author: JUSTICE PERLIN

text:
    PAULA PSZENNY, Plaintiff-Appellant, v. GENERAL ELECTRIC COMPANY et al., Defendants-Appellees.
    First District (2nd Division)
    No. 84—1996
    Opinion filed April 23, 1985.
    Hayes,. Pesek & Webb, of Oak Brook (Charles J. Pesek, of counsel), for appellant.
    Rathje, Woodward, Dyer & Burt, of Wheaton (Reese J. Peck, of counsel), for appellees.
   JUSTICE PERLIN

delivered the opinion of the court:

Paula Pszenny, plaintiff, appeals from an order of the circuit court of Cook County which dismissed with prejudice count III of her multicount complaint. The trial court made the dismissal final and appealable pursuant to Supreme Court Rule 304(a) (87 Ill. 2d R. 304(a)).

Count III alleges: In the fall of 1981 plaintiff, from an unascertained origin, began to suffer nausea, headaches, earaches, dizziness and blackouts. She sought medical treatment from defendant Dr. Hoffman in November and December 1981. Hoffman was unable to determine the cause of her ailments and he requested plaintiff to undergo a “CAT Scan” test at defendant Central Du Page Hospital.

The test was administered to plaintiff on January 11, 1982. Plaintiff alleges that in preparation for the CAT scan test, she was injected with a substance containing iodine. Upon being so injected, she became “violently ill.” She believed, at the time, that this condition she experienced at the hospital was merely another manifestation of the unknown ailment which Dr. Hoffman was attempting to treat.

In February 1982, she was informed by a person at Dr. Hoffman’s office that she had suffered an “allergic reaction” to the iodine which had been administered in preparation for the CAT scan test.

In March 1983, plaintiff consulted with another doctor concerning an unrelated ailment. During the course of her treatment she learned that if she had been tested for an allergic reaction to iodine before administration of the CAT scan test, she might have avoided the incident suffered at the hospital. She filed her complaint on February 7, 1984, some two years and three weeks after the CAT scan test.

In June 1984, defendant hospital filed a motion to dismiss count III (the only count directed against it), on the ground that the complaint was filed beyond the applicable two-year statutory limitations period. The hospital contended that plaintiff’s reaction to the CAT scan test was a “traumatic” injury which, as a matter of law, commenced running of the limitations period on the day that the injury occurred.

Plaintiff responded that the injury she suffered was not properly classified as “traumatic,” that she had two years from the time she “knew or should have known both that she was injured and that the injury was wrongfully caused” and that such issue was one to be determined by the trier of fact.

The trial court ruled that the injury suffered by plaintiff at the hospital was a “traumatic” injury and that the two-year statute of limitations therefore began running on the day the Cat scan test was administered. Holding that the complaint against the hospital was not timely filed, he dismissed it with prejudice. This appeal follows.

The applicable limitations statute (Ill. Rev. Stat. 1983, ch. 110, par. 13 — 212) provides, in relevant part:

“No actions for damages or death against any *** hospital *** arising out of patient care shall be brought more than 2 years after the date on which the claimant knew, or through the use of reasonable diligence should have known, *** of the existence of the injury or death for which damages are sought in the action, whichever of such date occurs first ***.”

As the Illinois Supreme Court stated in Witherell v. Weimer (1981), 85 Ill. 2d 146, 156, 421 N.E.2d 869, the “discovery rule” postpones the starting of this two-year limitations period until the injured party knows or should have known both of his injury and that it may have been negligently caused.

“The [limitations] statute starts to run when a person knows or reasonably should know of his injury and also knows or reasonably should know that it was wrongfully caused. At that point the burden is upon the injured person to inquire further as to the existence of a cause of action. [Citations.] In many, if not most, cases the time at which an injured party knows or reasonably should have known both of his injury and that it was wrongfully caused will be a disputed question to be resolved by the finder of fact. [Citation.] Where it is apparent from the undisputed facts, however, that only one conclusion can be drawn, the question becomes one for the court. [Citation.]” 85 Ill. 2d 146,156.

In the event it is determined that a plaintiff’s injury is caused by a “sudden traumatic” event his cause of action accrues, and the limitations statute begins to run, on the date the injury occurs. (Bates v. Little Company of Mary Hospital (1982), 108 Ill. App. 3d 137, 438 N.E.2d 1250.) The classification of an injury as “traumatic” or “nontraumatic” merely aids in the determination of when the plaintiff discovered, or should have discovered, that the injury was caused by the wrongful conduct of a defendant; the more obvious the injury the more easily a plaintiff should be able to determine its cause. Watkins v. Health & Hospitals Governing Com. (1979), 78 Ill. App. 3d 468, 397 N.E.2d 228.

“Traumatic injuries” have been defined as those where “the damage is caused by external violence” (Roper v. Markle (1978), 59 Ill. App. 3d 706, 711, 375 N.E.2d 934) and those which are “immediate and caused by an external force” (Lind v. Zekman (1979), 77 Ill. App. 3d 432, 438, 395 N.E.2d 964). The nature and circumstances surrounding the “traumatic injury” are such that the injured party is thereby put on notice that actionable conduct might be involved. “However, the nature and circumstances of the injury may be such that its cause is unknown or apparently innocent at the time it occurs. In the latter type of situation it would be ‘manifestly unrealistic and unfair to bar a negligently injured party’s cause of action before he has had an opportunity to discover that it exists. ***.' [Citation].” Kristina v. St. James Hospital (1978), 63 Ill. App. 3d 810, 813, 380 N.E.2d 816.

Injuries held to be “traumatic” include blindness caused by an uncontrolled flow of oxygen (Ikenn v. Northwestern Memorial Hospital (1979), 73 Ill. App. 3d 694, 392 N.E.2d 440); stroke and paralysis resulting from ingestion of birth control pills (Berry v. G.D. Searle & Co. (1974), 56 Ill. 2d 548, 309 N.E.2d 550); injuries suffered when plaintiff was pinned beneath a forklift truck (Bates v. Little Company of Mary Hospital (1982), 108 Ill. App. 3d 137, 438 N.E.2d 1250); and paralysis resulting from a car accident and subsequent medical treatment (Urchel v. Holy Cross Hospital (1980), 82 Ill. App. 3d 1050, 403 N.E.2d 545).

However, in cases in which negligent medical treatment was allegedly afforded during a time when the plaintiff was being treated for a preexisting condition, the courts are hesitant to apply the “traumatic event” aspect of the discovery rule. Thus, in Lind v. Zekman (1979), 77 Ill. App. 3d 432, 395 N.E.2d 964, plaintiff, several years after undergoing lens extraction surgery, lost the sight in that eye. Reversing the trial court’s summary judgment, and denying defendant’s contention that the blindness was a “traumatic” injury which commenced the running of the limitations period, the appellate court found that “there is nothing in the transcript to draw the conclusion that at the time she discovered her injury she should have made the causal connection between her lens extraction surgery and her blindness. ***. She could have been under the impression that her condition, although characterized as ‘unusual,’ was an innocent result of her eye surgery.” 77 Ill. App. 3d 432, 438.

