author: JUSTICE JIGANTI

text:
    MANAGEMENT SUPPORT ASSOCIATES, Plaintiff-Appellant, v. UNION INDEMNITY INSURANCE COMPANY OF NEW YORK et al., Defendants-Appellees, (Frank B. Hall & Company of Illinois, Defendant).
    First District (4th Division)
    No. 84—359
    Opinion filed December 20, 1984.

      William I. Goldberg and John H. Ward, both of Antonow & Fink, of Chicago, for appellant.
    Jacobs, Williams & Montgomery, Ltd., of Chicago (Barry Kroll, Joseph Vallowe, and Lloyd E. Williams, Jr., of counsel), for appellees.
   JUSTICE JIGANTI

delivered the opinion of the court:

This is a declaratory judgment action to determine whether the insurer is obligated to defend and indemnify its insured. The trial court entered judgment in favor of the insurer. The plaintiff, Management Support Associates (MSA), was insured by the defendants, Union Indemnity Insurance Co. of New York and Union International Insurance Co., Ltd. (collectively “Union Insurance”), for liability arising out of “negligent acts, errors, or omissions” in MSA’s performance of architectural and engineering services it was to provide under a contract MSA entered into with the United States Army Corps of Engineers. In addition, the policy also covered “life support” services provided by MSA (such as housing, food service, maintenance, recreational and other facilities) for personnel working in connection with the Corps’ air base construction project in the Negev Desert in Israel.

The specific focus in this action is on whether Union Insurance’s duty to defend and indemnify MSA for its performance of “life support” services arises for all claims filed, as is asserted by MSA, or whether this duty arises only for claims arising from MSA’s “negligent acts, errors or omissions,” as is asserted by Union Insurance. If the duty arises as a result of the latter, the next inquiry is whether the complaint sufficiently alleges potential acts within the policy’s coverage.

Pursuant to its obligation under this contract, MSA leased the Palace Hotel in Tel Aviv, Israel, for three years from its owner, Etablissement Nahal (Nahal). Subsequent to the expiration of the lease, Nahal' filed a complaint against MSA in the Israel District Court of Tel Aviv-Yaffo seeking damages in the amount of $3,857,763 for damage done to the hotel. MSA tendered the Nahal complaint to Union Insurance for defense and indemnity. Union Insurance refused to defend against the tendered complaint, asserting that in order to invoke a duty to defend, the instant insurance policy required that the claim be “caused by a negligent act, error or omission” attributable to MSA and that no such duty existed because the Nahal complaint alleged only a breach of lease which sounded solely in contract.

MSA then brought this action for a declaratory judgment that Union Insurance is obligated under the policy to defend and indemnify MSA against the Nahal suit. MSA presented alternative arguments, arguing first that the Nahal complaint was covered under the policy, notwithstanding the fact that the complaint only alleged a contract action and not a “negligent act, error or omission,” because an endorsement to the policy served to delete the “negligent act, error or omission” requirement. Secondly, MSA .argued that even with the endorsement construed as retaining the “negligent act, error or omission” requirement, the Nahal complaint was still covered because the complaint contained sufficient allegations of negligent conduct on the part of MSA to potentially bring the suit within the policy’s coverage.

Both sides moved for summary judgment. The trial court ruled in favor of Union Insurance, finding that the “negligent act, error or omission” clause remained in effect and that the Nahal complaint failed to allege any negligent conduct on the part of MSA. This appeal followed.

The coverage in the original insuring agreement, an Architects/ Engineers Professional Liability Policy, provided that:

“The Company will pay on behalf of the Insured all sums *** which the Insured shall become legally obligated to pay as damages for claims *** if such legal liability arises out of the performance of professional services for others in the Insured’s capacity as an architect or an engineer or such other professional capacity as may be included within the schedule and if such legal liability is caused by a negligent act, error or omission of the Insured *** in connection with the project defined in the schedule.” (Emphasis added.)

This policy placed two requirements upon Union Insurance’s legal liability; (1) such legal liability must arise out of the performance of certain defined services; and (2) such legal liability 'must be caused by a negligent act, error or omission of MSA.

The schedule, referred to in the “Coverage” section of the policy, defined professional capacity as:

“Professional, technical, management assistance and life support services to U. S. Army Corps of Engineers in conjunction with construction of airfield in the Negev in Israel.”

However, under the heading of “Exclusions,” the policy provided under exclusion 1(a) that:

“This insurance shall not apply to claims, or to claims expenses arising from such claims, alleging, arising out of or seeking the performance of services not customary for an architect or engineer.”

As a result of an obvious conflict that existed between the scope of services covered in the original insuring agreement and schedule, which included services not customary for architects and engineers, such as management assistance and life support services, and exclusion 1(a), which excluded coverage for services “not customary” for architects and engineers, the parties added an endorsement to the policy. This endorsement provided:

“It is hereby understood and agreed that the policy is amended as follows:
Anything to the contrary notwithstanding the coverage afforded this policy shall apply for such legal liability which arises out of the performance of professional, technical, management assistance and certain life support services to the U. S. Army Corps of Engineers (COE) as stipulated in Contract DACA-52-79-C-000.
It is further specifically understood and agreed that exclusion 1(a) under Exclusions is deleted in its entirety.”

In the case at bar, neither party has cited to this court any authority that has construed an insurance policy similar to the one in the instant action. Rather, both sides speak in terms of the following general legal principles with regard to construction. The general rules of construction which apply to other contracts equally apply to insurance contracts. (State Farm Mutual Automobile Insurance Co. v. Salerno (1984), 121 Ill. App. 3d 384, 459 N.E.2d 1075.) Where the language of the policy is clear and unambiguous, it must be given its plain, ordinary and popular meaning. (Johnson v. State Farm Mutual Automobile Insurance Co. (1979), 78 Ill. App. 3d 144, 396 N.E.2d 1190.) However, the question of whether a policy is ambiguous is a matter of law, in which the court examines the language at issue in light of the policy as a whole. (Ohio Casualty Insurance Co. v. Tyler (1980), 85 Ill. App. 3d 410, 407 N.E.2d 77.) In making its determination the court must construe the policy in its entirety, giving effect to every part of the policy as is possible, in-eluding endorsements. Weiss v. Bituminous Casualty Corp. (1974), 59 Ill. 2d 165, 319 N.E.2d 491.

The instant insurance policy is specifically entitled “Architects/ Engineers Professional Liability Policy.” Such a nonmedical professional liability policy is often called an “errors-and-omissions policy.” (See 7A Appleman, Insurance Law & Practice sec. 4504.01 (Berdal ed. 1979); Bettenburg v. Employers Liability Assurance Corp. (D. Minn. 1972) 350 F. Supp. 873.) This is a policy that provides “a specialized and limited type of coverage as compared to comprehensive insurance [general liability]; it is designed to insure members of a particular professional group from the liability arising out of a special risk such as negligence, omissions, mistakes, and errors inherent in the practice of the profession.” (7A Appleman, Insurance Law & Practice sec. 4504.01, at 310 (Berdal ed. 1979); see also Triunfol, Professional Liability of Architects and Engineers 1964 Ins. L. J. 461.) The language in the instant original insuring agreement provided MSA with the exact type of coverage as was described in Ap-pleman. However, a distinguishing characteristic to this professional liability policy is that it was also designed, as was provided in the schedule, to include MSA’s performance of services not customary for an architect or engineer, i.e., “life support” services. Thus, when the instant policy is viewed in its entirety, it is both a professional and general liability policy.

On appeal MSA contends that the endorsement to the policy explicitly defines and revises the policy coverage. MSA argues that the “negligent act, error or omission” clause in the original insuring agreement was deleted by the endorsement and that MSA’s conduct need not be negligent in order to be covered under the policy. MSA asserts that to continue to include the “negligent act, error or omission” clause in the policy as the trial court has done is to ignore the words, syntax and purpose of the endorsement.

With regard to the words of the endorsement, MSA contends that the original insuring agreement incorporated by reference the definition of professional capacity as contained in the schedule and that together, the agreement and the schedule included all the services covered under the policy. MSA argues that the second paragraph of the endorsement, in revising the coverage, retained as a requirement the performance of the same services as was contained in the original insuring agreement and the schedule, but conspicuously omitted the requirement with regard to a “negligent act, error or omission.” MSA contends that a fair reading of the plain language in the endorsement results in the deletion from the policy of the “negligent act, error or omission” requirement.

In further support of this position, MSA directs this court’s attention to the syntax of the original insuring agreement and the endorsement. MSA asserts that the original insuring agreement defined the legal liability for which Union Insurance agreed to pay on behalf of MSA and then placed two requirements upon “such legal liability.” These requirements were that “such legal liability [arise] out of the performance of [certain] professional services ***” and that “such legal liability [be] caused by a negligent act, error or omission of [MSA] ***.” MSA next asserts that the endorsement, using the exact phrase “such legal liability,” imposed only the first requirement for coverage, the scope of services, and was silent as to the “negligent act, error or omission” requirement. Thus, MSA argues that as a matter of grammar and logic, the endorsement necessarily served to delete the “negligent act, error or omission” clause.

Lastly, MSA contends that the language in the original insuring agreement and the language in the endorsement conflict and that based on Sentry Insurance v. Hogan (1982), 111 Ill. App. 3d 638, 640, 444 N.E.2d 761, “[i]f an insurance contract contains inconsistent or conflicting clauses, the clause which affords the greater or more inclusive benefit for the insured will govern.” Furthermore, an endorsement to an insurance policy controls over the conflicting terms of the original policy. (J. M. Corbett Co. v. Insurance Co. of North America (1976), 43 Ill. App. 3d 624, 357 N.E.2d 125.) MSA argues that the endorsement, interpreted to delete the “negligent act, error or omission” clause, provides broader coverage than does the original insuring agreement, which includes the above clause, and that given this conflict the endorsement should control.

