments he would have been entitled to under the resignation agreement except that for the last half of December 1978.

While the evidence is in dispute as to what took place between the parties on September 19, 1978, the letter of September 21, 1978, sending the checks referred to that meeting only in reference to the “spirit” in which the letter was sent. The letter made perfectly clear that the checks were being sent pursuant to the July 31, 1978, resignation agreement the terms of which are not in dispute. Plaintiff’s endorsement purporting to change the tenor of his acceptance of the checks from that in which they were sent to him could not do so. (In re Estate of Cunningham (1924), 311 Ill. 311, 142 N.E. 740; Quaintance Associates, Inc. v. PLM, Inc. (1981), 95 Ill. App. 3d 818, 420 N.E.2d 567.) Since plaintiff accepted those benefits sent to him under the resignation agreement, he was estopped to deny its validity. (28 Am. Jur. 2d Estoppel & Waiver sec. 59 (1966); see also Artnell Co. v. National Broadcasting Co. (1972), 4 Ill. App. 3d 970, 282 N.E.2d 493.) The resignation agreement contained an agreement to hold harmless the directors of Quincy-Peoples. The estoppel inures to their benefit as well as to that of Quincy-Peoples.

The major thrust of plaintiff’s claim of damage in count I was his resignation of the presidency. Even if his claim for relief was not negated for the reasons previously stated, he could not have recovered for loss of the presidency because the evidence before the court showed that he had no reasonable expectation of continued employment at the time he executed the resignation. That is a necessary element of tortious interference as alleged in count I. The other elements are (1) knowledge of the business relationship by the interferor, (2) intentional interference, and (3) resultant damage. O’Fallon Development Co. v. City of O’Fallon (1976), 43 Ill. App. 3d 348, 358, 356 N.E.2d 1293, 1301; Lord v. Melton (1980), 80 Ill. App. 3d 1057, 1060, 400 N.E.2d 547, 549.

Section 3 — 6(d) of the Illinois Savings and Loan Act states:

“(d) The board of directors shall designate and determine the management structure of the association and elect or appoint all officers. Each of the officers elected or appointed by the board of directors shall serve at the pleasure of the board of directors or pursuant to a written employment contract between the officer and the association.” (Emphasis added.) (Ill. Rev. Stat. 1979, ch. 32, par. 746(d).)

By the terms of the foregoing, plaintiff was an employee at will. He admits that Quincy-Peoples could have discharged him at any time. However, plaintiff maintains that neither the employer nor others may act improperly to obtain a resignation of an employee at will without committing a tortious interference with the employment relationship. We do not agree that plaintiff’s theory is applicable to the circumstances here.

Recent decisions have held that a cause of action may exist for tortious interference with a contract of employment at will.

In Kemper v. Worcester (1982), 106 Ill. App. 3d 121, 435 N.E.2d 827, a complaint by a former president of a national bank alleged that two directors of the bank had tortiously caused his discharge by the bank. By virtue of section 24, paragraph fifth of the National Bank Act (12 U.S.C. sec. 24, par. 5 (1976)), the plaintiff served at the pleasure of the board of directors of the bank. The trial court entered judgment on the pleadings for the defendant, but the appellate court reversed. The opinion cited a very similar case of Kozlowsky v. West-minister National Bank (1970), 6 Cal. App. 3d 593, 86 Cal. Rptr. 52, and Prosser, Torts sec. 129, at 933 (4th ed. 1971), and Restatement (Second) of Torts sec. 766, comment g (1979), for the proposition that the action may lie even though the employment alleged to have been interfered with was at will. The court noted that Prosser referred to a presumption that the employment would continue. Section 766, comment g, of the Restatement (Second) of Torts (1979) also speaks of such a presumption.

In TAD, Inc. v. Siebert (1978), 63 Ill. App. 3d 1001, 1006, 380 N.E.2d 963, 967, the court stated:

“It is also true that where there is malicious interference with ' an employment contract, it is immaterial whether it is for a fixed period or a contract terminable at will if both parties would have been willing and desirous of continuing the employment under that contract for an indefinite period of time.” (Emphasis added.)

We agree with the statement in TAD that both parties to the at-will contract must be willing and desirous of continuing it in order for the action to. lie when the contract is at will. We do not consider any presumption of continuance of the relationship to be absolute. In Kemper, the suit was against only two of the directors. The suit was at the pleading stage, and there was no showing that the plaintiff would not have retained his position in the absence of the alleged misconduct of the two directors. Similarly in Kozlowsky, the alleged misconduct was that of less than a majority of the directors and no showing was made that a majority of the directors would have voted to fire the officer in the absence of the misconduct.