In Watkins v. Health & Hospitals Governing Com. (1979), 78 Ill. App. 3d 468, 397 N.E.2d 228, plaintiff, a diabetic, entered a hospital for certain tests. At one point a dye was injected into her leg which caused a bloodclot and resulted in the amputation of the leg. Reversing the trial court’s dismissal of the complaint, the appellate court found:

“In light of the fact of plaintiff’s diabetic tendencies, it was possible for her to have her leg amputated and reasonably believe it was caused by her diabetic condition. This possibility was enough to prevent her from knowing or suspecting the negligence of the hospital in administering the dye test to her.
* * *
There is nothing in the pleadings that suggests she should have reasonably become aware of the connection between the dye test and the amputation of her leg. It would be quite reasonable for plaintiff, a diabetic, to assume the amputation was a result of her diabetes and not the defendant’s negligence. It was not until plaintiff discovered the amputation was due to another’s negligence that she should be imputed with knowledge of her right to a cause of action.” Watkins v. Health & Hospitals Governing Com. (1979), 78 Ill. App. 3d 468, 472-73; see also Martinez v. Rosenzweig (1977), 70 Ill. App. 3d 155, 387 N.E.2d 1263.

Turning to the instant case, plaintiff entered the hospital to determine the source of a host of ailments. Shortly after the CAT scan test, she again became severely ill. There is nothing in the pleadings which requires the conclusion that she should, at that time, have become aware of a connection between her hospital sickness and the CAT scan test.

In light of these circumstances, and the above authorities, we believe the trial court erred in concluding that the injury plaintiff suffered at the hospital was a “traumatic” event which commenced running of the statute of limitations. The injury suffered here was not the result of “external violence” such as an industrial or automobile accident. Moreover, the record indicates that the symptoms suffered by plaintiff at the hospital were not so markedly different from those which caused plaintiff to enter the hospital in the first place. Otherwise stated, plaintiff could reasonably have assumed that the hospital affliction was merely another manifestation of her preexisting condition, and that it was nonnegligently caused.

The question, therefore, of when plaintiff knew, or should have known, of her hospital injury and that it was caused by the negligent acts of another is an issue of fact to be resolved under all of the relevant facts and circumstances by the finder of fact.

For the foregoing reasons, the order of the circuit court dismissing count III of plaintiff’s complaint is reversed, and this cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

STAMOS, P.J., and BILANDIC, J., concur.

       This appeal involves only the dismissal of count III, and the allegations against defendant hospital. Therefore, facts which relate to the still pending counts against other defendants are omitted from this opinion.


source: Caselaw Access Project

author: JUSTICE O’CONNOR

license: Public Domain

text:
    HERITAGE BANK AND TRUST COMPANY, Plaintiff-Appellant, v. WILLIAM C. HARRIS, Illinois Commissioner of Banks and Trust Companies, Defendant-Appellee.
    First District (1st Division)
    No. 84—3110
    Opinion filed April 29, 1985.
    Adams, Fox, Adelstein & Rosen, of Chicago (Randall L. Mitchell, Joel S. Corwin, and Philip Fertik, of counsel), for appellant.

      Neil E Hartigan, Attorney General, of Springfield (Jill Wine-Banks, Solicitor General, and Patricia Rosen, Assistant Attorney General, both of Chicago, of counsel), for appellee.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Plaintiff Heritage Bank and Trust Company (Heritage), is an Illinois State Bank. It desires to sell its assets, subject to its liabilities, to Joliet Federal Savings and Loan Association (Joliet Federal), a federally chartered mutual savings and loan association, doing business in Illinois. The sale is subject to the approval of the defendant William C. Harris, Illinois Commissioner of Banks and Trust Companies (Commissioner). He will not approve the sale unless Joliet Federal is “doing a banking business” within the meaning of the Illinois Banking Act (the Act) and is a “bank” within the meaning of section 68 of the Act (Ill. Rev. Stat. 1983, ch. 17, par. 380). To secure such a judicial determination, Heritage filed a declaratory judgment proceeding. The parties filed cross-motions for summary judgment. After argument, the trial court granted summary judgment for the Commissioner. Plaintiff appeals.

Sections 2 and 68 of the Illinois Banking Act provide in pertinent part (Ill. Rev. Stat. 1983, ch. 17, pars. 302, 380):

“Sec. 2. General definitions. In this Act, unless the context otherwise requires,
* * *
‘Bank’ means any person doing a banking business whether subject to the laws of this or any other jurisdiction.
* * *
‘National Bank’ means a national banking association located in this State.
‘Person’ means an individual, corporation, partnership, joint venture, trust estate or unincorporated association.
* * *
‘State Bank’ means any banking corporation organized under or subject to this Act.”
“Sec. 68. Voluntary Dissolution. A state bank may elect to dissolve voluntarily and wind up its affairs by the act of the bank in the following manner:
(1) The board of directors shall adopt a resolution recommending that the bank be dissolved voluntarily and directing that the question of such dissolution be submitted to a vote at a meeting of stockholders ***.
* * *
(3) At such a meeting a vote of the stockholders entitled to vote thereat shall be taken on a resolution to dissolve voluntarily the bank, which shall require for its adoption the affirmative vote of the holders of at least two-thirds of the outstanding shares entitled to vote at such meeting, * * *
(4) Upon the adoption of such resolution, a statement of intent to dissolve shall be executed in duplicate by the bank, by its president or a vice-president, and verified by him, and the corporate seal shall be thereto affixed, attested by its secretary or cashier which shall set forth:
* * *
(h) An executed copy of the contract, if any there be, with another bank, or with the Federal Deposit Insurance Corporation or with both by which another bank assumes all the liabilities of the dissolving state bank.
* * *
(6) Duplicate originals of the statement of intent to dissolve *** shall be delivered to the Commissioner for his approval. If the Commissioner disapproves the dissolution, he shall state his objections and give an opportunity to the dissolving bank to amend its statements of intent to dissolve to obviate such objections.
(7) If the Commissioner finds that the statement of intent to dissolve conforms to the provisions of this Act when all fees and charges have been paid as in this Act prescribed, and *** if there is a contract pursuant to subsection (4)(h), when the Commissioner has approved such contract as being in compliance with the provisions of this Act and not prejudicial to creditors, the Commissioner shall indorse upon each of such duplicate originals the word ‘Approved’ and the month, day and year of his approval thereof.”