Moreover, MSA argues based on Pierce v. Standard Accident Insurance Co. (1966), 70 Ill. App. 2d 224, 231, 216 N.E.2d 818, that “[t]he circumstances of the issuance of the policy and the object and purpose of the contract are significant and should be considered in determining whether there was coverage.” MSA asserts that the purpose of the policy was to provide liability insurance for MSA’s performance of its duties under the government air base contract and that the purpose of the endorsement was to tailor the terms of the policy to the particular features of that project. Thus, MSA contends that the trial court’s failure to find coverage undercut both the basic purpose and scope of the policy and endorsement.

Contrary to MSA’s assertion that the endorsement served to delete the “negligent act, error or omission” clause, we believe that in order to effectively construe the policy as a whole, it is necessary to retain the above clause. We agree that the original insuring agreement incorporating by reference the schedule provided the same list of services as did the second paragraph of the endorsement, but we further believe that because of the obvious conflict that existed prior to the endorsement with regard to the scope of services covered, the primary function of the endorsement was to alleviate this conflict by providing added clarity. Under this interpretation, the endorsement serves as the single provision listing the services covered, as opposed to looking at both the original insuring agreement and the schedule for such information, and it also expressly deletes the exclusion that caused the conflict.

Additionally, this court will look to the purpose of the policy. The instant insurance policy was issued to provide MSA with coverage in its performance of services in both its customary and noncustomary capacity as an architect and engineer. If this policy were interpreted to provide coverage without the negligence requirement, MSA would be able to recover for any and all actions it took in both its customary and noncustomary professional capacity, in effect creating an absolute performance bond. Such an interpretation is far too expansive and cannot be the logical construction for this policy. Therefore, we conclude that the trial court was correct in its construction of the instant policy.

MSA alternatively contends on appeal that Union Insurance has a duty to defend and indemnify MSA because the Nahal complaint, evaluated on its face, contains sufficient allegations of negligent conduct on the part of MSA to potentially meet the requirement of a “negligent act, error or omission.” MSA argues that the record reveals through an English translation of the Hebrew complaint that Nahal alleged that MSA failed to properly care for the property of the hotel and failed to maintain and to make necessary repairs as was agreed to in the lease. In response, Union Insurance maintains that the Nahal complaint is solely a breach of contract action and that it does not allege any “negligent acts, errors or omissions.” Union Insurance argues that the isolated phrases in the complaint that refer to negligence are nothing more than “gratuitous, conclu-sory statements which are superfluous” to the overall breach of contract action.

It is well established in Illinois that in determining whether the insurer owes a duty to the insured to defend an action brought against him it is the general rule that the allegations of the complaint determine the duty. If the complaint alleges facts within the coverage of the policy or potentially within the coverage of the policy, the duty to defend has been established. (Clemmons v. Travelers Insurance Co. (1981), 88 Ill. 2d 469, 430 N.E.2d 1104; Maryland Casualty Co. v. Peppers (1976), 64 Ill. 2d 187, 355 N.E.2d 24.) The threshold that the complaint must satisfy to present a claim of potential coverage is low. Where there is doubt as to coverage, it is to be resolved in favor of the insured. (McFadyen v. North River Insurance Co. (1965), 62 Ill. App. 2d 164, 209 N.E.2d 833.) Moreover, the insurer can safely and justifiably refuse to defend only when the allegations clearly show on their face that the claim is beyond policy coverage, for the duty to defend is broader than the duty to pay. La Rotunda v. Royal Globe Insurance Co. (1980), 87 Ill. App. 3d 446, 408 N.E.2d 928.

MSA cites Touchette Corp. v. Merchants Mutual Insurance Co. (1980), 76 App. Div. 2d 7, 429 N.Y.S.2d 952, a case that contains similar factual components as the instant matter. In Touchette, Tou-chette Corporation contracted with the plaintiff to provide certain services. Upon Touchette’s failure to perform the contract, the plaintiff asserted causes of action in both negligence and contract. Thereafter, the negligence count was dismissed, and Touchette’s insurer disclaimed any obligations to defend its insured on the ground that since the relevant policy was an errors-and-omissions policy and the negligence count was dismissed, the remaining contract count failed to allege any negligence to bring the claim within the policy’s coverage. In deciding whether the insurer had a duty to defend Tou-chette, the court held:

“It is not the form of the pleadings which determines coverage, however, it is the nature of the insured’s conduct and nothing in the language of the policy suggests that claims are to be covered only if sued in negligence. [The insurer] agreed to indemnify Touchette for all sums it is ‘legally obligated’ to pay because of its ‘negligent act[s], error[s], or omissionfs]’, and if Touchette’s conduct comes within this defined risk, it is no less ‘legally obligated’ to pay an award in a contract action than in a tort action. *** If the proof establishes that the breach was occasioned by a negligent failure to perform, the errors and omissions policy unquestionably provides coverage. [Citations.] If the failure to perform arises from some other cause coverage may not be available but that determination will have to await the trial of the action [Citations].” Touchette Corp. v. Merchants Mutual Insurance Co. (1980), 76 App. Div. 2d 7, 10, 429 N.Y.S.2d 952, 954.

Union Insurance has admitted in its brief that it knows of no decided Illinois case, nor have we found one, that has specifically determined whether a breach of contract action, as alleged in the Na-hal complaint, would be covered under the “negligent acts, errors or omissions” coverage. Instead Union Insurance relies on a series of older New York State cases which have all been expressly distinguished in the more recent Touchette case cited by MSA. Accordingly, having no controlling authority to consult, we are left to interpret the established law as it applies to the specific facts in the instant matter.

There is no question that the allegations of the complaint and not the theory determine whether there is a duty to defend. (Thornton v. Paul (1978), 74 Ill. 2d 132, 384 N.E.2d 335.) Thus, the proper focus for this court is on the allegations and whether they describe MSA’s conduct such that it is potentially within the policy’s coverage and not on the fact that the complaint sounds in contract.

The Nahal complaint alleges that MSA failed to properly maintain, repair and care for the hotel and its property. However, the language used does not indicate whether such failure was a result of negligent conduct on the part of MSA or whether it was an intentional or wilful disregard of its duties. What is apparent is that MSA’s conduct caused the lease to be breached and that given the circumstances, it is highly probable that such conduct was indeed negligent'. The general rule is that the facts alleged must be within or potentially within the policy coverage. (Clemmons v. Travelers Insurance Co. (1981), 88 Ill. 2d 469, 430 N.E.2d 1104.) There can be little doubt that MSA’s alleged conduct is potentially within the policy coverage, and if there is any doubt as to coverage, it is to be resolved in favor of MSA. Furthermore, as was stated in Touchette, “if the failure to perform arises from some other cause [other than negligent conduct] coverage may not be available but that determination will have to await the trial of the action.” Touchette Corp. v. Merchants Mutual Insurance Co. (1980), 76 App. Div. 2d 7,10, 429 N.Y.S.2d 952, 954.

We believe that the Nahal complaint sufficiently alleges facts which are potentially within the policy coverage and that Union Insurance therefore has a duty to defend MSA. However, on this declaratory judgment action, it is not appropriate to determine an ultimate issue of fact in the underlying action, that is whether MSA’s conduct was negligent, and therefore this court will not rule on whether Union Insurance has a duty to indemnify MSA. (See Maryland Casualty Co. v. Peppers (1976), 64 Ill. 2d 187, 355 N.E.2d 24.) Accordingly, we reverse the trial court’s judgment in favor of Union Insurance and remand the action and order that a judgment be entered in favor of MSA declaring that Union Insurance is obligated to defend MSA against the Nahal complaint.

MSA raises several other additional issues on appeal. MSA contends that an Israeli attorney’s affidavit describing the Nahal complaint as alleging a negligent count under Israeli law serves a further support for finding coverage and that Union Insurance should be estopped from denying coverage as a result of its unjustifiable refusal to defend MSA. Given this court’s determination to reverse the instant matter and to order Union Insurance to defend MSA, we do not find it necessary to reach the merits of MSA’s additional arguments.

For the foregoing reasons, this matter is reversed and remanded.

Reversed and remanded.

LINN, P.J., and JOHNSON, J., concur.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    Equilease Corporation, Plaintiff-Appellee, v. Cattlemen’s Freezer Meats, Inc., Defendant-Appellant.
    (No. 57922;
    First District (1st Division) —
    June 18, 1973.

      PER CURIAM.
    BURKE, P. J., took no part.
    Equi, Farwell, Rickelman & Proteau, of Oak Park, (William F. Rickelman, of counsel,) for appellant.
    Gale L. Marcus, of Chicago, for appellee.
   PER CURIAM:

Equilease Corporation, plaintiff, brought an action against Cattlemen’s Freezer Meats, Inc., also known as Cattlemen’s Quality Meats, Inc., defendant, to recover the balance due under the terms of a lease agreement for certain equipment. A summary judgment was entered in favor of the plaintiff for $1023.09 and costs.

The question presented for review is whether there was a genuine issue as to any material fact thereby making the entry of the summary judgment improper. The law on summary judgment is well settled.

