author: PRESIDING JUSTICE KARNS

text:
    GEORGE GODARE, Plaintiff-Appellee, v. STERLING STEEL CASTING CO., Defendant-Appellant.
    Fifth District
    No. 81-107
    Opinion filed December 23, 1981.

      J. F. Schlafly and John F. Schlafly, Jr., both of Schlafly, Godfrey & Fitzgerald, of Alton, for appellant.
    C. E. Heiligenstein and Brad L. Gadgley, both of Belleville, for appellee.
   PRESIDING JUSTICE KARNS

delivered the opinion of the court:

Plaintiff, George Godare, brought this action in the Circuit Court of St. Clair County to recover pension benefits allegedly due from his former employer, Sterling Steel Casting Co. Defendant filed a counterclaim alleging that the complaint was subject to a mandatory arbitration procedure pursuant to a provision in the pension agreement. The trial court dismissed the counterclaim and on appeal we affirmed, holding that the Uniform Arbitration Act (Ill. Rev. Stat. 1979, ch. 10, par. 101 et seq.) was not applicable to the proceedings. (Godare v. Sterling Steel Casting Co. (1981), 96 Ill. App. 3d 601, 421 N.E.2d 925.) On remand, the circuit court of St. Clair County entered judgment for the plaintiff and awarded him compensatory damages, prejudgment interest and punitive damages, finding that the decision of the Illinois Industrial Commission awarding plaintiff compensation for total and permanent disability, which ¿ward was confirmed by the circuit court and affirmed by the supreme court was res judicata as to the instant controversy. From that judgment, defendant takes this appeal.

On appeal, Sterling Steel denies that the award of workmens compensation is res judicata with respect to plaintiff’s entitlement to a pension. Defendant also denies that plaintiff has fulfilled the necessary conditions precedent for eligibility under the collectivély bargained pension plan and denies that the trial court properly awarded prejudgment interest and punitive damages.

Plaintiff injured his back during the course of employment on July 10, 1975. At the time, plaintiff was an employee of defendant and a member of the United Steel Workers of America Local 1095, AFL-CIO. Plaintiff had been in defendant’s employ for over 25 years and was 54 years of age at the time of his injury.

After leaving his employment, plaintiff filed an application for workmen’s compensation benefits. He was examined by Dr. Lloyd Hill, an orthopedic surgeon, on May 20, 1976. Dr. Hill was of the opinion that plaintiff was permanently disabled from doing any work requiring physical labor. On July 7,1976, a hearing was held before an arbitrator of the Illinois Industrial Commission. On July 9,1976, the commission found that the plaintiff suffered from a total and permanent disability. This decision was affirmed by the Illinois Supreme Court. (Sterling Steel Casting Co. v. Industrial Com. (1979), 74 Ill. 2d 273, 384 N.E.2d 1326.) Defendant has made all workmen’s compensation payments to plaintiff in full compliance with the decision of the Industrial Commission.

On October 26, 1977, plaintiff applied for a disability pension pursuant to the pension plan between the Steel Workers Union and defendant. This plan has been in effect since 1957 and has been periodically amended to reflect increases in the amount of benefits payable.

Paragraph 2, section I of the pension agreement provides that an employee with 15 years of continuous service who, through some unavoidable cause, becomes “permanently incapacitated,” shall be entitled to a disability pension. “Permanently incapacitated” is defined in the same section and paragraph as follows:

“a) if he has been totally disabled by bodily injury * 19 * so as to be prevented thereby from engaging in any occupation or employment for remuneration or profit and,
b) after such total disability shall have continued for a period of six consecutive months and, in the opinion of a qualified physician, it will be permanent and continuous during the remainder of his life # e # »

Paragraph 2, section I, also provides:

“* * ° such pension for permanent incapacity shall continue only so long as such petitioner shall be permanently incapacitated. The permanency of incapacity may be verified by medical examination prior to age 65 at any reasonable time.”