Plaintiff’s complaint in pertinent part alleged, and defendant admitted by answer:

As of March 31, 1984, Joliet Federal had total assets exceeding $500,000,000 and a ratio of capital to total assets of over 6.30%. It offers to consumers interest-bearing negotiable order-of-withdrawal (NOW) accounts and to commercial customers non-interest-bearing NOW accounts. These are the functional equivalents of personal and commercial checking accounts. It also offers savings accounts, takes other time deposits and buys and sells commercial paper and bills of exchange. It makes loans of money on collateral security, negotiates loans and is authorized to make secured and unsecured loans for commercial, corporate, business or agricultural purposes to the extent of 10% of its assets. It buys and sells negotiable securities issued by the government, State, national and municipal, and by other corporations. It is also authorized to perform trust services.

On February 23, 1984, plaintiff agreed to sell substantially all its assets, subject to substantially all its liabilities, to Joliet Federal. The acquisition is expressly subject to State and Federal regulatory approvals. Joliet Federal and Heritage intend to accomplish the acquisition through the voluntary dissolution of Heritage, the selling bank, under section 68 of the Illinois Banking Act. Section 68(4)(h) provides for the acquisition of the assets of a dissolving “state bank” and the assumption of its liabilities, by “another bank.” Section 2 defines the term “bank” as “any person doing a banking business whether subject to the laws of this or any other jurisdiction.”

The defendant Commissioner is charged with administering the provisions of the Act. Section 68 requires the Commissioner’s approval of the transaction here sought. The Commissioner refuses to approve the transaction. He does not deny that Joliet Federal meets all the definitional requirements of the term “bank” in section 2 of the Act and is “doing a banking business,” but believes, however, that the Illinois legislature, in drafting the Act, did not contemplate the assumption of a dissolving State bank’s liabilities by a savings and loan association. This belief is the sole basis on which the Commissioner refuses to approve the transaction.

Without a judicial declaration that Joliet Federal is a “bank” within the meaning of section 68(4)(h), the Commissioner will not approve Heritage’s statement of intent, the transaction with Joliet Federal will not be consummated, and Heritage and its shareholders will lose profits and other substantial benefits from the sale.

Because there were no genuine issues of material fact, the parties filed cross-motions for summary judgment. On December 11, 1984, the trial court found that Joliet Federal meets all the definitional requirements of the term “bank” and is “doing a banking business” within the meaning of section 2, but that Joliet Federal is not a “bank” within the meaning of section 68. Accordingly it granted the Commissioner’s motion for summary judgment, denied Heritage’s motion and certified the issue as “a question of importance requiring immediate decision by the appellate court.”

The sole question before this court is whether the trial court erroneously concluded as a matter of law that Joliet Federal was not a “bank” within the meaning of section 68 of the Act. We hold that the trial court was in error.

Where an act defines its terms, those terms must be construed according to the definitions in the act. In People ex rel. Scott v. Schwulst Building Center, Inc. (1982), 89 Ill. 2d 365, 432 N.E.2d 855, the court said (89 Ill. 2d 365, 371):

“Legislative intent is to be derived primarily from a consideration of the legislative language itself. ‘There is no rule of construction which authorizes a court to declare that the legislature did not mean what the plain language of the statute imports.’ (Western National Bank v. Village of Kildeer (1960), 19 Ill. 2d 342, 350.) Moreover, when an act defines its terms, those terms must be construed according to the definitions contained in the act. (Krebs v. Thompson (1944), 387 Ill. 471, 478.) Thus, the term ‘commodity’ as used in the Illinois Antitrust Act should be construed according to its definition in section 4.”

So here, “bank” as used in section 68 should be construed according to its definition in section 2.

In section 2, the term “bank” was given a broad, functional definition:

“ ‘Bank’ means any person doing a banking business whether subject to the laws of this or any other jurisdiction.”

In Knass v. Madison & Kedzie State Bank (1933), 354 Ill. 554, 188 N.E. 836, dismissed (1934), 292 U.S. 599, 78 L. Ed. 1463, 54 S. Ct. 632, the court considered the meaning of “doing a general banking business,” saying (354 Ill. 554, 563):

“The language ‘doing a general banking business’ may not by construction be extended beyond the meaning of like words used in the constitution of the State authorizing the creation of corporations ‘with banking powers.’ The words ‘banking powers,’ as used in the constitution, were in Reed v. People, 125 Ill. 592, construed to mean such powers as are ordinarily conferred upon and used by the various banks doing business in the country. The words ‘general banking powers’ are to be used in their common and ordinary sense. The ordinary and usual powers exercised by banks in doing general banking business are to loan money, to discount notes, receive deposits and deal in commercial exchange. They possess other powers, some of which are specifically conferred by statute, but these are the usual powers exercised in doing a general banking business. (Wedesweiler v. Brundage, 297 Ill. 228; People v. Doty, 80 N.Y. 225; Mercantile Nat. Bank v. City of New York, 121 U.S. 138; Exchange Bank of Columbus v. Hines, 3 Ohio St. 1.) Banking business has expanded as the needs and demands of commercial life have grown.”

The facts as alleged in the complaint and admitted by defendant constitute “doing a banking business.” The trial court so found, but held that it was not a bank under section 68(4)(h).

Section 68 provides for the voluntary dissolution by a vote of the stockholders, after which a statement to dissolve shall be executed which shall set forth among other things (section 68(4)(h)):

“(h) an executed copy of the contract, if any there be, with another bank, or with the Federal Deposit Insurance Corporation or with both by which another bank assumes all the liabilities of the dissolving state bank.”

The trial court was of the opinion that the legislature, in enacting the Banking Act, did not contemplate the assumption of a dissolving State bank’s liabilities by a savings and loan association. This is pure speculation and flies in the face of the definition of “bank” in section 2.

The Illinois Banking Act is a comprehensive statute regulating banking in Illinois. One of its purposes is the protection of State bank customers upon the winding up of the business of a bank. To that end, the Commissioner is charged with the duty of approving the contract by which a State bank voluntarily dissolves and transfers its assets and liabilities to another bank.

The purpose behind the policy requiring approval by the then Auditor of Public Accounts (now the Illinois Commissioner of Banks and Trust Companies) was succinctly stated in Continental Illinois National Bank & Trust Co. v. Peoples Trust & Savings Bank (1937), 366 Ill. 366, 374, 9 N.E.2d 53:

“Amended section 15 expressly provided that one bank could contract in writing with another bank to assume the whole amount of debts and demands against it, but the contract must be first approved by the Auditor of Public Accounts. Such contracts had never before been sanctioned by statute. The provision has several salutary objectives in behalf of banks, stockholders and creditors. The auditor of Public Accounts is the head of the State banking system. He has the facilities for determining the financial strength or weakness of banks. He has the means of ascertaining, with reasonable accuracy, whether a contract is fair or unconscionable, whether it is calculated to imperil the assuming bank or jeopardize the interests of those in the failing bank. He can protect the interests of the creditors and stockholders and compel strict performance of the agreement by the liquidating bank. These factors are essential elements of the amended act.
The very purpose of the amendments to section 15 was to give statutory sanction to assumption contracts provided they met with the approval of the Auditor of Public Accounts.”