Section 57(3) of the Civil Practice Act (Ill. Rev. Stat. 1971, ch. 110, par. 57(3) provides that a summary judgment should be rendered “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 or decree as a matter of law."

A summary judgment is a drastic method of disposing of litigation and the right of a party to invoice the remedy must be free from doubt. (Lumbermen’s Mutual Casualty Co. v. Poths (1968), 104 Ill.App. 2d 80, 243 N.E.2d 40.) It is not a trial by affidavit. (Watkins v. Lewis (1968), 96 Ill.App.2d 182, 188, 237 N.E.2d 830.) Affidavits in support of a motion for summary judgment should be strictly construed and must leave no question as to the movant’s right to judgment, whereas opposing party’s counter-affidavits should receive a liberal construction. (American Nat. Bank & Trust Co. v. Lembessis (1969), 116 Ill.App.2d 5, 253 N.E.2d 126.) The purpose of a summary judgment procedure is to determine whether there is a genuine issue of material fact, not to try it. (Standard Oil Co. v. Lachenmyer (1972), 6 Ill.App.3d 356, 360, 285 N.E.2d 497, 500; Gabriel v. Suess (1973), 10 Ill.App.3d 178 (Abst.), 294 N.E.2d 88.) Thus, the inquiry of the court should be whether the pleadings and affidavits considered by the trial court disclose a genuine issue as to any material fact and if they do not, whether the plaintiffs are entitled to judgment as a matter of law.

Applying the foregoing law to the facts in the case at bar, it is apparent that genuine issues of material fact do exist. The lease agreement attached to the complaint as Exhibit 1 discloses many apparent changes and alterations. The address of the alleged lessee, Cattlemen’s Freezer Meats, Inc., has been changed from 850 West Madison Street, Oak Park, Illinois, to 4955 Dempster Avenue, Skokie, Illinois. The bank of the lessee has been changed from the National Bank of Austin to the First National Bank of Skokie. The name of the lessee at the bottom of the lease agreement has apparently been changed from Cattlemen’s of Skokie, Inc., to Cattlemen’s Freezer Meats, Inc. The signature of William David Evans as the authorized signature for the Equilease Corporation has been nullified and the name Albert Frangí substituted therefor. The answer of the defendant of the plaintiffs interrogatories filed May 27, 1971, and the defendant’s answer and affidavit to the motion for summary judgment filed September 10, 1971, state that the defendant did not sign the lease agreement and never had possession or control of the equipment described in the lease agreement; that the lease agreement was not signed on behalf of the Cattlemen’s Freezer Meats, Inc., but rather on behalf of Cattlemen’s of Skokie, Inc.; that the leased equipment was never delivered to the defendant’s address at 850 West Madison Street, Oak Park, Illinois, because the lease agreement shows upon its face that it was delivered to 4955 Dempster Street, Skokie, Illinois; that the defendant never saw said equipment; and the defendant never made any payment to the plaintiff.

In the affidavit of William David Evans, filed February 9, 1972, he stated that at the time he affixed his signature to the lease agreement he did so on behalf of Cattlemens of Skokie, Inc., and not on behalf of the defendant, Cattlemen’s Freezer Meats, Inc. The answer of the defendant to the motion of the plaintiff for summary judgment, filed February 9, 1972, stated that the plaintiff is not entitled to a summary judgment because “there is a general [sic] issue of a material fact in dispute, namely, as to whether or not the contract shown as Plaintiff’s Exhibit 1 was, in fact, executed on behalf of the defendant corporation, when on its face said contract appears to have been altered.”

In addition, there are photostatic copies of checks payable to Equilease Corporation issued pursuant to the lease agreement. The cancelled check dated January 9, 1969, was issued by Falcon Enterprises, Inc., a holding corporation for Cattlemen’s of Skokie, Inc., and the three other cancelled checks for subsequent payments were issued by Cattlemen’s of Skolde, Inc.

Finally, the affidavits of Harold D. Hill should be reconciled. On January 27, 1972, the affidavit of Harold D. Hill was filed by the plaintiff in which he stated that on January 20, 1969, he was employed by Cattlemen’s Freezer Meats, Inc. as manager of its Oak Park office, located at 850 West Madison Street, Oak Park, Illinois, and that he received certain equipment on that date as described in Exhibit 1 and that he signed a receipt therefor. A subsequent affidavit of Harold D. Hill was filed on February 15, 1972, in which Hill stated “that on January 20, 1969, when he received certain equipment described in Plaintiff’s Exhibit 1, he received said equipment on behalf of Cattlemen’s of Skokie, Inc.”

The record does not show the disposition of plaintiff’s motion to strike the answer to the interrogatories of May 6, 1971, or the disposition of the plaintiffs motion filed January 27, 1972, to strike certain portions of the answer and plaintiffs motion to strike and dismiss the counterclaim.

The plaintiff argues that the defendant is estopped to assert the defense that it did not execute the lease agreement because the defendant was the real party in interest. Whether the defendant was the real party behind the transaction is a question of fact. (Joseph D. Foreman & Co. v. Neri (1972), 6 Ill.App.3d 313, 315, 285 N.E.2d 528.) The plaintiff also argues that it is entitled to additional attorney’s fees and costs in accordance with the provisions of the lease agreement. These additional issues should also be decided by the trial court.

The pleadings and affidavits raise genuine issues as to material facts and, therefore, the trial court should not have entered an order for summary judgment. Smith v. Traveler’s Insurance Co. (1971), 131 Ill. App.2d 476, 266 N.E.2d 695.

The order of the trial court is reversed and the cause is remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded with directions.

Mr. PRESIDING JUSTICE BURKE took no part in the consideration or decision of this case.


author: Mr. PRESIDING JUSTICE DRUCKER

text:
    Norman J. Kukuk et al., Plaintiffs-Appellees, v. Checker Taxi Company et al., Defendants-Appellants.
    (No. 57390;
    First District (5th Division) —
    June 15, 1973.

      Rehearing denied July 25,1973.

      Jesmer and Harris, of Chicago, (Julius Jesmer and Ronald Jay Gold, of counsel,) for appellants.
    Palmer, Kipnis & Kahn, of Chicago, (Claude B. Kahn, of counsel,) for appellees.
   Mr. PRESIDING JUSTICE DRUCKER

delivered the opinion of the court:

Defendants appeal from an order entered on February 7, 1972, allowing plaintiffs’ amended petition under section 72 of the Civil Practice Act (Ill. Rev. Stat. 1971, ch. 110, par. 72) to vacate an order of October 13, 1971, striking plaintiff’s complaint and dismissing the personal injury action against the defendants. The sole issue raised on appeal is whether the court erred in granting the petition to vacate.

On January 14, 1971, plaintiffs, through their attorneys, Irwin M. Berkley and Maxwell Leib, filed a complaint asking for damages arising out of an automobile collision between a taxicab owned by defendant, Checker Taxi Company, and driven by defendant, Hawthorne Simpson, and an automobile occupied by the plaintiffs. The defendants filed an answer and on February 26, 1971, served interrogatories to be answered by plaintiffs within 28 days. (See Ill. Rev. Stat. 1971, ch. 110A, par. 213.) Plaintiffs failed to answer the interrogatories and on April 16, 1971, the court entered an order requiring plaintiffs to answer them within 28 days. Plaintiffs again failed to answer the interrogatories and on September 10, 1971, the' court entered an order again granting them 28 days within which to answer. On October 13 the plaintiffs having still failed to answer the interrogatories, an order was entered striking the complaint and dismissing the suit.

On November 22, 1971, the present counsel for plaintiffs filed a petition under section 72 requesting the vacatur of the October 13th order dismissing the suit. In relevant part the petition stated:

“3. That [this action] was originally referred by Irwin M. Berkley to Maxwell Leib and a disagreement has arisen between said attorneys; that said plaintiffs’ failure to respond to letters written to them by Attorney Leib resulted in said dismissal.
4. That said Interrogatories are prepared and are ready to be filed; that said plaintiffs have a good and meritorious [sic] cause of action and would be irreparably harmed if said case were not reinstated.”

An amended petition was filed on December 13, 1971, which stated:

“3. That in January, 1971, when * * * [this action] was originally filed, Maxwell Leib was an associate of Irwin Berkley, to whom the said Berkley referred various matters. This cause was originally filed by the said Maxwell Leib, who retained possession and control of said file in this matter. During April of 1971, a disagreement arose between # # Berkley and Maxwell Leib as a result of which numerous of Berkley’s files were delivered to the authorities of the Federal Government.

Although Berkley has made due and diligent efforts to reconstruct said files and to obtain the return thereof from the Federal government, he was unable to do so until subsequent to October 13, 1971.

4. That on October 21, 1971 * * * Berkley referred this matter to [present counsel] * * * for Petitioner herein.
5. That on November 10, 1971 [present counsel] Petitioner was able to obtain the file from Leib.
# # #
8. Plaintiffs did not answer interrogatories because, due to the conflict between Berkley and Leib, the plaintiffs did not respond to Leib’s letters and were not fully aware of the jeopardy which they faced.”

Plaintiffs filed a memorandum in support of the amended petition which stated that during April 1971 Leib came under investigation of the United States postal authorities; that Leib referred the authorities to Berkley; that in April 1971 the investigators seized numerous files of Berkley’s clients; that Berkley took immediate action to have said files returned and was eventually able to secure some portions of the files involved; that on October 21, 1971, Berkley referred the matter to the present counsel for petitioners; that when said counsel learned of the dismissal they immediately, on November 11, 1971, sent notice of a motion set for November 12, 1971, to the attorneys for the defendants seeking the vacatur of the dismissal; and that on November 12 counsel for petitioner was on trial in federal court and “although diligent effort was made to appear in connection with the notice of motion, counsel was unable to be present.” (As noted earlier, the initial section 72 petition was not filed until November 22, 1971.)