Paragraph 2, section V, provides:

“If any difference shall arise between the Company and any Employee as to whether such Employee is or continues permanently incapacitated within the meaning of Section I, Paragraph 2, such difference shall be resolved as follows: The Employee shall be examined by a physician appointed for the purpose by the Company and by a physician appointed for the purpose by a duly authorized representative of the International Union. If they shall disagree concerning whether the Employee is permanently incapacitated, that question shall be submitted to a third physician selected by such two physicians. The medical opinion of the third physician, after examination of the Employee and consultation with the other two physicians, shall decide such question. The fees and expenses for the third physician shall be shared equally by the Company and the Union.”

Upon receipt of plaintiff’s application for disability pension, defendant raised a question as to whether plaintiff was or continued to be permanently incapacitated within the terms of the pension agreement. Defendant wrote to plaintiff four times between October 27, 1977, and April 6,1979, requesting plaintiff to submit to a medical examination for the purpose of determining entitlement. Plaintiff has refused to be examined.

On April 2, 1979, plaintiff filed this action in the circuit court of St. Clair County alleging that defendant breached the agreement to pay pension benefits. Defendant filed a motion to dismiss the complaint which was denied. Defendant then filed its answer and a motion for summary judgment which was also denied. Defendant filed a counterclaim alleging that the disputé involved was subject to a mandatory arbitration procedure. The counterclaim was dismissed by the trial court. On appeal, we affirmed that decision finding that defendant could not compel plaintiff to arbitrate his claim because, inter alia, the Uniform Arbitration Act was inapplicable.

Plaintiff now asserts, and the trial court held, that the finding of the Industrial Commission, with affirmance by the Illinois Supreme Court, that plaintiff is totally and permanently disabled for the purpose of workmen’s compensation is res judicata with respect to his eligibility for a disability pension under the pension plan. Defendant argues that the finding of the Industrial Commission is not res judicata and that plaintiff has not fulfilled the necessary conditions precedent, pursuant to the pension plan, to receive his disability pension.

Under the doctrine of res judicata, a final judgment rendered by a court of competent jurisdiction on the merits is conclusive as to the rights of the parties and their privies, and, as to them, constitutes an absolute bar to a subsequent action involving the same claim, demand or cause of action. The doctrine extends to matters decided and that could have been decided. This doctrine is sometimes called “estoppel by judgment.” Keim v. Kalbfleisch (1978), 57 Ill. App. 3d 621, 373 N.E.2d 565.

There is another branch of the general legal principle of res judicata usually denominated “collateral estoppel.” Under this judicial doctrine, the judgment between the parties in the former action estops the parties from relitigating any matter in issue and actually or necessarily decided in the former action in subsequent litigation between the same parties on a different claim or cause of action. Casson v. Nash (1977), 54 Ill. App. 3d 783, 370 N.E.2d 564.

However, collateral estoppel does not apply to issues that might have been decided but were not, nor to matters incidentally decided that were not essential to support the judgment in the prior action. Hassett Storage Warehouse, Inc. v. Board of Election Commissioners (1979), 69 Ill. App. 3d 972, 977-78, 387 N.E.2d 785, 790-91; Raymond Construction Co. v. Midwest America Development, Inc. (1978), 67 Ill. App. 3d 332, 384 N.E.2d 907.

The instant case involves two separate and distinct causes of action, the first for recovery under the workmen’s compensation act, and the second for pension benefits under a collectively bargained pension agreement. Thus, the collateral estoppel branch of res judicata, if any, would be applicable. In the trial court’s order of December 30, 1980, it stated that, “all the requirements of res judicata are met, and the factual issue determined in the prior litigation is the identical issue which the contract intended to be determined by the medical examination defendant seeks. Defendant, in effect, seeks to relitigate an issue already resolved.” In more precise terms, defendant is collaterally estopped from relitigating the issue of whether plaintiff is totally and permanently disabled.