The court in that case noted that the old method of voluntary liquidation was ordinarily impractical, since few banks could make the required deposit. The court then declared that the “salutary” purpose of the 1929 amendments was to safeguard the interests of banks, stockholders, and creditors by permitting a sound purchasing institution to assume a State bank’s liabilities with the approval of the auditor of public accounts. The approving official would be able to ascertain “with reasonable accuracy, whether a contract is fair or unconscionable, whether it is calculated to imperil the assuming bank or jeopardize the interests of those in the failing [liquidating] bank.” Continental Illinois National Bank & Trust Co. v. Peoples Trust & Savings Bank (1937), 366 Ill. 366, 374.

The purpose of present section 68 is the same as the purpose of its predecessor, but the statutory scheme now provides a more comprehensive solution to the same problem. Under section 68(4)(h) the assuming institution may be any “bank,” if the Commissioner is satisfied that the transaction conforms to the provisions of the Act.

As defined in section 2, “Bank” includes three elements: (1) any person; (2) doing a banking business; and (3) whether subject to the laws of this or any other jurisdiction. Joliet Federal fulfills all three.

(1) Any person. Section 2 defines a “person” as an individual, corporation, partnership, joint venture, trust estate or unincorporated association. Joliet Federal is a corporation.

(2) Doing a banking business. This defines the functions of a bank; it has nothing to do with the form or organization or identity of the controlling regulatory authority. The banking activities of Joliet Federal set out above, considered in the light of the Supreme Court’s opinion defining banking, shows clearly that Joliet Federal satisfied and fulfilled this condition.

(3) Whether subject to the laws of this or any other jurisdiction. “Bank” is a person doing a banking business “whether subject to the laws of this or any other jurisdiction.” By contrast, a “national bank” must be “located in this State” and a “state bank” must be “organized under or subject to this Act.” The Act thus imposes no jurisdictional limits on the range of institutions that may satisfy the definition of “bank.” A “bank” may be an institution chartered under Federal law or the law of this or of another State. The trial court found that Joliet Federal, which operates under a Federal charter, is subject to the laws of the United States.

The section 2 definition of “bank” as thus related to function differs markedly from the definitions in that section of “state bank” and “national bank.” The former is “any banking corporation organized under or subject to this Act”; the latter, “a national banking association located in this State.” These two definitions refer to specific territorial jurisdictions over, or the location of, the banking institution. Each excludes certain classes, i.e., “national bank” is defined to exclude institutions not organized as “national banking institutions”; “state bank,” to exclude institutions not organized under or subject to the Banking Act. On the other hand, “bank” is defined solely by function. Statutory authorization, jurisdiction or organizational structure are immaterial.

Section 68 implements and confirms this distinction between the broad meaning of “bank” and the restrictive definition of “state bank.” That section requires the dissolving institution to be a State bank, but allows the assuming institution to be simply “another bank.”

This distinction is maintained in the Act. Section '31 (Ill. Rev. Stat. 1983, ch. 17, par. 338) states in relevant part:

“Sec. 31. Emergency Sale of Assets or Merger. With the approval in writing of the Commissioner, *** any state bank may, by vote of a majority of its board of directors, and without a vote of its stockholders, sell all or any part of its assets to another state or national bank or to the Federal Deposit Insurance Corporation, or to both a state or national bank and the Federal Deposit Insurance Corporation, provided that a state or national bank assumes in writing all of the liabilities of the selling bank as shown by its records, other than the liabilities of the selling bank to its stockholders as such.”

Thus, this section covering the emergency sale of assets or merger explicitly required the assuming institution to be a “state bank” or a “national bank.” Section 68 has no such requirement for a voluntary dissolution. This difference is significant.

The Commissioner argues that the words “another bank” in section 68(4)(h) should be read as “another state bank,” because not do to so, he contends, makes the word “another” meaningless or superfluous. We disagree. That section provides for dissolution of “a state bank” by contract “with another bank, or with the Federal Deposit Insurance Corporation or with both by which another bank assumes all the liabilities of the dissolving state bank.” In this context, by the words, “another bank” the legislature could only have meant a “bank” other than the dissolving State bank. This is the only natural way to read the statute. Far from rendering the word “another” meaningless or superfluous, this reading gives the word its ordinary meaning.

If the legislature had intended to provide that the assuming institution must be another State bank, it would have so stated as it did in section 31 of the Act, which provides for the emergency sale of assets of “any state bank” and expressly requires that the purchasing institution be “another state or national bank.”

Although it is true that a court may add, delete, modify or alter words so as to effectuate the intent of the legislature (People ex rel. Barrett v. Anderson (1947), 398 Ill. 480, 76 N.E.2d 773), it “cannot read into the statute words which are not within the plain intention of the legislature as determined from the statute itself.” (Bovinette v. City of Mascoutah (1973), 55 Ill. 2d 129, 133, 302 N.E.2d 313.) Both “bank” and “state bank” are terms defined in the Act; and a comparison with the language of section 31 shows that the legislature acted deliberately in using the words “another bank” not “another state bank,” in section 68.

The Commissioner also argues that his construction of section 68(4)(h) is supported by the General Assembly’s failure in 1983 to pass House Bill 1624 (as amended by amendment No. 1). That bill would have amended section 31 to provide that, in an emergency, a savings and loan association, with the commissioner’s approval, could acquire the capital stock of a State bank. From the nonadoption of the bill, the Commissioner argues that the transaction contemplated by Heritage and Joliet Federal under section 68 is not authorized by existing law. We disagree.

The bill left the language of section 68 completely untouched. Moreover, the emergency acquisition of stock contemplated by the bill is very different from the nonemergency transfer of assets, subject to liabilities, provided for in section 68(4)(h). The General Assembly’s failure to enact House Bill 1624 therefore cannot be interpreted to prohibit a savings and loan that does a banking business to acquire the assets of a State bank and assume its liabilities.

The amendment of section 31 to authorize the emergency sale of a State bank’s assets to “a savings and loan association” would be necessary because section 31, unlike section 68(4)(h), now authorizes the sale of a State bank’s assets only to “another state or national bank.” Section 68(4)(h) does not contain parallel restrictions, and there was therefore no reason to amend it.