Counsel for defendants filed an affidavit in opposition to the petition wherein he stated that he had met with Richard Ciecka, the Assistant U.S. Attorney in charge of prosecuting Berkley; that Ciecka stated that Berkley’s secretary made photocopies of Berkley’s files and that access to the original files was available at all times.

After oral argument the court entered an order in which it found that “good cause was shown by the plaintiffs to grant the plaintiffs relief under Sec. 72 6 * The order further stated that the vacatur was conditioned upon the personal payment by the attorneys for the plaintiffs in the original action and in the instant action to defendants, of attorneys’ fees and costs incurred. The defendants refused to submit a schedule of fees and costs incurred and the court assessed such at $200. When this sum was deposited with the Clerk of the Circuit Court, the order vacating the dismissal was entered.

Opinion

Defendants contend that the court erroneously granted the petition to vacate. A petition under section 72 is a new action, i.e., it is not a continuation of the prior proceeding. (Ill. Rev. Stat. 1971, ch. 110, par. 72(2).) Like all other civil cases, the petition must state a good cause of action. Here, such would consist of, in part, factual allegations showing that the dismissal order was not entered because of the lack of due diligence of plaintiffs. Defendants argue that plaintiffs failed to allege facts showing the presence of due diligence. We agree.

In Danforth v. Checker Taxi Co., Inc., 114 Ill.App.2d 471, 253 N.E.2d 114, which we deem is controlling here, plaintiff filed suit against the defendant on February 20, 1967. The defendant filed its answer and on March 27, 1967, served plaintiff with interrogatories. Plaintiff failed to answer or object to the interrogatories within 28 days and on April 27, 1967, defendant served plaintiff with notice that the answers were overdue. Defendant then moved to dismiss the complaint and on August 4, 1967, the court entered an order requiring the interrogatories to be answered on or before September 1, 1967. Plaintiff still did not answer and on September 26, 1967, the court entered an order requiring answers to be filed by October 24, 1967. Plaintiff again failed to comply and on October 25, 1967, the court dismissed the suit. Plaintiff herself received only one notice of the foregoing events, and the remaining notices were sent to her attorney. In reversing the trial court’s order which granted the section 72 petition, the court stated at 475-476:

“To have a case tried on its merits is, of course, the desirable goal, but we must also have rules relating to procedure and even statutes of limitation. Courts are reluctant to dismiss suits for failure to comply with procedural rules and court orders intended to enforce them, but there are circumstances under which that must be done or the whole system will bog down. That which would best serve the interests of the dilatory party is not the only factor to be considered. The argument that fundamental fairness demands a trial on the merits might be persuasive if urged in the trial court before the expiration of the thirty day period, the current substitute for term time.
Disregard for procedural rules intended to expedite the disposition of litigation can only contribute to the problem those rules were designed to ameliorate. Considering the enormous backlog of cases confronting our courts, due primarly to the vast increase of personal injury litigation, we cannot be indifferent to procedural rules such as those here involved. A general understanding that section 72 was always available for relief regardless of neglect in failing to comply with court orders would add to the case load and penalize those who obey the court’s orders by subjecting them to further delay.”

See Till v. Kara, 22 Ill.App.2d 502, 508, 161 N.E.2d 363.

In the instant case plaintiffs’ attorneys in the original action repeatedly failed to comply with defendants’ requests to answer or object to the interrogatories as required by the Supreme Court Rules and by court order. Present counsel for the plaintiffs argue that plaintiffs should not lose their right to pursue their tort action to a final judgment on the merits due to the inaction of and the difficulties experienced by their attorneys. They correctly note that a petition under section 72 is directed to the equitable powers of the court. See Elfman v. Evanston Bus Co., 27 Ill.2d 609, 190 N.E.2d 348.

If the petition and amended petition alleged only acts of neglect on the part of the attorneys for plaintiffs in the initial action, we might be persuaded by this argument. However, both the initial and amended petition alleged that part of the reason for the continuous failure to respond to the interrogatories was the failure of the plaintiffs themselves to respond to letters from their attorney. We conclude that this fact when coupled with the repeated failures of plaintiffs’ counsel to make appropriate responses to defendants’ requests formed an insufficient basis upon which the court could properly vacate the default judgment of October 13, 1971.

Our conclusion gains support from the fact that the court conditioned the vacatur on the payment of $200 costs (incurred by defendants in the initial proceeding) by plaintiffs’ attorneys personally to defendants. This condition implicitly indicates that the court felt that plaintiffs’ attorneys, at least, had not acted with due diligence in attempting to avoid the entry of the default judgment and certainly tends to contradict the court’s finding that “good cause was shown by the plaintiffs to grant the plaintiffs relief under section 72 * *

The requirement of showing “due diligence” by the party seeking relief under section 72 seems to have been abrogated in some cases where equity and good conscience require it. (See Burkitt v. Downy, 102 Ill.App.2d 373, 242 N.E.2d 901; Business Assets Corporation v. Kors, 11 Ill.App.3d 52, 295 N.E.2d 535 (abst.).) But any such abrogation must be determined on a case by case basis. Here we feel it would be inappropriate.

The cases cited by plaintiffs are not on point. (Gillespie v. Norfolk & Western Ry. Co., 103 Ill.App.2d 449, 243 N.E.2d 27; Schwartz v. Moats, 3 Ill.App.3d 596, 277 N.E.2d 529; Gray v. Yellow Cab Co., 1 Ill. App. 3d 984, 273 N.E.2d 703; Smith v. Pappas, 112 Ill.App.2d 129, 251 N.E.2d 390.) Gillespie, Schwartz and Gray were not section 72 actions but were actions to vacate default judgments within 30 days of their entry, i.e., while the courts still retained jurisdiction over the initial cause. (Compare Danforth at 476; Johnson v, Chicago & Western In diana R.R. Co., (First Dist. No. 56911), (Ill.App.3d), (N.E.2d).) Smith is factually inapposite since there the failure of plaintiffs counsel to appear at a hearing on defendant’s motion to dismiss for failure of plaintiff to answer interrogatories was due to a previously arranged agreement by counsel for the parties.

In closing, we note that the imposition of $200 costs on plaintiffs’ attorneys personally as a condition of reinstatement was error. The sanction in question was for costs incurred by defendants due to violations of the discovery rules in the original action (see Ill. Rev. Stat. 1971, ch. 110A, par. 219(c) (vi)) and not the section 72 proceeding which as noted earlier is separate and distinct from the original action. Such sanctions might have been imposed in the original proceeding for the violation of discovery rules while that suit was still pending in the jurisdiction of that court, but we find no authority for their imposition in this section 72 proceeding.

The order of February 7, 1972, vacating the dismissal of this cause is reversed and the cause remanded with directions to deny plaintiffs’ section 72 petition and to require the clerk of the circuit court to return the $200 to the depositors thereof.

Reversed and remanded with directions.

ENGLISH and LORENZ, JJ., concur.


author: Mr. JUSTICE SEIDENFELD

text:
    Security Insurance Company of Hartford, Plaintiff, Counterdefendant, Third-Party, Plaintiff, Appellant, v. Julius Mato, Defendant, Counterplaintiff,—(David Toth, Defendant, and Dann Brothers, Inc., Third-Party Defendant, Appellee.)
    (No. 72-116;
    Second District —
    July 9, 1973.

      McKenna, Storer, Rowe, White & Haskell, of Chicago, for appellant.
    Diver, Ridge, Brydges & Bollman, of Waukegan, for appellee.
   Mr. JUSTICE SEIDENFELD

delivered the opinion of the court:

This is an appeal from a summary judgment rendered against Security Insurance Company of Hartford on its third-party complaint for indemnity from its general agent.

In the principal action, Security filed a declaratory judgment suit to determine whether it was obligated to provide insurance coverage to Julius Mato and David Toth for bodily injury and medical expense arising from an accident on June 20, 1965. The trial court entered a summary judgment in favor of the insurance company on the basis that no policy of insurance existed between it and Mato. In Security Ins. Co. of Hartford v. Mato (1969), 108 Ill.App.2d 203, we reversed and remanded for further proceedings. In accordance with our decision, the trial court entered a summary judgment in favor of Toth and Mato and denied the motion of Security for a summary judgment. Security then filed a third-party action against Dann Brothers, Inc., its general agent. Dann Brothers answered and set forth affirmative defenses; both parties filed motions for summary judgment and responsive pleadings; and the trial court entered judgment denying third-party plaintiff’s motion for summary judgment and granting the motion of the third-party defendant.