Before reaching the question of the applicability of collateral estoppel to the instant case, it should be noted that in Illinois, the res judicata effect affixes to the administrative determination rather than to that of the reviewing court. (Citizens Savings & Loan Association v. Knight (1966), 74 Ill. App. 2d 234, 219 N.E.2d 355.) There is authority for the proposition that decisions of an administrative agency can have res judicata effect in a proper case. Generally, this will be where the determinations are made for a purpose similar to those of a court and in proceedings which are “adjudicatory”, “judicial”, or “quasi-judicial”. (2 Am. Jur. 2d Administrative Law §§496 through 498 (1962).) Our research reveals no Illinois authority directly on point for the application of res judicata as is asserted in the instant case, although the Illinois courts have recognized such applicability in different factual settings involving administrative determinations. See Hughey v. Industrial Com. (1979), 76 Ill. 2d 577, 394 N.E.2d 1164; Dempsey v. City of Harrisburg (1971), 3 Ill. App. 3d 696, 279 N.E.2d 55.

We recognize that res judicata can apply to administrative determinations in a proper case; however, we find the doctrine inapplicable to the instant litigation. As stated, the collateral estoppel branch of res judicata, if any, would be applicable to this case; thus, identity of issues is required. (Raymond Construction Co. v. Midwest America Development, Inc. (1978), 67 Ill. App. 3d 332, 384 N.E.2d 907.) The trial court found that identical issues were involved in the two proceedings. We find this was incorrect. A superficial analysis could lead to the conclusion that a determination of disability under workmen’s compensation is identical to and thus conclusive of a determination of “permanent incapacity” under the private pension agreement. However, the two issues are not identical. The mere fact that plaintiff successfully obtained benefits under workmen’s compensation does not automatically render him entitled to benefits under the pension agreement. Different standards and procedures are utilized by workmen’s compensation and the pension agreement to determine disability. An employee is totally and permanently disabled for the purposes of workmen’s compensation benefits when he or she is unable to make some contribution to industry sufficient to justify payment of wages, that is, when he or she cannot perform any services except those which are so limited in quantity, dependability, or quality that there is no reasonably stable market for them. (C. R. Wikel, Inc. v. Industrial Com. (1977), 69 Ill. 2d 273, 371 N.E.2d 610.) Under the pension agreement, an employee who becomes “permanently incapacitated” shall be entitled to a disability pension “if he has been totally disabled by bodily injury * * * so as to be prevented thereby from engaging in any occupation or employment for remuneration or profit.” (Emphasis added.) When these different standards are applied to the same facts, the same conclusion will not necessarily be reached. Procedurally, in a workmen’s compensation hearing, medical testimony as well as evidence of the nature of claimant’s employment, his age, experience and capabilities are considered by the arbitrator and reviewed by the Industrial Commission. (Á.M.T.C. of Illinois, Inc. v. Industrial Com. (1979), 77 Ill. 2d 482, 397 N.E.2d 804); whereas, entitlement under the pension agreement is founded exclusively on medical opinions. Considering the different standards applied and procedures utilized for determining disability, we find that the issues presented in the two proceedings are not identical. Therefore, the finding of the Industrial Commission that plaintiff is totally and permanently disabled for the purpose of workmen’s compensation is not res judicata with respect to eligibility for a disability pension under the pension plan.

While we have found the trial court to be in error for its determination on the res judicata issue, there is an even more persuasive and elementary reason for reversal. The trial court found “that plaintiff has complied with the conditions precedent of the contract and is entitled to pension benefits * * Defendant asserts that plaintiff failed to satisfy a condition precedent to entitlement for a disability pension by failing to submit to a medical examination as required by the pension agreement. We agree.

A pension agreement, such as the one in the instant case, creates a contractual relationship between an employer and its employees. The plan in this case is part of a labor contract between defendant and the United Steel Workers of America Local 1095, AFL-CIO, of which plaintiff is a member. “Where the pension plan is reached as a result of collective bargaining and is embodied in a labor contract, it is contractual in nature and enforceable according to its terms.” (Annot., 42 A.L.R.2d 461, 469 (1955). See also 60 Am. Jur. 2d Pensions and Retirement Funds §74 (1972).) The rights of participants in a private pension are governed by the terms of the plan. Guinzy v. Curtice Burns, Inc. (1975), 28 Ill. App. 3d 398, 327 N.E.2d 284.