Here, plaintiff admits that under the evidence, the board of directors could have fired him. The only possible showing of misconduct concerned the method in which the resignation was obtained. The evidence was conclusive that all of the directors except plaintiff himself had agreed to fire plaintiff if he did not resign. The necessary expectation for the continuation of plaintiff’s position.as president has been negated as a matter of law.

The directorship held by plaintiff was not at will but for a term that would have continued several months past his resignation. Plaintiff did not receive a salary for the position but was merely compensated for attendance at meetings. Under similar circumstances in Rodriquez de Quinonez v. Perez (1st Cir. 1979), 596 F.2d 486, the court held that a bank director had no property interest in his directorship. However, regardless of whether plaintiff had a recognized expectancy in the continuation of his directorship, the estoppel operated in favor of Quincy-Peoples and its directors. In addition, because no evidence existed as to wrongdoing by other defendants, the record showed that no material question of fact existed which, if decided in plaintiff’s favor, would support his claim as to count I. The trial court properly entered summary judgment as to that count.

The trial court also properly dismissed count II for failure to state a cause of action. The count was premised upon the defendants, while acting under color of law, depriving plaintiff of property or liberty without due process of law. (42 U.S.C. 1983 (1976).) Except as we subsequently state, the same conduct was charged as in count I. As far as any claim for his loss of the presidency was concerned, plaintiff failed to state a cause of action because, as we have stated, his service was at the will of the board of directors of Quincy-Peoples. The United States Supreme Court has held that loss of a position of employment which is not held as a matter of right does not deprive a person of liberty or property. (Perry v. Sindermann (1972), 408 U.S. 593, 33 L. Ed. 2d 570, 92 S. Ct. 2694; Board of Regents v. Roth (1972), 408 U.S. 564, 33 L. Ed. 2d 548, 92 S. Ct. 2701.) In Bishop v. Wood (1976), 426 U.S. 341, 48 L. Ed. 2d 684, 96 S. Ct. 2074, the court discussed Roth and held this same conclusion applies to the discharge of an at-will employee where there is no public disclosure of the reasons for the discharge. (426 U.S. 341, 348, 48 L. Ed. 2d 684, 692, 96 S. Ct. 2074, 2079.) No allegation was made here as to disclosure of reasons for plaintiff’s resignation. Under Rodriquez, plaintiff’s loss of directorship would also not constitute a deprivation of liberty or property.

As with count I, we need not adopt the doctrine of Rodriquez in order to justify the dismissal of count II. In order to have a cause of action under 1983 the defendant must have been acting under color of law. Only defendants Shinn, Griffin and Wilson were alleged to be public officials. No allegation was made as to any action by defendants Griffin or Wilson other than that they attended certain meetings and made statements concerning the competency.of plaintiff. No allegation was made that any of the statements were false or believed by either to be inaccurate or untrue. As to defendant Shinn, similar allegations are made as well as allegations that Shinn, while a supervisory agent of the Federal Land Bank having supervision over Quincy-Peoples, obtained information about the job of president of that institution, met secretly with its directors and agreed to serve as plaintiff’s replacement. Plaintiff also alleged that at the July 31, 1978, meeting of the board at which plaintiff signed the resignation agreement, Shinn “represented that the resignation of Plaintiff would save the Commissioner’s Office and the Federal Home Loan Bank the embarrassment of coming in and replacing Plaintiff.” No allegation was made that Shinn was then a Federal employee nor that he did not believe his statement to be true and correct.

Count II makes some contention that those acting under color of law had some obligation to hold a hearing before being a part of forcing plaintiff’s resignation. Even if they are deemed to have acted to terminate plaintiff’s private employment, there is no requirement that in doing so they would have had to grant such a hearing. In Cafeteria & Restaurant Workers Union v. McElroy (1961), 367 U.S. 886, 6 L. Ed. 2d 1230, 81 S. Ct. 1743, the court held that an individual in private employment had no due process right to a hearing before being fired even though the firing was requested by a Federal official on security grounds.

Count II failed to state a cause of action against defendants Shinn, Griffin, or Wilson as it did against the others. The court properly struck the count.