The third-party complaint alleges that in July of 1963, Mato purchased an insurance policy from Dann Brothers, general agents for the New Amsterdam Casualty Company (to whose rights third-party plaintiff has succeeded), to cover an automobile which he owned. The policy period was July 17,1963, to January 17, 1964, and subsequent renewals extended Mato’s coverage to January 17, 1965. The complaint alleges that on December 17, 1964, plaintiff sent Mato a notice of premium due reciting that failure to pay the premium by January 17, 1965, would terminate the policy; that on January 17, 1965, the policy lapsed for failure to pay the premium; and that on February 1, 1965, the company sent a lapse notice to Mato advising him that his policy had been terminated. It is alleged that copies of these notices were sent to Dann Brothers; that thereafter, in May of 1965, telephone conversations took place between Mato and Dann Brothers and an endorsement was sent by Dann Brothers to Mato; and that the conversations and endorsement created a binding contract to insure Mato. The complaint continues that on June 20, 1965, Mato was involved in an accident in which he and David Toth, a passenger in his car, were injured; that proceedings resulted in this court’s finding that a contract with the insurer had been created by Mato’s conversations with Dann Brothers; and that if plaintiff is liable to Mato it is only by the relationship of principal and agent and through the active negligence, unauthorized actions and breach of fiduciary duty and instructions of Dann Brothers. Specifically, the complaint alleges that defendant, in violation of known instructions and underwriting policies of New Amsterdam Casualty Company, negligently and without authority made an oral contract to insure Mato without obtaining an executed application; without determining that he had a valid driver’s license; without obtaining a check or other payment for the policy; without determining the current underwriting data on Mato; and without submitting application for a new insurance policy and paying the premium due on the policy to the company. It also charges defendant with preparing and sending to Mato a purported endorsement indicating a change of insured vehicle on a lapsed policy of insurance.

In its answer, defendant states that it has no knowledge of whether Mato’s policy lapsed or the insurance company sent the alleged notices to Mato. Defendant denied that copies of said notices were ever sent to it; that it had telephone conversations with Mato or sent Mato an endorsement which created a binding contract of insurance between plaintiff and Mato; and that it acted negligently or without authority.

Defendant filed an affirmative defense stating that the insurance company ratified all actions performed by its agent and that the company’s liability was the result of its own negligent acts and omissions; namely, failing to notify defendant of the alleged lapse of Mato’s policy after plaintiff had received notice of the endorsement and before the accident occurred; failing to notify Mato of a lapse until 16 months after plaintiff had notice of the endorsement; repeatedly representing to Mato after his accident that he had insurance; undertaking the investigation of the accident; undertaking the defense of the suit brought by Toth against Mato; and failing to assert an alleged defense to Mato’s claims for almost 15 months after the accident.

In reply, the insurance company admitted that it investigated the accident and undertook Mato’s defense, but denied all other allegations of defendant’s affirmative defense.

On appeal, plaintiff contends that the court erred in denying its motion for summary judgment and granting that of defendant because the pleadings establish that its liability was caused only by defendant’s unauthorized acts and failure to follow instructions, and that any negligence on its own part was passive as compared to defendant’s active negligence. Defendant argues that the pleadings show plaintiff’s liability to have been caused by its own active negligence; that contributory negligence bars recovery; and that the insurance company’s actions estop it from denying liability and constitute a ratification of the acts of its agent.

Whether either party is entitled to a summary judgment under the pleadings and supportive documents depends upon whether a genuine issue of material fact exists that would prevent the moving party from being entitled to a judgment as a matter of law. (Ill. Rev. Stat. 1971, ch. 110, par. 57(3).) See Powell v. R. J. Anderson, Inc. (1970), 124 Ill.App.2d 1, 5; Bd. of Education v. Green Valley Builders, Inc. (1973), 10 Ill.App.3d 235, 237.

The initial question raised by the pleadings is whether Mato’s policy lapsed on January 17, 1965. Plaintiff alleges that it had lapsed but defendant states that it is without knowledge and demands proof of the fact. This issue was not decided in the previous appeal. If the policy had not lapsed plaintiff’s liability would be based on the policy and not on any actions of defendant. Thus, a material question of fact preventing the entry of summary judgment for plaintiff is present, and the trial court’s denial of plaintiff’s motion is proper regardless of whether any other questions of fact exist.

However, even if the policy had lapsed, defendant would be entitled to a summary judgment if the record establishes as a matter of law that plaintiff ratified or is estopped to challenge defendant’s alleged unauthorized acts, or that plaintiff was actively negligent while defendant was only passively negligent.

Defendant argues that the insurance company ratified the actions of its agent. The legal principles involved are clear. Where an agent has acted outside the scope of his authority, a principal may ratify the act and render it obligatory on himself. The ratification may be either express or implied from the surrounding circumstances, and can be inferred from long acquiescence after notice; but it must arise from the acts or conduct of the principal. A principal may not be held to have ratified an unauthorized act unless he acts with full knowledge of all material facts. (Wing v. Lederer (1966), 77 Ill.App.2d 413, 418; Karetzkis v. Cosmopolitan Nat. Bank (1962), 37 Ill.App.2d 484, 490.) As between the principal and its agent, the conduct will be liberally interpreted in favor of ratification. Holmes v. Morris (1930), 341 Ill. 351, 358; Kantoff v. Sedlack Motor Sales, Inc. (1955), 8 Ill.App.2d 8, 12.

We cannot conclude that ratification was proved as a defense as a matter of law. Plaintiff was apprised of the fact that it might have a policy defense based on the claim that Mato’s policy had previously lapsed and that therefore defendant’s purposed endorsement was unauthorized. However, plaintiff’s representation to Mato that he was covered by insurance, its undertaking of his defense, and its failure until some 16 months after the accident to take an adverse position, while relevant to the issue of ratification, can also be accounted for on the theory that plaintiff felt legally bound by defendant’s action and therefore considered that a defense on the policy would be useless. The delay does not prove, as a matter of law, the plaintiff’s intention to ratify the alleged unauthorized acts of its agent. Wing v. Lederer (1966), 77 Ill.App.2d 413, 418. See also Manufacturers Cas. Ins. Co. v. Martin-Libreton Ins. A. (5th Cir. 1957), 242 F.2d 951, cert. den. 355 U.S. 870, 2 L.Ed.2d 76, 78 S.Ct. 121.

Moreover, even if plaintiff’s actions were said to constitute ratification as a matter of law, the defense would apply only to those acts of which Security had knowledge. The pleadings and our previous decision show only that plaintiff had knowledge that the poficy lapsed and that defendant in violation of instructions issued an endorsement on the policy. However, the third-party complaint charges defendant with violation of several other instructions, such as defendant’s failure to determine that Mato had a valid driver’s license, failure to determine the current underwriting data on Mato, and failure to obtain and execute an application. The pleadings do not show that plaintiff had knowledge of these acts, and plaintiff thus cannot be held to have ratified them.

Nor can we agree with defendant that the insurance company is estopped from seeking indemnity from defendant. In this connection, defendant argues that plaintiff is bound by our holding in Security Ins. Co. of Hartford v. Malo (1969), 108 Ill.App.2d 203, that its delay estopped it from disclaiming liability to Mato, and further argues that since plaintiff could have had its rights as to defendant determined in that action but did not, our holding is also res judicata on this issue.

The effect which a finding in the principal suit has on a subsequent indemnity matter was ruled upon in Preston v. National Broadcasting Company (1971), 133 Ill.App.2d 200, 272 N.E.2d 700, 702. An indemnitee who sues to recover from the indemnitor the amount paid in satisfaction of a judgment obtained against him by an injured person is bound by all findings without which the judgment could not have been rendered; and if the judgment in the earlier action rested on a fact fatal to recovery in the action over against the indemnitor recovery is denied in the action over. (See also Shell Oil Company v. Foster-Wheeler Corporation (E.D. Ill. 1962), 209 F.Supp. 931, 940, aff. 320 F.2d 591; Beetler v. Sales Affiliates, Inc. (7th Cir. 1970), 431 F.2d 651; Annotation, 24 A.L.R.2d 329, 330.) In our previous opinion we held that an oral contract of insurance existed by virtue of the meeting of minds between Mato and Dann Brothers as the general agent of the Security Insurance Company; and that the company was estopped from denying that insurance coverage existed when it sought to disclaim its liability some 16 months after it knew of its possible policy defense. While the previous judgment could have been rendered on the basis of either finding, the judgment was premised on both findings and thus both were necessary to the decision in the application of the Preston rule. Defendant is thus correct that plaintiff is bound by our finding that its delay estopped it from disclaiming liability to Mato.

However, the prior suit did not determine the rights of the parties against each other. Section 25 of the Civil Practice Act provides, “Within the time for filing his answer or thereafter by leave of court, defendant may by a third-party complaint bring in as a defendant a person not a party to the action who is or may be liable to him for all or part of the plaintiff's claim against him.” (Emphasis added.) (Ill. Rev. Stat. 1971, ch. 110, par. 25(2).) The purpose of this section is to avoid a multiplicity of actions and a repetition of proof by permitting a determination of all claims in a single action. (Miller v. DeWitt (1967), 37 Ill.2d 273, 278.) However, the section does not make it mandatory that a party seek indemnity in the original action. He still has the option to wait until he is found liable, and then file a third party complaint. (See Klatt v. Commonwealth Edison Co. (1964), 55 Ill.App.2d 120, 135-6, modified, 33 Ill.2d 481.) The insurance company, by exercising its right to wait until the determination of the original action before bringing the indemnity action, should not be held estopped.

Defendant also argues that the summary judgment in its favor was proper because the acts and omissions of the plaintiff which caused it to be held liable to Mato were not merely passive, but active.