The Commissioner further argues that State banks and savings and loan associations are regulated by separate statutes — State banks by the Illinois Banking Act; savings and loan associations, by the Illinois Savings and Loan Act (Ill. Rev. Stat. 1983, ch. 17, par. 3001 et seq.) — and that, because the Savings and Loan Act contains no authorization for a savings and loan to purchase the assets of a bank, the absence of such a provision conclusively demonstrates that the legislature never intended to allow a bank to be able to sell all of its assets to a savings and loan. We disagree. The Savings and Loan Act does not control the activities of federally chartered savings and loan associations. It merely assures that Federal associations enjoy, consistent with Federal law and regulations, “all of the rights, powers, privileges, immunities and exemptions” granted to State-chartered associations. (Ill. Rev. Stat. 1983, ch. 17, par. 3003.) If that act purported to prohibit federally chartered associations from purchasing the assets of another institution, the Federal Home Loan Bank Board regulations would preempt the Illinois Savings and Loan Act. See Fidelity Federal Savings & Loan Association v. de la Cuesta (1982), 458 U.S. 141, 73 L. Ed. 2d 664, 102 S. Ct. 3014.

Significantly, the fact that banks and savings and loan associations are regulated by different statutes was specifically recognized by the legislature in section 2 of the Banking Act when it defines “bank” to involve institutions subject to the laws of “this or any other jurisdiction.”

The transaction between Joliet Federal and Heritage is not a cross-industry merger, but a sale of assets. Consequently it will not result in any conflict between regulatory authorities. Under section 68, the Commissioner has undivided authority over a State bank that enters into a contract to sell its assets to another “bank.” After the contract is approved by the Commissioner, the selling bank dissolves and the purchasing institution simply continues to be regulated by the authorities that regulated it before the transaction. There is no occasion for conflict between regulatory agencies.

Because of the recent “intensification of competition” in the banking business between banks and savings and loan associations, the Commissioner argues that the latter should not be generally authorized to purchase the assets of State banks until the legislature determines the effects of such transactions on competition. This argument, however, ignores that fact that Joliet Federal is a bank as defined in section 2 and that the purchase of a State bank’s assets by another bank is governed by the statute and does not require judicial approval. Because the Act authorizes such transactions, only the legislature can amend the Act, not the courts.

The Commissioner further argues that this court should accord deference to its interpretation that a savings and loan association should not be considered a bank under the Illinois Banking Act. It is well settled, however, that an “administrative construction of a statute is not binding if it is erroneous.” (Illinois Power Co. v. Mahin (1978), 72 Ill. 2d 189, 195, 381 N.E.2d 222.) Because we find that his interpretation is erroneous, it is not entitled to deference.

The trial court erroneously held that Joliet Federal was not a bank under section 68(4)(h). We find that it was a bank under that provision and reverse that judgment of the circuit court. We remand the cause to the circuit court of Cook County with directions to enter judgment declaring that Joliet Federal Savings and Loan Association is “doing a banking business” and is a “bank” within the meaning of section 68(4)(h) of the Illinois Banking Act. We further direct the circuit court to declare that the statement of intent and contract to be filed with William C. Harris, the Illinois Commissioner of Banks and Trust Companies, meets the statutory requirements and should be approved by the Commissioner in the manner prescribed by section 68(7) of that Act.

Reversed and remanded with directions.

CAMPBELL and BUCKLEY, JJ., concur.


author: PRESIDING JUSTICE HEIPLE SCOTT, J., JUSTICE STOUDER,

text:
    DENNIS A. DAVISON, Plaintiff-Appellant, v. BOARD OF TRUSTEES OF CARL SANDBURG COLLEGE, DISTRICT No. 518, Defendant-Appellee.
    Third District
    No. 3—84—0426
    Opinion filed March 22, 1985.
    Modified on denial of rehearing June 4,1985.
    STOUDER, J., dissenting.
    Timothy L. Bertschy, of Heyl, Royster, Voelker & Allen, of Peoria, for appellant.
    No brief filed for appellee.
   PRESIDING JUSTICE HEIPLE

delivered the opinion of the court:

The plaintiff-appellant, Dennis A. Davison, brought suit against the defendant-appellee, board of trustees of Carl Sandburg College, District No. 518 (hereafter the college), to recover damages for the alleged breach of the plaintiff’s employment contract. After a bench trial, judgment was entered for the defendant, and this appeal followed. We affirm.

We note at this point that no appellee’s brief has been submitted by the college. It is well established, however, that where the record is simple and the court of review can easily decide the disputed errors without an appellee’s brief, the reviewing court may decide the merits of the appeal. First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493.

The underlying facts of this case are not in dispute. Davison was a full-time instructor at the college during the 1982-1983 academic year. In January of 1983, Davison and the college agreed that he would teach summer school that year. At the time the parties made that agreement, each understood that Davison would be paid at the rate for a full-time instructor.

In February 1983, Davison was denied tenure by the college. He was offered, however, a one-year probationary contract for the 1983-1984 school year. In April 1983, Davison informed the college through his supervisor and the board of trustees that he would resign. His resignation was accepted, and Davison’s written contract of employment terminated by its terms on May 25,1983.

Davison’s summer employment was, therefore, not governed by the written contract. Instead, the contract for the summer employment was the oral agreement reached between the parties in January 1983. The terms of that contract indicated that Davison would be paid at the full-time rate.

After Davison tendered his resignation, the dean of students determined that his rate of pay for summer employment would be that of a part-time instructor. Davison was informed of this decision in late April or early May 1983. At that time, he objected to being paid at the part-time rate. The day before the summer term began, Davison’s supervisor inquired as to whether he was going to teach summer school. Davison then said that he would teach.

Davison taught 12 hours of class during summer school. He was paid for that work at the part-time rate. The difference between his salary at the full-time rate and at the part-time rate was $1,200.

After receiving his first payment check for the summer work, he instituted a grievance proceeding against the college to obtain the higher full-time rate of pay. In addition, when Davison received checks from the college during the summer, he endorsed them on the back with the following language or words to this effect:

“My endorsement on this instrument does not imply my agreement that the amount is all that is due to me at this time.”

The college refused Davison’s grievance. The plaintiff then filed the instant action.

The trial court entered judgment in favor of the college, stating that the college had sought to modify the oral summer employment contract it had made with Davison so as to pay the part-time instructor rate. The trial court further held that such a modification would ordinarily be a nudum pactum because it was done without consideration, thereby giving the party against whom the change was sought the right to repudiate the modification and claim the full amount speciiied in the original contract. The trial court found, however, that one may waive performance of the original agreement and ratify the modified contract. If this is done and the party fully performs and accepts the benefit of the new agreement, he cannot later repudiate it and sue for the difference. Although Davison was under no obligation to teach summer school at the part-time rate, the court concluded that once he fulfilled his part-time teaching contract, he could not repudiate the modified contract and recover the full-time rate of pay.