Among the documents which plaintiff learned of through discovery in the related case was an interoffice memo from defendant Wilson dated July 11, 1978. The memo indicated Wilson’s concern for the situation at Quincy-Peoples, and that he was aware of the board’s efforts to replace plaintiff. He indicated he agreed that the best interests of the Association involved a replacement of the management of the Association. Plaintiff also found a letter from the Federal Home Loan Bank asking that a completed application for a loan be filed with them. We do not see how this cast further light upon the matters which justified entry of the summary judgment. Moreover, these matters were available in the files of the other case prior to the entry of the summary judgment. The trial court could have concluded plaintiff should have obtained this information earlier. The trial court did not abuse its discretion in refusing to reconsider its order for summary judgment.

We affirm the judgment entered below.

Affirmed.

MILLS and LEWIS, JJ., concur.


text:
    MID AMERICA FIRE AND MARINE INSURANCE COMPANY, Plaintiff-Appellee, v. EDWARD A. SMITH et al., Defendants-Appellants.
    Fourth District
    No. 4—82—0216
    Opinion filed November 4, 1982.
    Victor J. Mosele, of Paul L. Pratt, P.C., of East Alton, for appellants.
    Stephen W. Thomson, of Reed, Armstrong, Gorman & Coffey, of Edwardsville, for appellee.
   PRESIDING JUSTICE GREEN

delivered the opinion of the court:

Defendants, Edward S. Smith and James D. Osborne, appeal a summary declaratory judgment entered by the circuit court of Macoupin County on March 17, 1982. The judgment declared that plaintiff, Mid America Fire and Marine Insurance Company, owes no duty to defend Osborne in an underlying suit brought by Smith against Osborne and arising from an incident of July 11, 1979, or any other suit arising from that incident. The judgment also declared plaintiff had no duty to indemnify Osborne for any judgment or settlement arising from that suit or that incident. We affirm.

The undisputed evidence before the court when ruling on plaintiff’s motion for summary judgment showed that, during an altercation between Osborne and Smith on July 11, 1979, Osborne kicked Smith in the head, causing injury to Smith.

Plaintiff’s complaint for declaratory judgment was filed on September 14, 1981, and an amended complaint was filed on October 15, 1981. After issue was drawn, plaintiff moved for summary judgment. The motion was supported by various documents, the most important of which were transcripts of defendants’ deposition testimony and copies of pleadings from the suit between defendants. In that case, Smith alleged he had been injured by Osborne’s negligent conduct. Plaintiff had issued a homeowner’s insurance policy extending various coverages to Osborne including that for liability. Of crucial importance in the case were the following provisions of the policy:

“Section 1

Liability, Coverage A

We promise to pay on behalf of an insured for damages resulting from bodily or property damage caused by an occurrence if the insured is legally obligated.

Exclusions — Section 1

Liability and Medical Payments, Coverages A & B does not apply to bodily injury or property damage:
l.Caused intentionally by or at the direction of an insured.
* * *

Definitions:

Occurrence in Section 1 means an accident, including continuance or repeated exposure to conditions which results in bodily injury or property damage.”

Plaintiff does not dispute that Osborne inflicted injuries upon Smith on July 11, 1979. Plaintiff contends, however, that the injuries did not result from an “accident” as required by the policy but rather resulted fron an intentional act of Osborne thereby excluding coverage from the consequence of the incident.

Section 57(3) of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 57(3)) stated that summary judgment “shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”

The purpose of the summary judgment procedure is “to determine whether any genuine issue of material fact exists and to summarily dispose of cases where none does exist so as to avoid congestion of trial calendars and the expense of unnecessary trials.” Loveland v. City of Lewistown (1980), 84 Ill. App. 3d 190, 192, 405 N.E.2d 453, 455.

We need not determine whether Osborne’s actions constitute an “accident” since we find, as a matter of law, that the exclusionary clause is applicable. The evidence is conclusive on this subject. Osborne testified in a deposition on file, that he intended to kick Smith, although not in the face.

Courts in other jurisdictions have determined that a similar policy exclusion applies regardless of whether the tort defendant intended the specific injury as long as that defendant intended to injure the particular victim. In Iowa Kemper Insurance Co. v. Stone (Minn. 1978), 269 N.W.2d 885, 887, the Minnesota Supreme Court stated that in a contract of liability insurance, excluding coverage for bodily injury intentionally caused by the insured, the intent required to exclude coverage is the “intent to cause bodily injury,” even if the actual injury is more severe or of a different nature than the injury intended. See also Steinmetz v. National American Insurance Co. (Ariz. App. 1978), 121 Ariz. 268, 589 P.2d 911; Butler v. Behaeghe (1976), 37 Colo. App. 282, 548 P.2d 934.