We cannot conclude that defendant was only passively negligent, and plaintiff actively negligent, as a matter of law. The third party complaint alleges six specific acts of defendant which are stated to be in violation of known underwriting policies and instructions of the insurer. It is well established that a principal has a right of action against its agent for loss or damage resulting from the agent’s breach of duty or wrongful act (Thorp v. Gosselin Hotel Co. (1965), 65 Ill.App.2d 107, 111), and that if an agent disobeys the reasonable and lawful instructions of the principal, causing loss or injury to the principal, the agent is liable for such damages. (Spalding v. Heideman (1901), 96 Ill.App. 405, 408; Johnson v. Illini Mut. Ins. Co. (1958), 18 Ill.App.2d 211, 216. See also Manufacturers Cos. Ins. Co. v. Martin-Lebreton Ins. A. (5th Cir. 1957), 242 F.2d 951, 953, cert. denied, 355 U.S. 879, 2 L.Ed.2d 76, 78 S.Ct. 121; Annotation, 35 A.L.R.3d 907.) A question of fact is presented as to whose negligence was the primary cause of plaintiff’s liability to Mato.

Defendant’s further contention that contributory negligence on the part of the insurance company is an absolute bar to a recovery for alleged negligence of the general agent is without merit. It is well established that a third-party complainant can recover if it shows that its negligence bears only a passive relationship to the cause of the injury, while that of the third party defendant was active. Moroni v. Intrusion-Prepakt, Inc. (1960), 24 Ill.App.2d 534, 537.

We affirm that portion of the judgment below which denied third-party-plaintiff’s motion for summary judgment since there are genuine issues as to the material facts whether the policy of Mato had lapsed, whether the defendant was actively or passively negligent, and whether plaintiff ratified any of the alleged acts of the third-party defendant. That portion of the judgment below granting third-party-defendant’s motion for a summary judgment is reversed since the record below did not establish as a matter of law that Mato’s policy had not lapsed, that plaintiff was guilty of active negligence or that plaintiff ratified or is estopped as to all the allegedly unauthorized acts of the third-party defendant.

The third-party action is remanded for further proceedings consistent with this opinion.

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

GUILD, P. J., and T. MORAN, J., concur.

       Defendant is not bound by the previous decision since it was neither a party nor privy to the earlier action (Smith v. Bishop (1962), 26 Ill.2d 434, 438), and it had no notice nor opportunity to defend the suit (Sanitary Dist. v. U.S.F. & G. Co. (1946), 392 Ill. 602, 612; Palmer v. Mitchell (1965), 57 Ill.App.2d 160, 167-8).


author: Mr. PRESIDING JUSTICE GUILD

text:
    Jean Evans, Plaintiff-Appellant, v. Northern Illinois Blood Bank, Inc. et al., Defendants-Appellees.
    (No. 72-168;
    Second District —
    July 10, 1973.

      J. Daniel King, of King & McNamara, of Rockford, for appellant.
    Williams, McCarthy, Kinley, Rudy & Picha and Sype & Kaliveda, both of Rockford, for appellees.
   Mr. PRESIDING JUSTICE GUILD

delivered the opinion of the court:

Plaintiff has appealed the dismissal of her complaint which alleged strict liability in tort for the action of the defendants in furnishing blood that was defective in that it was incompatible. The trial court in its order of dismissal held that the complaint failed to state a cause of action. No evidence was taken. At the outset it is to be expressly noted that the discussion herein contained applies only to those actions arising prior to the effective date, July 2, 1971, of Ill. Rev. Stat. (1971), ch. 91, sec. 181-183.

In Cunningham v. Mac Neal Memorial Hospital (1970), 47 Ill.2d 443, 268 N.E.2d 897, the Supreme Court of Illinois held that a hospital which supplied defective blood to a patient who subsequently contracted serum hepatitis therefrom was engaged in the business of selling blood for transfusions within the doctrine of strict tort liability. The Supreme Court rejected the contention followed in a number of states that this was a service rather than a sale. Apparently, as a result of this decision the legislature in 1971 enacted an act declaring as a matter of public policy that the furnishing of blood for transfusions was a service and not a sale. (Ill. Rev. Stat. (1971), ch. 91, secs. 181-183.) The legislature thus limited any recovery to instances of negligence or wilful misconduct as a matter of public policy. The trial court properly held that the legislative determination contained therein was not applicable to the case at bar in that its effective date antedates the initiating of this action. This is the well-settled rule of statutory construction that:

“* * * Retroactive legislation is not favored, and as a general rule statutes are construed to operate prospectively unless the legislative intent that they be given retroactive operation clearly appears from the express language of the acts, or by necessary or unavoidable implications.” United States Steel Credit Union v. Knight (1965), 32 Ill.2d 138, 142, 204 N.E.2d 4, 6.

Plaintiff, Jean Evans, alleges that while a patient at Swedish-American Hospital Association, Inc. (hereinafter referred to as Hospital), in October, 1966, she received a transfusion of blood which was supplied by the Northern Illinois Blood Bank (hereinafter referred to as NIBB). This transfusion was administered by agents of the hospital and contained Kidd B antigen. Prior to this transfusion plaintiff’s system contained no antibodies which were sensitive to Kidd B antigen. During May, 1968, plaintiff entered the hospital for an operation. In connection therewith, plaintiff again received a blood transfusion administered by agents of the hospital, such blood being supplied by NIBB. The blood received contained Kidd B antigen, this being incompatible with the Kidd B antibodies set up in plaintiff’s blood as a result of the 1966 transfusion. The foregoing combination of Kidd B antigen with Kidd B antibodies brought about a transfusion reaction necessitating immediate medical procedures to cope therewith. As a result of the above two transfusions, plaintiff may not have future transfusions unless the blood used is free of Kidd B antigen.

The plaintiff contends that the blood transfusion received by her at the hospital was in an unreasonably dangerous condition, it was defective in that it was incompatible, such condition existing at the time the blood left the control of NIBB, and this unreasonably dangerous condition of the blood was the direct and proximate cause of serious injury to plaintiff.

The plaintiff in her original complaint alleged three counts: (1) breach of warranty, (2) negligence, and (3) strict liability against both the hospital and NIBB. Subsequently, the complaint was amended to a two-count amended complaint respectively against the hospital and NIBB based upon strict liability in tort. The leading case on strict liability in Illinois is Suvada v. White Motor Co. (1965), 32 Ill.2d 612, 623, 210 N.E.2d 182, 188:

“* * * The plaintiffs must prove that their injury or damage resulted from a condition of the product, that the condition was an unreasonably dangerous one and that the condition existed at the time it left the manufacturer’s control. See Tiffin v. Great Atlantic and Pacific Tea Co., 18 II1.2d 48.”

In Suvada the court also discussed and cited section 402A of American Law Institute’s revised Restatement of Torts approved in May, 1964.

The plaintiff relies principally upon the Cunningham case (47 Ill.2d 443) to support her right to recovery under the strict liability doctrine. We do not believe that Cunningham is authority for the principle that the plaintiff herein has stated a cause of action in her amended complaint. In Cunningham the court stated in discussing the complaint therein, at page 457:

“» # » It js alleged therein that a product (blood) was sold or supplied, for consideration, to the plaintiff by an enterprise which is in the business, albeit incidentally with regard to its principal function, of supplying such product, that the product contained a defect (serum hepatitis virus) at the time it left the hands of the hospital which rendered it unreasonably dangerous to the plaintiff, a consumer, and which proximately caused physical damage to her. All of the requirements set forth in Suvada have thus been met.”

In her complaint plaintiff alleges that the blood was defective in that it was incompatible. The argument of the plaintiff stated in another fashion is that it was defective not because it contained any impurity, but defective because it was incompatible as containing Kidd B antigens. The blood was, in fact, wholesome. Plaintiff has cited Davis v. Wyeth Laboratories Inc. (1968), 399 F.2d 121, in support of this position. We do not believe that that case is applicable. In Davis the plaintiff was administered polio vaccine by the Public Health authorities in the town of West Yellowstone, Montana. The administration was performed in a mass immunization clinic and dispensed by a pharmacist. The drug was a prescription drug to be dispensed only by a physician. Davis, after receiving the polio shot, became paralyzed from the waist down. The court reversed the decision of the trial court and held at page 128:

“* # # nere the fact that a product is dangerous does not result in strict liability if, on balance, public interest demands that it be made available notwithstanding its dangerous characteristics.”

and further held at page 129:

“There are many cases, however, particularly in the area of new drugs, where the risk, although known to exist, cannot be so narrowly limited and where knowledge does not yet explain the reason for the risk or specify those to whom it applies. It thus applies in some degree to all, or at least a significant portion, of those who take the drug. This is our case; there seems to be no certain method of isolating those adults who may be affected adversely by taking Type III Sabin vaccine.
In such cases, then, the drug is fit and its danger is reasonable only if the balance is struck in favor of its use. * * * [T]he drug can properly be marketed only in such fashion as to permit the striking of the balance; that is, by full disclosure of the existence and extent of the risk involved.”

The laboratory in that case had actively taken part in the setting up of the mass immunization clinics and knew of the proposed method of

innoculation. The court then held that the defendant was strictly hable in tort for failure to warn the user or consumer of the possible danger in the use thereof. This case is not authority for the contention of the plaintiff herein that a wholesome product may be defective to certain individuals who would react thereto nonetheless. The Davis case turned solely on the failure to warn the user thereof of the possible danger.

The plaintiff has also cited Zirpola v. Adam Hat Stores (1939), 122 N.J.L. 21, 4 A.2d 73, and Reynolds v. Sun Ray Drug Company (1947), 135 N.J.L. 475, 52 A.2d 666. Both of these cases were brought upon breach of an implied warranty by the defendant, not upon a strict liability theory, and the court held that whether there was a breach of implied warranty to the somewhat small number of the users of the product who would be harmed thereby was a matter for the jury. That, however, is not the theory of the case before us. The plaintiff chose to proceed on the strict liability theory herein, and while it may be contended that this is a question of semantics, the difference between the furnishing of whole blood by a hospital and a blood bank and the use of a drug or product sold in the open market having a harmful effect on certain individuals, is not analogous. These cases in substance, hold that a manufacturer may be held liable under a breach of implied warranty or negligence and not that he should be held liable under the doctrine of strict liability.