It is an elementary rule of contract law that a condition precedent must be performed or no contractual liability results. A condition precedent is one which must be performed before a contract becomes effective of which is to be performed by one party to an existing contract before the other party is obligated to perform. (In re Estate of Albrecht (1975), 27 Ill. App. 3d 839, 327 N.E.2d 317.) In the instant case, thé express terms of the pension agreement, paragraph 2, section V, delineate the procedure to be followed if a dispute arises as to an ápplicant’s disability. Further, the plan provides that if an applicant is found to be “permanently incapacitated” that this can be “verified by medical examination prior to age 65 at any reasonable time.” Plaintiff has failed to satisfy the conditions precedent to establishing entitlement under the pension agreement by refusing to submit to a medical examination. Defendant stands ready to follow the procedures pursuant to the contract. As a result of plaintiff’s failure to satisfy the condition precedent, no contractual liability has resulted.

Having found the trial court in error for the above stated reasons, we find it unnecessary to address the issues with respect to prejudgment interest and punitive damages.

The judgment of the Circuit Court of St. Clair County is reversed.

Reversed.

HARRISON and WELCH, JJ., concur.


source: Caselaw Access Project

author: JUSTICE HARRISON

license: Public Domain

text:
      In re MARRIAGE OF WALTER E. WITTENAUER, Petitioner-Appellee, and JOSEPHINE C. WITTENAUER, Respondent-Appellant.
    Fifth District
    No. 81-209
    Opinion filed December 23,1981.
    Eugene C. Menges, of Wagner, Bertrand, Bauman & Schmieder, of Belleville, for appellant.

      Earl H. Sachtleben, of Nehrt, Sachtleben & Fisher, of Red Bud, for appellee.
   JUSTICE HARRISON

delivered the opinion of the court:

On April 13, 1981, the circuit court of Monroe County granted a petition for the dissolution of the marriage of Walter E. and Josephine C. Wittenauer. Josephine Wittenauer, respondent, appeals from that portion of the decree distributing the couple’s property. She challenges both the characterization and the division of property, and requests that this court reverse the findings of the trial court. We affirm in part, reverse in part and remand.

Petitioner Walter Wittenauer acquired certain real estate, referred to herein as the Wittenauer farm, when his mother died in 1974. Her will provided that she did “give and devise” the entire property to Walter on the condition that he pay into the estate a sum agreed to by her six other children. When the children decided upon $130,000 as a reasonable price for the land, Walter and Josephine borrowed that amount and purchased the property. Title was transferred to the couple, and the $130,000 was then distributed among the seven children. Walter received between $18,000 and $22,000 as his share of the inheritance.

In the judgment of the dissolution, the trial court characterized one-seventh of the Wittenauer farm as nonmarital property belonging to Walter. We believe this to be error. Petitioner did not inherit one-seventh of the real estate from his mother; he inherited the option to purchase the entire parcel at a price agreed to by the other heirs. Petitioner and his wife exercised the option, paying for the farm with borrowed funds which they secured by posting other jointly owned property as collateral. Acquired in this manner, the property falls within section 503(a) of the Uniform Marriage and Dissolution of Marriage Act, and is therefore marital property. (Ill. Rev. Stat. 1979, ch. 40, par. 503(a).) Because the trial court erred in characterizing a fraction of the Wittenauer farm as nonmarital, we reverse its finding on that point.

It is noteworthy that, although Walter did not inherit one-seventh of the farm, he did inherit one-seventh of the purchase price of the farm—approximately $18,000. This might have been regarded as non-marital if it had been kept separate. (Ill. Rev. Stat. 1979, ch. 40, par. 503(a)(1).) However, the evidence indicates that Walter did not segregate his inheritance. Instead, he used the money to purchase items for the family farm and to repay jointly acquired debts. Since he failed to segregate the nonmarital funds during marriage, the trial court was under no obligation to trace them at the time of dissolution. Commingled, the inheritance became marital property. In re Marriage of Smith (1981), 86 Ill. 2d 518.