We believe this view is essentially correct. The dean’s actions amounted to an offer to modify an executory agreement. By carrying the modified contract into effect and accepting its benefits, Davison ratified the new agreement and waived performance of the original contract. Hines v. Ward Baking Co. (7th Cir. 1946), 155 F.2d 257; Snow v. Griesheimer (1906), 220 Ill. 106.

Davison contends that the Hines rationale is inapposite because there is no evidence here to indicate that he agreed to accept the terms of the modified contract before performance. Davison’s actions prove otherwise.

Prior to the commencement of summer classes, Davison was asked by his supervisor whether he was going to teach. Although he never expressly agreed to work at the part-time rate, Davison was fully aware of the pay scale offered by the dean and responded without qualification that he would teach. Davison later changed his mind and protested after receiving his first paycheck, but he nonetheless completed the contract as modified. Accordingly, we affirm the judgment of the circuit court of Knox County.

Affirmed.

SCOTT, J.,

concurs.

JUSTICE STOUDER,

dissenting:

I respectfully disagree with the reasoning and result reached by my colleagues. Only an appellant’s brief was filed in this case; therefore, the appellant, Dennis Davison, has the burden of overcoming the presumption of propriety of the trial court decision. (First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493.) In my opinion, Davison has successfully met this burden by indicating that the law relied upon by the trial court was inapplicable to the facts of this case.

The majority and the trial court rely on Hines v. Ward Baking Co. (7th Cir. 1946), 155 F.2d 257, as dispositive of this case. Each rely on a general principle applied to facts substantially and legally different from those in the present case. In Hines, the plaintiff was employed under a five-year written employment contract. After two years, he agreed to a 10% reduction in salary for the remainder of the contract period. His agreement to the modification was in writing, which also provided that he could submit to the company a recommendation for a partial or complete restoration of his salary to the rate specified in the original contract. For the duration of the contract, he received and retained the lesser salary. Later, he sought recovery of the difference; however, the trial court ruled against him and the appellate court agreed, holding that if parties proceed to execute fully the modified agreement so that nothing remains to be done by either party and the agreement is no longer executory, the contract as executed will not be disturbed.

In the present case, Davison did not agree to the college’s unilateral modification of the oral employment contract. Further, his conduct in no way evinced acceptance, either tacit or otherwise, of the terms, as suggested by the majority. Davison never agreed to teach at the part-time rate. He instituted a grievance proceeding against the college, and he also endorsed the paychecks he received with language to the effect that his endorsement did not imply an agreement to the modification.

If the majority’s theory is correct, namely, Davison’s only cause of action was for breach of contract at the time the college indicated it did not intend to perform its obligation by paying Davison at the full-time teachers rate, we would reach the result that the college would be obligated to pay in full for the summer school term at the higher rate, but only if Davison did not teach. Clearly such a result is not reasonable, and the college would be the first to complain about the inequities of such a result.

I would reverse the decision of the trial court and enter judgment for Davison.


author: JUSTICE LINN

text:
    EVELYN BLACCONERI, Plaintiff-Appellant, v. DAVID AGUAYO et al., Defendants-Appellees.
    First District (4th Division)
    No. 84—1046
    Opinion filed May 2, 1985.

      Propp & Schultz, of Chicago, for appellant.

      Gerald W. Saperstein, of Skokie, for appellee David Aguayo.
    Jacobs, Williams & Montgomery, Ltd., of Chicago (Barry L. Kroll, Donald E. Stellate, and Lloyd E. Williams, Jr., of counsel), for appellee Michael Aguayo.
   JUSTICE LINN

delivered the opinion of the court:

Plaintiff brought an action for damages against defendants, automobile driver and automobile owner, arising out of injuries she sustained when struck while crossing the street. The trial court granted defendant auto owner’s motion for a directed verdict in his favor at the close of all the evidence.

Following instructions and deliberation, the jury found defendant driver liable to plaintiff and awarded her $15,000 in economic damages. The jury further found that plaintiff was contributorily negligent and reduced the damage award by 99% to $150.

On appeal, plaintiff claims that the trial court erred (1) by admitting evidence of safer alternative routes; (2) by giving repetitive IPI instructions to the jury; and (3) by directing a verdict in favor of defendant auto owner.

We affirm the decision of the trial court.

Background

In the midst of rush hour, on a dark and drizzly evening in October 1981, plaintiff, Evelyn Blacconeri, was dropped off by a co-worker on the southwest corner of Harlem Avenue and 13th Street. Harlem Avenue is a major four-lane thoroughfare, with two northbound and two southbound lanes divided by a double yellow line. The speed limit on Harlem Avenue is 35 miles per hour. The intersection of Harlem and 13th Street is uncontrolled; there is neither a painted crosswalk nor a traffic signal. The closest controlled intersection to Harlem and 13th Street is Roosevelt Road, one block north. At rush hour, Harlem Avenue is typically well-trafficked in both directions.

After plaintiff was dropped off at the southwest corner of the 13th Street intersection, she crossed from the southwest corner to the northwest side of the street. Plaintiff then attempted to cross Harlem Avenue, walking in a northeasterly direction.

Delores Grech testified at trial that she was walking west on the south side of 13th Street approaching the Harlem Avenue intersection when she saw a woman (plaintiff) standing on the west side of Harlem, approximately 60 feet north of the 13th Street intersection. Grech next saw the woman standing on the center divider in the mid-die of Harlem Avenue, apparently having successfully negotiated crossing the southbound lanes. Grech then saw plaintiff hesitate for a few seconds and start across the northbound lanes, making her way east in a diagonal route across Harlem.

Grech testified further that seconds after she saw plaintiff enter the northbound lanes, she saw a car, driven by defendant, Michael Aguayo, approaching in the northbound curb lane on Harlem Avenue, just north of the 13th Street intersection. Grech noticed that another car, approaching from the north in the center lane next to defendant, had slowed down. Immediately thereafter, Grech saw plaintiff struck by defendant’s car, which stopped upon impact, approximately 60 feet north of the 13th Street intersection.

Grech’s testimony regarding the point of impact was disputed by plaintiff, who claims she was struck “just a couple of feet” north of the 13th Street corner. Five witnesses testified as to where plaintiff and defendant’s car were located immediately subsequent to the accident. Among these post-occurrence witnesses was investigating Officer Joseph Petersen, who testified that plaintiff was 67 feet north of the 13th Street curb when she was struck. Also among these witnesses was paramedic James Keating, who estimated that plaintiff was 75 feet north of the 13th Street curb when he found her at the accident scene.

Grech’s testimony was corroborated by the defendant driver, who stated that the car he was driving at the time of the accident belonged to his brother, defendant David Aguayo. Michael stated that at the time of the occurrence, he was on his way to an auto supply store to pick up some parts with which to service his brother’s car. David Aguayo testified that he had not requested Michael to work on the car and had no knowledge of Michael’s intention to do so.