Likewise, we do not feel that the other cases cited by plaintiff covering contaminated food products are applicable herein. No useful purpose would be served in discussing the question of transfusions of incompatible blood arising in other jurisdictions. Those cases, varying from State to State, are primarily based on the doctrines of res ipsa loquitor, negligence or breach of warranty. The only case that we are conversant with dealing with strict liability in tort in the furnishing of incompatible blood is that of Baptista v. Saint Barnabas Medical Center (1971), 57 N.J. 167, 270 A.2d 409, affirming 109 N.J.Super. 217, 262 A.2d 902, cited by defendants. There, the New Jersey court held as a matter of policy that the furnishing of alleged incompatible blood did not give rise to an action under strict liability or breach of warranty. However, this ruling was based, as counsel for plaintiff points out, on the doctrine that the furnishing of blood is a service, not a sale, which is not the situation in the case before us.

Plaintiff would have us extend the doctrine enunciated in Cunningham, i.e., the hospital is liable under the doctrine of strict liability for the furnishing of blood containing a foreign substance, to-wit: serum hepatitis, to the situation where the blood is “defective in that it was incompatible.”

We hold that the trial court was correct in stating that the complaint “as amended, fail[ed] to state a cause of action against the respective defendants therein, for the reason that said counts purport to state a cause of action based on strict liability, but the allegation of blood incompatibility does not constitute a defect in the blood, the product in question.”

The judgment of the trial court is affirmed.

Affirmed.

SEIDENFELD and T. MORAN, JJ., concur.


author: Mr. JUSTICE STOUDER

text:
    Mississippi Meadows, Inc., Plaintiff-Appellee, v. Gary F. Hodson, Defendant-Appellant.
    (No. 72-174;
    Third District —
    July 17, 1973.

      Katz, McAndrews, Durkee & Telleen, of Rock Island, (John Telleen, of counsel,) for appellant.
    Jackson & Douglas, of East Moline, (Marshall Douglas, of counsel,) for appellee.
   Mr. JUSTICE STOUDER

delivered the opinion of the court:

Plaintiff-Appellee, Mississippi Meadows, Inc., brought this action against Gary Hodson, Defendant-Appellant, in the Circuit Court of Rock Island County to recover damages allegedly caused by the negligence of defendant. Plaintiff, a contractor who submitted the successful bid for construction of an eleven building apartment complex, entered into a contract with the owner of the real estate, Prince Hall Village, Inc., based on plans and specifications prepared by defendant. Under plaintiff’s theory of the case, defendant’s plans and specifications were followed; however, due to defendant’s errors and omissions therein, plaintiff was required to make changes in the construction requiring materials and labor in addition to those originally contemplated, the expense of which plaintiff was required to bear.

Plaintiff’s action was predicated on eleven claims of negligence; however, only three of these were submitted to the jury. The jury returned a verdict in favor of plaintiff for $30,000 upon which the trial court entered judgment. The three claims were based on a breach of defendant’s duty to prepare plans conforming to existing topography and complying with existing building regulations. More specifically, it is alleged that defendant’s “error in topography” required plaintiff to obtain extra fill and foundation extensions in order to comply with the city building codes and the defendant’s plans failed to provide for steel plates in all headers on exterior walls requiring plaintiff to install plates to comply with city building codes.

The principal assignments of error on this appeal relate to the sufficiency of the evidence. Defendant’s principal contention is the evidence is insufficient to raise a jury question or support the jury’s verdict in accord with the Pedrick rule. Consequently, according to defendant, the trial court erred in refusing to direct a verdict in his favor and in failing to grant his motion for judgment notwithstanding the verdict.

According to paragraph 8(a) of the complaint, “Defendant’s error in topography required plaintiff to obtain and place 2,132 cubic yards of fill dirt and 1,610 cubic yards of grandular sand mixture upon the constraction site in order to comply with City Building Regulations for frost lines.” Paragraph 8(e) of the complaint alleges: “Defendant’s error in topography required plaintiff to install foundation extensions on all buildings and change the exterior grades to comply with city building regulations for frost lines.” These allegations of negligence are each based on the same claimed misconduct namely, the negligence of defendant Hodson in the preparation of the topography plans submitted to plaintiff, which were the basis of the contract for the construction project.

An architect’s efficiency in preparing plans and specifications is tested by the rule of ordinary and reasonable skill usually exercised by one in that profession. (See Annot., 25 A.L.R.2d 1088.) The duty of an architect depends upon the particular agreement he has entered with the person who employs him and in the absence of a special agreement he does not imply or guarantee a perfect plan or satisfactory result; rather, he is only liable if he fails to exercise reasonable care and skill. 5 Am.Jur.2d, Architects, Sec. 8.

In reviewing the complaint it should be noted plaintiff fails to describe the alleged error or in any way specify ultimate facts which constitute any particular error by defendant. Also, the complaint fails to specify the code or the section of a code involved or any duty set forth by a code which was allegedly violated by defendant’s topographical plan. Not only do the allegations of negligencé in the pleadings appear to be inadequate, but also the instructions given to the jury, which are worded similarly to the complaint, must have been confusing. Indeed it is difficult to understand how the jury could measure the defendant’s conduct to determine the existence of negligence without being told what specific errors in topography allegedly were made by defendant or which building code or section thereof was allegedly violated.

Verbeke, a licensed surveyor testifying in behalf of defendant, described his activities in 1966 at which time he ascertained and laid out the boundaries and elevations of the area of the construction site. He prepared a survey of the area using as a reference point to determine elevations, the top of a fire hydrant located on the north line of the property. The top of the fire hydrant was the bench mark or reference point from which the relative elevations of various points on the property were ascertained. In the survey the bench mark was arbitrarily described as “100” and both contour lines and grid points were described in relation to the bench mark. On the survey grid points were designated at intervals of 100 feet. Contour lines were shown in one foot intervals designated with reference to the bench mark of “100”, all points along each line being of the same elevation. There were contour lines indicating elevations such as 100, 99, 98, 97 and 96. In describing the meaning of the contour Hnes, the witness indicated the area between Hnes gradually increased or decreased in elevation depending on whether the change in elevation was considered with reference to the smaHer numbered line proceeding to the higher numbered line or in the reverse. Verbelce testified that he rechecked his survey in 1968 and it was the same as in 1966. Grid points were designated in fractional feet such as 96.94, and consequently did not necessarily appear on' the contour lines which were described in terms of whole numbered feet. This witness had examined the plans prepared by the defendant which were submitted to the plaintiff and testified the topography plan was substantially the same as his survey except the grid points were not included on the defendant’s plan. He also referred briefly to a second pagó of the topography plans, referred to as a grading site improvement plan, which reflected the finished contour lines. Except for describing and interpreting the meaning of the points and lines on his own survey and indicating the defendant’s plans did not include the grid points, this witness offered no testimony either on direct examination or cross examination concerning the significance or effect of failure to include the grid points and offered no testimony whether it was or was not necessary to include such points on the plan.

According to the plaintiff, because defendant did not include grid points, it was required to provide substantial amounts of dirt and sand for fill which it could not determine were required from the plans. Because of the additional sand and dirt fill the depth of the foundation had to be increased requiring more concrete and labor. Grading and excavation by a subcontractor of the plaintiff had been in progress for several weeks before plaintiff voiced its complaint that more fill would be required than it had expected. Consequently, a significant portion of the testimony concerned the peripheral issues of whether the subcontractor had removed part of the dirt and whether he had removed too much of the dirt. Such evidence had no significant bearing on the issue of defendant’s misconduct and was more directly related to the question of damages on the assumption plaintiff might be entitled to a recovery.

The gist of plaintiff’s claim is the topographical plan prepared and submitted by defendant was contrary to the actual topographical facts and defendant’s error in the plan upon which the plaintiff refied caused plaintiff to be required to provide more fill than would have been the case had not the error occurred. Even if the grid points of the surveyor were not included in defendant’s topographical plan, the question remains whether the defendant should have included such points. In other words, were such points necessary to enable the plaintiff or any other contractor to determine how much fill, if any, was required? The question of necessity has a peculiar application in this case. If the grid point specifications were unnecessary, it would follow that the failure to include such points could not have proximately caused plaintiff’s alleged damages and the failure of defendant to include such points could not support an inference of negligence. However, even if the specification of grid points was necessary to determine the amount of fill required, the question immediately arises as to how plaintiff could have or did determine the amount of fill required, if the plan did not contain the information which plaintiff now asserts is essential to such determination. The full import of these conclusions is demonstrated by the evidence. Initially, it should be noted there is no expert opinion regarding standards of conduct concerning the inclusion of grid points on the plan. Rather plaintiff sought to buttress its claim that extra fill is required merely on the failure to specify grid points without any evidence of cause and effect. Although there is substantial evidence of the amount of fill and concrete work which plaintiff provided, there is an entire failure of evidence regarding how much fill, if any, would be required based on the plan as submitted. Putting the matter another way, plaintiff has failed to show his calculations or estimates of the amount of fill which would be required were in any way adversely affected by the alleged error in the plans. Consequently, plaintiff’s belief that more fill was required than it expected or more concrete required because of the additional fill cannot be considered the result of any error, misconduct or negligence on the part of defendant.