The second contention of error involves the parcel of land referred to as the Tipton tract. The Wittenauers purchased Tipton during their marriage and placed it in respondents name to avoid unfavorable tax consequences. Upon dissolution of the marriage, the trial court found the property to be marital and divided it accordingly.

Section 503(a) states that “all property acquired by either spouse subsequent to the marriage” constitutes marital property. Section 503(b) repeats that property acquired after marriage is presumed to be marital, and emphasizes that this is so, “regardless of whether title is held individually” or jointly. It then states that the presumption may be overcome if the spouse who claims the property can show he acquired it by one of the methods listed in subsections (1) through (6) of 503(a) ..111-Rev. Stat. 1979, eh. 40, pars. 503(a) and 503(b).

. Respondent maintains that, as a gift to her, the Tipton tract falls under section 503(a)(1) and should, therefore, be classified as her non-marital property. The trial court disagreed, ruling that Mr. Wittenauer lacked the requisite intent to make a gift of the land to her. It, in effect, found that respondent had not overcome the section 503(b) presumption.

An examination of the record compels us to agree. Apparently, Mr. Wittenauer never relinquished control of the parcel in question. In fact, he treated the Tipton property, and the profits therefrom, no differently than he treated the rest of the property he farmed. Mere proof that title to the tract was placed in his wife’s name does not rebut the presumption contained in section 503(b). Although recognized and employed as an estate planning device, that fact alone fails to establish the requisite intent for purposes of section 503(a)(1). Consequently, we affirm the designation of the Tipton tract as marital property.

Finally, respondent challenges the trial court’s decision to award her only one-third of the marital property. A review of the transcript confirms that the court weighed all relevant factors when reaching its conclusion. However, in light of our recharacterization of the one-seventh interest in the Wittenauer farm, the trial court may wish to modify its original division. Accordingly, we remand so that the court may determine whether a redistribution of marital property is required. In re Marriage of Olsher (1979), 78 Ill. App. 3d 627, 636-37, 397 N.E.2d 488.

For-the above reasons the order of the circuit court of Monroe County is affirmed in part, reversed in part and the cause is remanded.

Affirmed in part, reversed in part and remanded.

WELCH and KASSERMAN, JJ., concur.


author: JUSTICE GREEN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff and Petitioner-Appellee, v. JOHN DOE, Defendant.—(ELAINE McCALL, Respondent-Appellant.)
    Fourth District
    No. 17306
    Opinion filed December 30, 1981.
    Rehearing denied January 28, 1982.
    Hugh J. Graham and Richard J. Wilderson, both of Graham & Graham, of Springfield, for appellant.
    J. William Roberts, State’s Attorney, of Springfield (Donald M. Cadagin, Assistant State’s Attorney, of counsel), for the People.
    Sandra G. Nye, of Oak Park, for amici curiae Illinois Psychiatric Society et al.

    Harry L. Kinser, of McLaughlin, Kinser & Bryant, of Chicago, and Kenneth C. Robbins, William C. Kennedy, and Jeffrey W. Maysent, all of Oak Brook, for amicus curiae Illinois Hospital Association.
   JUSTICE GREEN

delivered the opinion of the court:

This appeal is from a judgment of the circuit court of Sangamon County entered on June 13, 1981, finding respondent, Elaine McCall, a psychiatric therapist, in contempt of court for refusing to answer a question before a Sangamon County grand jury and fining her $250. At all times she has claimed the answer privileged from disclosure by the terms of the Mental Health and Developmental Disabilities Confidentiality Act (Ill. Rev. Stat. 1979, ch. 91/2, par. 801 et seq.). We hold the privilege not to be applicable and affirm.