A tort defendant who is found to have intentionally struck the plaintiff is deemed to have intended the ordinary consequences of his voluntary actions. This does not contradict the holding in Smith v. Moran (1965), 61 Ill. App. 2d 157, 209 N.E.2d 18, where the court drew a distinction between an intentional act and an intentionally caused injury. There, a defendant fired a gun at one person and missed that person, hitting the tort plaintiff, Smith. The court stated it was of the opinion that the injury to Smith was not intentionally caused by the defendant but was an unintentional result of an intended act directed at another person. (61 Ill. App. 2d 157, 163, 209 N.E.2d 18, 21.) In Smith, however, unlike in the case at bar, the defendant did not intend to injure the victim in any manner. Osborne, on the other hand, specifically stated that he intended to kick Smith, . but that he did not intend to kick him in the head. Coupling the foregoing with evidence that Osborne entered a plea of guilty to a battery charge arising from the incident, we determine that the evidence is conclusive that Osborne committed an intentional act and intentionally caused Smith’s injury.

The defendants argue that the depositions and other matters before the court contain evidence creating a question of fact as to whether Osborne was so intoxicated at the time of the occurrence that he could not form the requisite intent to injure. This contention was based upon deposition testimony that Osborne had consumed very large quantities of intoxicants just prior to the episode and Osborne’s deposition testimony that he was so intoxicated then that he could not later recall some aspects of the episode. Defendants also presented an affidavit of their attorney that a toxicologist would, if present, testify that one who had consumed alcohol in the manner and of the quantity claimed by Osborne, would have impaired ability to form the requisite intent. This affidavit contained hearsay and was not in a form that could properly be considered. (73 Ill. 2d R. 191.) After the summary judgment had been entered, the defendants produced an affidavit of that toxicologist which contained a statement by the toxicologist of the same purport. This affidavit was tardily presented, and the trial court was not required to consider it.

The deposition evidence as to Osborne’s intoxication was negated by his own admission in his deposition that he was not so intoxicated that he could not have driven himself home, by his admission in that deposition that he remembered substantial parts of the episode and his statement that he intended to kick Smith.

We find that the tort defendant, Osborne, intentionally struck the tort plaintiff, Smith, and must be deemed to have intended the natural consequences of his act. Consequently, since some injury was intended, it is immaterial that the particular injury that resulted was not specifically intended. Thus the exclusionary clause of the liability policy is applicable, and plaintiff, Mid America, owed no duty to defend or indemnify Osborne.

For the reasons stated, we affirm.

Affirmed.

WEBBER and LEWIS, JJ., concur.


author: JUSTICE ALLOY

text:
    HENRY J. PRANGE et al., Plaintiffs-Appellants, v. KAMAR CONSTRUCTION CORPORATION, Defendant and Third-Party Plaintiff-Appellee.—(Frank L. Fleming, Adm’r of the Estate of Ohren Sluder, Deceased, Third-Party Defendant, Appellee.)
    Fourth District
    No. 4—82—0052
    Opinion filed October 28, 1982.

      Grady E. Holley and John L. Swartz, both of Giffin, Winning, Lindner, Newkirk, Cohen & Bodewes, P.C., of Springfield, for appellants.
    Robert E. Bradney, of Rammelkamp, Bradney, Hall, Dahman, Kuster & Collins, of Jacksonville, and Heyl, Royster, Voelker & Allen, of Springfield (Frederick P. Velde and John A. Ess, of counsel), for appellees.
   JUSTICE ALLOY

delivered the opinion of the court:

This is an appeal by plaintiffs Henry Prange and June Prange from entry of summary judgment against them in their suit against defendant Kamar Construction Corporation (hereinafter Kamar), under the Structural Work Act (Ill. Rev. Stat. 1977, ch. 48, par. 60). In the action, defendant Kamar also filed a third-party suit against Ohren Sluder, its subcontractor and plaintiff Henry Prange’s employer, who is now represented by Frank Fleming, administrator of Sluder’s estate. The trial court found there was no genuine issue of fact and that the tractor-forklift upon which Henry Prange was seated at the time of the accident was not instrumentality within the purview of the Structural Work Act (hereinafter Act). Accordingly, the court entered a summary judgment in favor of Kamar, based upon the Act’s inapplicability, and also entered summary judgment in favor of Fleming, as against Kamar, in the third-party action. The latter judgment was premised upon the court’s dismissal of the principal suit by the Pranges against Kamar. A second motion for summary judgment, filed by Fleming against Kamar and based upon an active-passive negligence theory, was denied, the court concluding a question of fact existed thereon. The Pranges appeal, arguing error in the court’s rulings and judgment.