The other principal assignment of error on this appeal relates to paragraph 8(c) of the complaint, which is one of the claims submitted to the jury, wherein it is stated: “Defendant’s plans and specifications failed to provide for steel plates in all headers on exterior walls bearing roof and floor loads and plaintiff was required to furnish material and labor to install said plates as required by city building codes.” Again we point out an allegation which is vague as to defendant’s wrongdoing and which fails to specify the code or the section of the code violated.

Two witnesses testified for tire plaintiff regarding the charge relating to wall construction, Stauduhar, president of plaintiff company and Eggert, field foreman for plaintiff company. Also, defendant Hodson was called as an adverse witness under Sec. 60 of the Civil Practice Act and also he testified on his own behalf on this issue. For the defendant, Hawks, a structural engineer, and Rittenhouse, an employee of defendant, testified. From the testimony of these witnesses, it is undisputed the original plans and specifications provided for split level trusses which were the basis for the original contract. Plaintiff proposed a change to full span trasses when it discovered there was a track large enough to transport material to the construction site, even though substantial expense had been incurred in constructing the inside center wall. Defendant concurred with the change and plaintiff secured the change of the engineering design by Twin States Component Company, the company which pre-engineered the construction of all of the component framing. The original plan provided for two 2x6 headers over the first floor window openings and two 2x8 headers for the second floor window openings. The change provided for 2 x 10 headers with bolted steel on the first floor and 2 x 12 headers with bolted steel on the second floor. Plaintiff claims the difference between the price of the headers specified in the original plan and those actually installed was damage resulting from the negligence of defendant. We find no merit to the claim.

It seems to be plaintiffs contention that because the headers were changed from those originally specified in the plans and because such change was made with the knowledge of defendant, some inference of negligence is warranted. Since the change in headers was part of a change in spans resulting in a substantial increase of the load to be borne by the outside walls, the increase in size of headers has no tendency to show the headers as originally described were improper or of insufficient strength, when a part of the load was supported by a center wall.

Not even the “Code” referred to in the allegation offers any support for plaintiffs claim. At the close of plaintiffs evidence defendant’s motion for directed verdict was argued and allowed on all allegations of negligence except the three discussed in this opinion. However, after the decision on the directed verdict motion, plaintiff was permitted to recall Stauduhar, president of plaintiff company, and he referred to a provision of the Uniform Building Code adopted by the City of Rock Island as its building code, which is claimed to be the basis of the negligence charged. The witness quoted sec. 2506B, Sub Paragraph 12 of the Code as follows:

“* * * all openings 4 feet wide or less in bearing walls shall be provided with headers equivalent to double headers not less than 2 inches thick placed on edge securely fastened together and all openings more than 4 feet wide shall be trussed or provided with headers or lintels. Such headers or trusses shall have not less than 2 inches solid bearing at each end to the floor or bottom plate unless other approved framing or joint devices are used.”

Although this is the provision of the Code, apparently claimed to be violated, there is an entire absence of evidence that the headers originally described violated this provision of the Code. On the contrary, the only evidence relates to compliance with the Code so far as the installed headers are concerned and the conclusion such headers were appropriate and required because of the loading on the walls. Such conclusion wholly ignores that increased wall loading resulted from the change in spans.

Hawks, the structural engineer, testified as an expert regarding the original plan and concluded that in his opinion the original plans were “acceptable”. On cross examination in a welter of confusion, the witness suggested there was some discrepancy, in the plans but the nature of the discrepancy cannot be determined from his testimony or the exhibits and whatever the discrepancy, there was no effort made to show its relevance to a violation of duty of defendant. Nowhere in cross examination is there even an intimation that the headers installed by the plaintiff would have been required in the original plan. Without such showing no violation of the defendant’s duty may be inferred. At best, the evidence on this subject indicates the heavier or more substantial header was an incident to the change in span design. While under proper circumstances such change might have justified additional charges from the owners if the owners had agreed thereto, it does not support a claim of misconduct by defendant.

In our opinion, the evidence is insufficient as a matter of law to support the jury’s verdict and the judgment entered thereon. It is therefore unnecessary to consider defendant’s other assignments of error.

Accordingly, the judgment of the Circuit Court of Rock Island County is reversed.

Judgment reversed.

ALLOY, P. J., and DIXON, J., concur.


author: Mr. PRESIDING JUSTICE ALLOY.

text:
    John E. Krynski, Plaintiff-Appellant, v. Robert S. Martin, Defendant-Appellee—(Robert S. Martin, Third-Party Plaintiff-Appellee, v. Dan Krynski, Third-Party Defendant-Appellant.)
    (No. 73-6;
    Third District —
    July 17, 1973.
    Durward J. Long, of East Moline, for appellant.
    Theodore A. Jackson, of East Moline, for appellee.
   Opinion by

Mr. PRESIDING JUSTICE ALLOY.


author: Mr. PRESIDING JUSTICE CRAVEN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Melvin D. Campbell, Defendant-Appellant.
    (No. 11917;
    Fourth District —
    July 12, 1973.

      John F. McNichols, of Defender Project, of Springfield, (J. Daniel Stewart, of counsel,) for appellant.
    Basil G. Greanias, State’s Attorney, of Decatur, (Scott B. Diamond, Assistant State’s Attorney, of counsel,) for the People.
   Mr. PRESIDING JUSTICE CRAVEN

delivered the opinion of the court:

In a jury trial, defendant was found guilty of aggravated battery. He was sentenced to 1-3 years in the penitentiary. On appeal defendant contends that he was denied a fair and impartial trial due to the prosecutors prejudicial closing argument. In addition, he contends that the jury was given a conflicting set of instructions. The offense arose from an incident which took place on the evening of October 31, 1971, in the Macon County jail. Defendant, along with four other men, was taken to the jail for booking and was told to go to the “bullpen”, which was a room containing a television and chairs where the men were to await being processed into their cells. When defendant became unruly, the deputy attempted to move him to an isolation cell, and a fight broke out between the two men. The bulk of the testimony in the record relates to the question of which man started the altercation. A detailed discussion of the evidence is not necessary in order to consider the issues raised on appeal.

We will consider first the assertion that the argument was prejudicial. In general, counsel may not make comments calculated to create, arouse, or inflame the sympathies, prejudices, or passions of the jury to the detriment of an accused. Tactics such as these produce no benefit for the State since a conviction will not stand where it appears that the jury’s verdict may have been influenced by improper argument. (People v. Naujokas, 25 Ill.2d 32, 182 N.E.2d 700.) In considering whether improper argument constitutes prejudicial error, the reviewing court will determine whether the verdict of the jury would have been otherwise had the improper remarks not been made. People v. Davis, 46 Ill.2d 554, 264 N.E.2d 140.

There are three objections to the State’s closing argument. First, the prosecutor stated: “* * * [I]t is Willis Coleman’s duty to make sure that the prison doesn’t have a riot such as we have heard about in the news lately.” Defense counsel’s general objection to this statement was sustained without further comment by the court. This comment apparently referred to prison riots of September 1971, the mention of which was irrelevant to the issue of defendant’s guilt. However, the objection was sustained, and in light of the overwhelming evidence against defendant, it cannot be said that the jury’s verdict was affected by this remark.

Second, defendant contends that the state’s attorney erroneously appealed to the sympathy and fears of the jury when he said: “And I ask you what you would do if you were in that position and ask you if this is the kind of conduct you want to go on when you have to control as many prisoners as he does.” However, no objection was made at the time of trial nor was it asserted as error in defendant’s post trial motion. It is an accepted principle of law that an issue not raised in the trial court cannot be raised for the first time on review. People v. McAdrian, 52 Ill.2d 250, 287 N.E.2d 688.

Third, defendant claims that it was error to overrule his objection to the prosecutor’s statement of the law of aggravated battery: “I don’t think anybody says he has got a right to struggle with a deputy. That is aggravated battery right there.” The court determined that it constituted proper argument. The judge alone may instruct the jury as to the law in a given case; thus, where counsel instructs as to the law, he has invaded the province of the court. (People v. Wright, 80 Ill.App. 2d 300, 225 N.E.2d 460.) It is, however, proper argument for a prosecuting attorney to draw inferences unfavorable to the defendant if those inferences are based on the evidence. (People v, Williams, 26 Ill.2d 190, 186 N.E.2d 353; People v. Eastland, 11 Ill.App.3d 271, 296 N.E.2d 363.) We agree with the ruling of the trial court.

Finally, defendant contends that the jury was given a conflicting set of instructions requiring reversal of the conviction. (Hoge v. People, 117 Ill. 35, 6 N.E. 796.) He asserts that the definitions of battery and aggravated battery (I.P.I. Criminal Instructions 11.05 and 11.09) should have contained the phrase “without legal justification”. However, the trial court gave I.P.I. Criminal Instructions 24.06, 24.09, and 24.11 on the justifiable use of force. In addition, Instruction 11.10 was given which informed the jury that to sustain a charge of aggravated battery, the state must prove that the defendant was not justified in using the force he used. No single instruction is required to state all of the relevant law on a single subject, but it is sufficient that the instructions as a whole adequately inform the jury as to the law. (People v. Mills, 40 Ill.2d 4, 237 N.E.2d 697; People v. Jackson, 116 Ill.App.2d 304, 253 N.E.2d 527.) Here, the court followed the Illinois Pattern Jury Instructions to be used in criminal cases, and they sufficiently stated the law of aggravated battery.

The judgment of the circuit court of Macon County is affirmed.

Judgment affirmed.

SIMKINS and TRAPP, JJ., concur.