Michael Aguayo testified that he was proceeding down Harlem Avenue at a rate of 33 to 35 miles per hour and was about two car lengths from plaintiff when he saw her in the center northbound lane. He stated that there was a car next to his, in the center northbound lane, and that this car had slowed down just when Michael had accelerated to cross the 13th Street intersection. Plaintiff entered defendant’s lane, running diagonally in a northeasterly direction towards the curb. Michael testified that he hit his brakes and slid into the east curb, thereby slowing his car to a speed of 5 or 10 miles per hour prior to impact. Defendant’s car came to a complete halt upon coming into contact with plaintiff.

Following the accident, plaintiff was taken to a hospital, where she was treated for fractures of the pelvic bone and lower back and a scalp laceration. She remained in intensive care for three days and was then seen on an out-patient basis for several weeks thereafter. Ten weeks after the accident, one of plaintiff’s treating physicians, Dr. Dilip Shah, informed her that she should be “gainfully employed.” Plaintiff, however, did not return to work for 19 weeks following her injury.

At the close of all the evidence, defendant David Aguayo, the car owner, moved for a directed verdict in his favor. The trial court granted his motion. Upon instruction and deliberation, the jury then found defendant Michael Aguayo liable to plaintiff and awarded her $15,000 for economic damages suffered. The jury further found plaintiff 99% contributorily negligent and, correspondingly, reduced the damage award to $150.

Plaintiff filed a post-trial motion for a new trial, either on all issues or on the issues of liability and damages. Her motion was denied. She now appeals from the order denying her motion.

Opinion

I

Plaintiff’s first contention on appeal is that she was denied a fair trial due to the improper admission of and undue emphasis placed on evidence of a “safer alternative,” namely, that plaintiff could have crossed Harlem Avenue at the controlled crossing one block north at Roosevelt Road. Plaintiff contends that such evidence should not have been admitted because it misled and confused the jury in its determination of whether plaintiff was contributorily negligent. Defendant maintains that evidence of a safer alternative was admissible as relevant to show whether plaintiff used due care for her own safety, the inquiry underlying the concept of contributory negligence. Our review of the applicable case law convinces us that the safer-alternative doctrine was correctly utilized in the instant case.

A plaintiff is contributorily negligent when she acts without that degree of care which a reasonably prudent person would have used for her own safety under like circumstances, and which action is the proximate cause of her injury. (Moran v. Aken (1981), 93 Ill. App. 3d 774, 417 N.E.2d 846.) Generally, the issue of whether plaintiff exercised due care for her own safety is a question of fact for the jury. (Hartgraves v. Don Cartage Co. (1976), 63 Ill. 2d 425, 348 N.E.2d 457.) The burden of proving oneself free from contributory negligence rests with the plaintiff. (Shannon v. Addison Trail High School (1975), 33 Ill. App. 3d 953, 339 N.E.2d 372.) In Illinois, contributory negligence is no longer a complete bar to recovery and goes only to diminution of the damage award. Misch v. Meadows Mennonite Home (1983), 114 Ill. App. 3d 792, 449 N.E.2d 1358.

Where a danger is obvious to a person of ordinary intelligence, the law will charge one with knowledge of it. (Klimovich v. Crutcher (1965), 57 Ill. App. 2d 444, 206 N.E.2d 723.) It is incompatible with the exercise of due care for one’s own safety and protection to voluntarily expose oneself to danger of which one is aware; ordinary prudent persons do not knowingly place themselves in a position of peril or danger. (Bitner v. Lester B. Knight & Associates, Inc. (1974), 16 Ill. App. 3d 857, 307 N.E.2d 136.) The mere fact that one has the right to proceed in a certain manner does not justify exposing oneself to a known hazard in the act of proceeding. Withey v. Illinois Power Co. (1961), 32 Ill. App. 2d 163,177 N.E.2d 254.

Plaintiff in the instant case elected to hurry across a busy four-lane thoroughfare during rush hour traffic, under dark and drizzly conditions. She was familiar with the thoroughfare and how heavily trafficked it was at that hour because she was routinely dropped off there every day after work. It is obvious to a person of ordinary intelligence that the hurried crossing of that street under those adverse conditions necessarily involved plaintiff’s placing herself in a position of peril. While we do not dispute plaintiff’s contention that she had a right to proceed as she did, that right does not alter the fact that proceeding as such showed a failure to exercise due care for her own safety.

A person has no right to knowingly expose himself to danger and then recover damages for an injury that he might have avoided by the exercise of some act or precaution. (Dragstrem v. North Branch Metal Products, Inc. (1958), 20 Ill. App. 2d 57, 155 N.E.2d 358.) If a person has available to him two different ways of proceeding, one dangerous or hazardous and the other safe, and he consciously chooses the former and is injured as a consequence of his choice, he is contributorily negligent. Atchley v. Berlen (1980), 87 Ill. App. 3d 61, 408 N.E.2d 1177.

Courts in Illinois have consistently recognized that evidence of the existence of a safer alternative, known to but not chosen by the plaintiff, is properly admissible to show contributory negligence. (Geraghty v. Burr Oak Lanes, Inc. (1955), 5 Ill. 2d 153, 125 N.E.2d 47; Cuthbert v. Stempin (1979), 78 Ill. App. 3d 562, 396 N.E.2d 1197; Newton v. Meissner (1979), 76 Ill. App. 3d 479, 394 N.E.2d 1241; Klimovich v. Crutcher (1965), 57 Ill. App. 2d 444, 206 N.E.2d 723.) Whether plaintiff has a choice of routes, and if she had, whether she chose a safe or unsafe route are questions of fact properly submitted to the jury. (Geraghty v. Burr Oak Lanes, Inc. (1955) 5 Ill. 2d 153, 125 N.E.2d 47.) Thus, in determining whether plaintiff was contributorily negligent, the fact finder may consider not only plaintiff's course of conduct but also whether safer alternatives were available. While plaintiff cannot be held contributorily negligent as a matter of law merely because she did not cross in a marked crosswalk, evidence of the existence of an available alternative course of known safety may be taken into consideration by the jury in determining whether plaintiff exercised due care for her own safety. Newton v. Meissner (1979), 76 Ill. App. 3d 479, 394 N.E.2d 1241; Klimovich v. Crutcher (1965), 57 Ill. App. 2d 444, 206 N.E.2d 723.

Because evidence of safer alternative routes may be considered by the fact finder in determining whether a plaintiff is contributorily negligent, we find that such evidence was properly admitted in the instant case.

Plaintiffs next contention on appeal is that she was prejudiced by the giving of repetitive IPI instructions to the jury. Specifically, plaintiff objects to the trial court’s giving, at defendant’s request, Hlinois Pattern Jury Instruction (IPI), Civil, No. 11.01 (2d ed. 1971), because it was prejudicially duplicative of IPI Civil 2d No. A10.03, the instruction tendered by plaintiff. We find that IPI Civil 2d No. 11.01 was complementary to rather than duplicative of IPI Civil 2d No. A10.03, and that the trial court’s giving of both instructions was entirely proper.