The record reveals that on December 31, 1975, plaintiff Henry Prange was employed by Ohren Sluder in Sluder’s construction of a pole barn on a farm near Roodhouse, Illinois. Sluder was a subcontractor for defendant Kamar. At the time of the accident, Prange was operating a Massey-Ferguson tractor, equipped with a forklift device supplied by Kamar. On the day of the accident, Prange was operating the tractor-forklift at the construction site. He had a load of four or five 18-foot-long poles (six by six inches) on the forklift device and had raised them to an elevation above his head. The poles were being transported from the material pile to positions near their places of installation in the barn itself. Holes, which were to receive the poles, had been previously dug, and the four or five poles carried by Prange were the last poles to be installed.

Shortly after having picked the poles from the material pile, Prange, seeking to move them to their places of installation, encountered a muddy area. The tractor-forklift had some difficulty maneuvering in the mud, and as he attempted to move through the mud, Prange raised the forklift device, which was supporting the poles. As the forklift raised, the lift device tilted backwards, depositing all but one of the poles onto the plaintiff Prange. Each pole which rolled off the device weighed somewhere between 300 and 600 pounds. Prange sustained injuries of a severe nature as a result of the accident. The tractor-forklift was not equipped at the time of the accident with a rollover protection device, or other cage for protection of the driver from injury. Neither was it equipped with an automatic leveling device, also designed for driver safety.

Deposition evidence before the court indicated that the tractor, with attached forklift, was utilized to carry the poles from where they had been stored, at one end of the site, to their places of installation within the bam. The tractor-forklift would carry the poles down the line of previously dug holes, and workers would push one end of a pole off the forklift and into the hole. The other end was then raised and the poles secured in the ground. The poles were held horizontally across the forks of the forklift and could be raised or lowered while there, as needed, for transportation and installation.

Other evidence indicated that Kamar had purchased the tractor new and had added the forklift device, as well as a chain and boom device, later. The tractor, along with the accessories, had been purchased for use in construction of the pole barns. There was other evidence indicating that the boom and chain device could have been used to transport and install the poles. However, the boom and chain could only pick up one pole at a time, thereby rendering it much slower in the installation process.

The circuit court, on motion for summary judgment by Kamar, found that the tractor-forklift upon which Prange was seated at the time of the accident was not a “mechanical contrivance” as defined and covered by the Structural Work Act (111. Rev Stat. 1977, ch. 48, par. 60), and thereupon concluded that the Act did not cover and apply to the injuries suffered by Prange in the forklift accident. From the judgment, the Franges appeal.

Section 60 of the Act states:

“That all scaffolds, hoists, cranes, stays, ladders, supports, or other mechanical contrivances, erected or constructed by any person, firm or corporation in this State for the use in the erection, repairing, alteration, removal or painting of any house, building, bridge, viaduct, or other structure, shall be erected and constructed, placed and operated as to give proper and adequate protection to the life and limb of any person or persons employed or engaged thereon, or passing under or by the same, and in such manner as to prevent the falling of any material that may be used or deposited thereon.”

The First District, in Urman v. Walter (1981), 101 Ill. App. 3d 1085, 1090, 428 N.E.2d 1051, recently summarized the well-established rules governing Structural Work Act cases:

“The Structural Work Act is designed to protect workers engaged in extrahazardous activities from certain risks inherent in the nature of their jobs. [Citations.] Although the Act should be liberally construed [citation], it is not intended to cover all injuries that may occur on or near a construction site. [Citation.]
The elements of a cause of action under section one include the following: (1) the device involved must be one listed in the Act; (2) the device involved must be used in the construction of a building or ‘other structure’ within the Act; (3) the device must be unsafe, or not safely placed or operated (or there must be a failure to provide such a device); (4) defendants (those who are ‘in charge of’ the work) must have ‘wilfully’ violated the Act; and (5) plaintiff’s injury must be proximately caused by defendants’ violation. [Citation.]”

The principal issue in the instant case is whether the tractor-forklift operated by Prange, and upon which he was injured by the falling poles, was a “mechanical contrivance” within the meaning of section 60 of the Act. As the cases have pointed out, a decision upon whether a particular device is covered by the Act cannot be based solely on the identity of the device, apart from the actual use to which it is put in the circumstances of each ease. Rather, the decision must be based upon the use and function of a device, within the circumstances shown. (Urman v. Walter (1981), 101 Ill. App. 3d 1085, 1093 (and cases cited therein); Matthews v. Commonwealth Edison Co. (1980), 90 Ill. App. 3d 1024, 1026-27, 414 N.E.2d 147.) Although the Act is commonly known as the Scaffold Act, with due regard for its history, it is established that the Act applies to devices other than scaffolds, and to the functions which they serve in common with scaffolds. By its terms, the Act applies to “hoists, cranes, stays, ladders, supports” and “other mechanical contrivances” constructed or erected for use in the construction of certain structures. As the Urman court noted, the essential common characteristic of the specific items listed in section 60 of the Act is that they are all support devices, either for men or materials. (101 Ill. App. 3d 1085, 1090-95.) As the court in Matthews put it (90 Ill. App. 3d 1024, 1026), “The common feature of these is an artificial foundation bearing a load against gravity.” Thus, in deciding whether the tractor-forklift upon which Prange was injured was a “mechanical contrivance” within the Act, we must construe “mechanical contrivance” in connection with the specific items listed in section 60, and the common support function shared by all. If the tractor-forklift in this case was being used to perform a support function similar to that performed by the enumerated devices, then it would have to be classified as a “mechanical contrivance” within the meaning of the Act.

The defense, at the outset, argues for a narrowing of the Act. It is asserted that the Act was intended to apply only to support devices which are used to support workmen, thus to the exclusion of support devices for materials on a construction site. The defense seeks to narrow the scope of the Act to scaffold and scaffold-like devices. Matthews is cited in support of this argument and interpretation. Such a reading of the Act is much too narrow. It has recently been pointed out that Matthews’ narrow construction of the Act in this regard is not supported by any case authority and runs contrary to the express language of section 60. (Urman v. Walter (1981), 101 Ill. App. 3d 1085, 1093-94.) As the Urman court correctly noted:

“By its terms, section one provides that all ‘scaffolds, hoists, cranes, stays, ladders, supports, or other mechanical contrivances’ used in constructing, or maintaining buildings or ‘other structures’ should be erected, placed and operated so as to protect ‘persons employed or engaged thereon, or passing under or by the same, and in such manner as to prevent the falling of any material that may be used or deposited thereon.’ (Emphasis added.) Two categories of persons are thus protected, those who are actually working on the support device and those who pass by or under the same. Such persons are protected from at least two types of injury — causing possibilities, the collapse or other failure of support device (i.e., one that is not safely - erected, placed, or operated), and the falling of ‘any material’ that may be used or deposited on the device. ***.” (101 Ill. App. 3d 1085, 1091.)

A narrow reading of the Act, focusing upon workman support devices only, ignores that the primary function of hoists, cranes and stays is not as support for men, but rather for materials. Those devices are specifically enumerated in the Act. Furthermore, as the Urman quotation points out, the statutory language indicates a desire to protect workmen in, on, around and under support devices for materials on a construction site. We conclude, as did the Urman court, that the Act is intended to cover support devices used on a construction site, whether their purpose is to support workmen or materials. In so doing, we expressly reject the contrary suggestion in the Matthews case.

We turn then to the facts of the instant case to determine the purpose and use to which the tractor-forklift was being put at the time of the accident. The tractor-forklift herein was being used on the construction site to support building materials, the poles, while they were transported to their places of installation. The fact that the tractor-forklift was mobile, in design and operation, does not alter its function as a support device for materials, in both design and operation. The tractor-forklift device herein utilized served the same function on this job as a boom and hoist would have, or as a crane would have. We find that its use in the instant case brought it within the definition of the term “mechanical contrivance,” as used in the Act. See Rayfield v. Homart Development Co. (1981), 100 Ill. App. 3d 620, 427 N.E.2d 193 (traxcavator, with front bucket to lift material, found to be a “mechanical contrivance” within the Act); Burke v. Rlinois Power Co. (1978), 57 Ill. App. 3d 498, 373 N.E.2d 1354 (crane hauling material).