Plaintiff’s instruction No. 8, IPI Civil 2d No. A10.03, provided as follows:

“It was the duty of the plaintiff, before and at the time of the occurrence, to use ordinary care for her own safety. The failure of a plaintiff to use ordinary care for her own safety is known as contributory negligence.
Plaintiff’s contributory negligence, if any, does not bar her recovery. However, the total amount of damages to which she would otherwise be entitled is reduced in proportion to the amount of her negligence. This is known as comparative negligence.”

Defendant’s instruction No. 3, IPI Civil 2d No. 11.01, given over plaintiff’s objection, provided:

“When I use the expression ‘contributory negligence’, I mean negligence on the part of the plaintiff that proximately contributed to cause the alleged injury.”

A finding of contributory negligence is dependent on two factors. First, a person must act without due care for his own safety; and, second, such action must be the proximate cause of one’s injury. (Moran v. Aken (1981), 93 Ill. App. 3d 774, 417 N.E.2d 846.) IPI Civil 2d No. A10.03, the instruction tendered by plaintiff, instructs on the first factor, namely, plaintiff’s failure to use due care. IPI Civil 2d No. 11.01, the instruction tendered by defendant, instructs on the second factor, which relates to the element of proximate cause. In order for a jury to correctly decide the issue of contributory negligence, it must be instructed on both of these factors.

The importance of instructing a jury on proximate cause as well as on contributory negligence is stressed in the “Notes to Use” to IPI Civil 2d Nos. A10.03 and 11.01. The note to No. A10.03 states that “IPI 11.01 must be given with this instruction.” Similarly, the note to IPI Civil 2d No. 11.01 states, “This instruction should be used whenever ‘contributory negligence’ is a jury issue.” Additionally, the comment to IPI Civil 2d No. 11.01 cites numerous Illinois cases in support of the proposition that “it is reversible error to omit the element of proximate cause in an instruction defining contributory negligence.” Were the court to give IPI Civil 2d No. A10.03 without coupling it with IPI Civil 2d No. 11.01, the element of proximate cause would be improperly omitted from the definition of contributory negligence.

Instructions are proper when they convey to the jurors the correct principles of law applicable to the evidence submitted to them. (Crump v. Universal Safety Equipment Co. (1979), 79 Ill. App. 3d 202, 398 N.E.2d 188.) The instructions at issue in the instant case conveyed to the jurors the correct principles of contributory negligence, both as to the plaintiff’s failure to use due care and as to the requirement that such failure be the proximate cause of plaintiff’s injury. Accordingly, the trial court’s giving of IPI Civil 2d Nos. A10.03 and 11.01 was proper.

II

Having found that the evidence of safer alternatives was properly admitted and that the jury was properly instructed on the issue of contributory negligence, we further find, after reviewing the record as a whole, that the jury’s verdict, finding plaintiff 99% contributorily negligent, was not against the manifest weight of the evidence. The facts, as presented above, reveal that plaintiff, by crossing a heavily trafficked thoroughfare at rush hour under dark and drizzly conditions, when a safer alternative route was available, failed to exercise due care for her own safety. The evidence further supports the finding that such lack of due care proximately caused the injuries plaintiff suffered.

Because plaintiff, both in her post-trial motion and on appeal, seeks a new trial only on either all issues, or on the issues of liability and damages, and will not accept a new trial on the damage issue alone; and, because we find that the verdict on liability was not against the manifest weight of the evidence, we need not address plaintiff’s contention that the jury’s damage award was erroneous.

Ill

Plaintiff finally asserts that the trial court erred by granting defendant David Aguayo’s motion for a directed verdict in his favor at the close of the evidence. David Aguayo was the admitted owner of the automobile being driven by his brother Michael at the time of the accident. Under these facts, any liability on David’s part would be premised on the theory of agency.

On appeal from the granting of a directed verdict for defendant at the close of all the evidence, a reviewing court examines the evidence to determine whether plaintiff has made out a prima facie case (Geiger v. Zikic (1980), 81 Ill. App. 3d 1016, 401 N.E.2d 1260), and whether, after weighing the evidence, that prima facie case has been rebutted or still remains. (Franciscan Sisters Health Care Corp. v. Dean (1983), 95 Ill. 2d 452, 448 N.E.2d 872.) The plaintiff, appealing from a directed verdict in favor of defendant, has the burden of showing that the direction of the verdict was improper. Simmons v. South Shore Hospital (1950), 340 Ill. App. 153, 91 N.E.2d 135.

The parties here do not dispute the proposition that the proof of one defendant’s ownership of an automobile driven by another defendant establishes a prima facie case of agency, which, if not rebutted, will support a judgment for plaintiff. (Parrino v. Landon (1956), 8 Ill. 2d 468, 134 N.E.2d 311.) Nor do the parties here dispute that defendant David Aguayo presented “some” evidence to rebut the presumption of agency. What the parties do dispute is whether it was for the trial judge or for the jury to weigh the evidence presented by defendant in order to determine whether he sufficiently rebutted defendant’s prima facie case.

In properly directing a verdict, the trial judge determines, as a matter of law, that there are no evidentiary facts out of which the jury may construct the necessary ultimate fact essential to recovery. (Home Indemnity Co. v. Reynolds & Co. (1962), 38 Ill. App. 2d 358, 187 N.E.2d 274.) In the instant case, where plaintiff has established a prima facie case by virtue of a presumption, it was for the trial judge to determine that the evidence presented by defendant was sufficient to burst plaintiff’s presumption and support a directed verdict in favor of defendant.

A trial court’s ruling on defendant’s motion for a directed verdict will not be reversed on review unless it is contrary to the manifest weight of the evidence. (Hemken v. First National Bank (1979), 76 Ill. App. 3d 23, 394 N.E.2d 873.) In his testimony, David Aguayo stated that he lent his car to his brother as a favor, that he had no knowledge that his brother was going to do work on the car, that he never requested Michael to work on the car or to get the car repaired, and that during the period in which the car was on loan to Michael, David did not even know if and when Michael was actually driving it. It is not contrary to the manifest weight of the evidence, considering the above testimony, for the trial court to have found that defendant David Aguayo sufficiently rebutted the presumption of agency raised by the plaintiff.

For the reasons stated above, we find that plaintiff has failed to carry her burden of showing that the directed verdict in favor of David Aguayo was improper.

Accordingly, we affirm the decision of the trial court, both as to the jury’s verdict on liability and damages and as to the directed verdict in favor of defendant David Aguayo.

Affirmed.

JIGANTT, P.J., and ROMITT, J., concur.