The defense, in urging a contrary conclusion, relies upon the Matthews case, above discussed, and upon Crafton v. Lester B. Knight & Associates, Inc. (1970), 46 Ill. 2d 533, 263 N.E.2d 817. We have previously noted our disagreement with Matthews’ finding that only scaffold-like devices, used for the support of workmen, are covered by the Act. The Crafton case, on the other hand, is distinguishable. In Crafton, an ironworker was riding on a tractor that was being used to move steel from a railroad siding to the construction site. During the move, he fell off the back of the tractor, injuring himself. The court, without analysis, found that the tractor was not constructed for use in the erection of a structure, adding also, that even if it were considered a “mechanical contrivance,” there remained a lack of proximate cause which prevented liability. (46 Ill. 2d 533, 538.) In a later case, Crafton was distinguished on the basis that injury resulted from a lurch of the tractor, rather than any failure of the support device. (McNellis v. Combustion Engineering, Inc. (1973), 13 Ill. App. 3d 733, 742, 301 N.E.2d 96.) In McNellis, an unloading operation was determined to come within the scope of the Act, and in the Illinois Supreme Court opinion, the court specifically accepted the appellate court’s distinction of Crafton. (McNellis v. Combustion Engineering Co. (1974), 58 Ill. 2d 146, 151, 317 N.E.2d 573.) In the instant case, the connection between the support device, the forklift, and the injuries was direct. It also needs emphasizing that in this case, the tractor-forklift (1) was on the construction site, not moving on and off the site to bring materials to the site; (2) was actually being used in the erection of the pole barn building, both for transporting material and for placement of material; (3) was alleged to be unsafe in that it failed to provide protection from objects which could fall from the forklift itself. Under these circumstances, and given the limitations upon Crafton in McNellis, Crafton is not controlling in this case.

Had the contractor chosen to do this job using a crane or hoist, as a support device, and the injuries resulted from a failure or omission related to their support functions, the Act would have applied clearly. Since the tractor-forklift was being utilized for a support function, and was otherwise within the Act’s requirements, we have concluded that it was a “mechanical contrivance” within the meaning of the Act.

The defense’s other argument, that Prange, as the driver, is unprotected, is not convincing. It rests upon the erroneous conclusion in Matthews that only workers who are on, or who should have been on support devices, are intended to be protected by the Act. We have previously discussed Matthews. The Act, by its terms, applies to persons “employed or engaged” upon the support devices and to those around and “under” the support devices. Prange, as the operator, is within the class of persons for whom protection was designed, and we find no sound basis for concluding that he is not to receive the Act’s protection while another worker under or beside the forklift would receive protection under the Act.

The next issue is whether a summary judgment in favor of Kamar can be sustained on an alternative basis, that being that Kamar was not a person in charge of the work so as to be liable under the Act. Kamar points to facts in the record indicating that it had no representative or worker at the site where the accident occurred. Deposition testimony indicates that Kamar had no supervision over the work of the subcontractor Sluder, and that Sluder was the sole person directing erection of the building, in all facets. Kamar asserts, that as a matter of law, based upon the record, there is no liability for it since it was not in charge of the work. We note that this argument was presented to the trial court and rejected. We, too, find it unconvincing at this point. The phrase “having charge of” has been expansively defined by Illinois courts. As the Illinois Supreme Court noted in Larson v. Commonwealth Edison Co. (1965), 33 Ill. 2d 316, 321-22, 211 N.E.2d 247:

“The term ‘having charge of is a generic term of broad import, and although it may include supervision and control, it is not confined to it. As was said of the word ‘charge’ in People v. Gould 345 Ill. 288, 323: ‘The word does not necessarily include custody, control or restraint, and its meaning must be determined by the associations and circumstances surrounding its use. “To have charge of” does not necessarily imply more than to care for or to have the care of.’ *** Rather, consistent with its beneficient purpose of preventing injury to persons employed in the extra-hazardous occupation of structural work, the thrust of the statute is not confined to those who perform, or supervise, or control, or who retain the right to supervise and control, the actual work from which the injury arises, but, to insure maximum protection, is made to extend to owners and other who have charge of the erection or alteration of any building or structure.”

Whether a party had charge of the work is usually a question of fact for the fact finder. Plaintiffs assert, and we agree, that there was a genuine question of fact as to whether defendant Kamar had charge of the work, and, therefore, summary judgment for Kamar would be unavailable on that basis. We note, from the record, that Kamar was the general contractor on this job, having hired Sluder as its subcontractor for the erection of the pole barn. Kamar supplied the materials for the job, and it also furnished the tractor, forklift attachment, and hoist attachment. It was responsible for the design of the building and it ordered and had maintenancé done on the equipment. There is also evidence raising a question as to the extent of supervisory authority retained by Kamar over its subcontractor. Construing the evidence in favor of the plaintiffs, as it must be on the summary judgment motion, we find a question of material fact present. Kamar was not entitled to summary judgment based upon a finding that it was not in charge of the work within the meaning of the Act.

The final issue concerns the summary judgment granted third-party defendant Fleming, administrator of the estate of Ohren Sluder, as against third-party plaintiff Kamar. The basis of the court’s action on the third-party complaint was the fact that it had determined to dismiss the underlying, primary action by plaintiffs Prange against defendant Kamar. The court did have before it another summary judgment motion, by Fleming against Kamar, in which Fleming asserted that judgment for it was required because Kamar, as a matter of law, on the facts, was guilty of active negligence. In its judgment order, the trial court specifically rejected that motion, expressly stating that it found the existence of a genuine issue of material fact on the question of whether Kamar’s conduct was active such as would defeat any indemnity action over against Fleming. Fleming, on appeal, seeks affirmance of the third-party action on this basis, even though the trial court’s dismissal of Kamar is to be reversed. It is again argued that summary judgment for Fleming, as against Kamar, is proper for the record shows that Kamar was the actively negligent party in Prange’s injuries. The rules in this active-passive area are easily stated, but difficult to apply.

“Indemnity is proper when there is a qualitative distinction between the conduct of the two wrongdoers. The party who is guilty of active wrongdoing will be liable to the party who is guilty of passive misconduct. [Citations.] Additionally, the fact that a person is in charge of the work and wilfully violates the Structural Work Act does not necessarily lead to the conclusion that the person is an active wrongdoer. [Citations.]” Badorski v. Commonwealth Edison Co. (1980), 89 Ill. App. 3d 494, 497, 411 N.E.2d 924.
“Where indemnification is allowed based on the active-passive distinction, the indemnitor’s conduct is usually characterized as the primary cause or active negligence whereas the indemnitee’s conduct is considered the secondary cause or passive negligence. [Citations.] The concepts of active and passive negligence are imprecise and difficult to apply. [Citations.] ‘Active’ and ‘passive’ are terms of art which must be applied in accordance with concepts developed on a case by case basis rather than in accordance with the usual dictionary definitions of the words. [Citation.]” (Marchi v. Indiana Harbor Belt R.R. Co. (1980), 83 Ill. App. 3d 1005, 1008-09, 404 N.E.2d 938.)

Fleming argues that if Kamar is held liable under the Act, it will be as a result of its failure to provide protective devices for the injured plaintiff Prange, while he was operating the tractor-forklift. They •point to the fact that Kamar supplied the tractor, was responsible for its regular maintenance, and would have been the party to have installed a protective device. It is asserted that Kamar’s control over the tractor-forklift, in these respects, makes it the active wrongdoer, vis a vis Fleming, whose decedent was merely the subcontractor supervising actual construction of the pole barn. It is asserted that these facts place the case in a category with other cases wherein persons furnishing a defective scaffold have been held not entitled to indemnity from another third party. (Sack v. Arcole Midwest Corp. (1961), 33 Ill. App. 2d 344, 179 N.E.2d 441; Lindner v. Kelso Burnett Electric Co. (1971), 133 Ill. App. 2d 305, 273 N.E.2d 196; Shell Oil Co. v. Hercules Construction Co. (1966), 74 Ill. App. 2d 166, 219 N.E.2d 392.) As has already been noted, however, the active-passive determination must be made on a case-by-case basis, looking to the circumstances of each situation. In the instant case, while Kamar furnished the tractor and its accessories for use in the construction of the pole barn, there is evidence in the record that Sluder, Fleming’s decedent, had immediate supervisory authority and control over the actual construction of the pole barn. Included within that authority, according to deposition testimony, was the determination as to whether to use the boom and hoist attachment or the forklift attachment for the transportation and installation of the poles. There are evidentiary questions remaining as to duties owed by Sluder, which may have been breached. This is not a case where the only conceivable misconduct by him was a failure to discover the defect, or other similar purely passive act. Nor is it a case, like Sack, wherein one party furnished the scaffold, the labor, and the material, and was also fully responsible for the use of the scaffold and the erection of the building. While Kamar, as .the supplier of the equipment, had the duty to furnish safe equipment, Sluder, as subcontractor in charge of its use, had duties with respect to its safe use and maintenance. We find questions of fact remaining in the record, and will not conclude that Kamar was guilty of active misconduct as a matter of law, so as to prevent the indemnity action over against Fleming.

For the reasons stated above, the summary judgments entered in favor of Kamar against the Franges, and in favor of Fleming against Kamar, are reversed, and the causes are remanded for further proceedings in accordance with the views expressed herein.

Reversed and remanded.

BARRY, P.J., and STOUDER, J., concur.