The evidence upon which the contempt finding was made was substantially undisputed. Appearing first before the grand jury on May 14,1981, respondent testified she had previously talked with law enforcement officers about a drawing, appearing in a local newspaper, purporting to be a composite sketch of a person suspected of an ax murder which had been committed in a hardware store. Claiming statutory privilege, she refused to state whether she had seen anyone resembling the figure in the drawing. On May 21,1981, the circuit court entered a rule upon her to show cause why she should not be held in contempt for refusing to answer the question.

A hearing was held on the rule on June 9, 1981. Bobby Joe Kyle, a patient at the St. John’s psychiatric unit where respondent worked, testified that he overheard a conversation in which one patient stated to another that he had committed murder at a hardware store. Kyle stated he did not know the name of the person making the statement. A Springfield police officer then testified to having spoken with Kyle, in respondent’s presence, about the foregoing conversation. The officer stated respondent (1) indicated the patient alleged to have made the statement resembled the person in the composite drawing, (2) indicated the patient had been admitted after the ax murders, and (3) refused to give further information about the patient. Respondent testified the composite drawing would have meant nothing to her except for the conversation with Kyle and the patient alleged to have made the statement having been in the psychiatric unit.

The trial court ordered respondent to answer the specific question as to the name of the person resembling the one in the drawing. The court also stated respondent would be subject to being held in contempt if she refused to answer. Nevertheless, she still refused to name the individual when she returned to the grand jury on June 11, 1981. She admitted she had seen a person matching the one in the drawing but refused to answer the question, “What is the individual’s name?” Later that day she was taken before the circuit court where she affirmed she had refused to answer the question and still refused to do so. The court then held her in contempt and imposed the fine of $250.

Section 3(a) of the Mental Health and Developméntal Disabilities Confidentiality Act (Act) (Ill. Rev. Stat. 1979, ch. 911/2, par. 803(a)) states:

“All records and communications shall be confidential and shall not be disclosed except as provided in this Act.”

Section 10(a) of that Act (Ill. Rev. Stat. 1979, ch. 911/2, par. 810(a)) states:

“Except as provided herein, in any civil, criminal, administrative, or legislative proceeding, or in any proceeding preliminary thereto, a recipient, and a therapist on behalf and in the interest of a recipient, has the privilege to refuse to disclose and to prevent the disclosure of the recipient’s record or communications.”

Section 2 of the Act defines the terms “communications,” “recipients,” and “record” as follows:

“The terms used in this Act, unless thé context requires other-, wise, have the meanings ascribed to them in this Section.
(1) ‘Confidential communication’ or ‘communication’ means any communication made by a recipient or other person to a therapist or to or in the presence of other persons during or in connection with providing mental health or developmental disability services to a recipient. Communication includes information which indicates that a person is a recipient. # <* #
(6) ‘Recipient’ means a person who is receiving or has received mental health or developmental disabilities services.
(7) ‘Record’ means any record kept by a therapist or by an agency in the course of providing mental health or developmental disabilities service to a recipient concerning the recipient and the services provided. Record does not include the therapist’s personal notes, if such notes are kept in the therapist’s sole possession for his own personal use and are not disclosed to any other person, except the therapist’s supervisor, consulting therapist or attorney. If at any time such notes are disclosed, they shall be considered part of the recipient’s record for purposes of this Act. Record does not include testing material used in the course of providing services if the disclosure of such material would compromise the objectivity or fairness of the testing process.” Ill. Rev. Stat. 1979, ch. 91%, par. 802.

Throughout the proceedings respondent has maintained she was entitled to the privilege because her knowledge of the identity of the person she would name as the person resembling the one in the drawing arose from her employment as a nurse and therapist at the psychiatric unit at St. John’s Hospital and the person’s presence as a patient there. At her June 11, 1981, appearance before the grand jury, she testified she could not remember whether she had ever treated or talked to the person. The parties do not dispute that respondent was a “therapist” as defined by section 2(9) of the Act (Ill. Rev. Stat. 1979, ch. 911/2, par. 802(9)), due to her employment as a nurse in the psychiatric unit, or that patients in the unit were recipients within the meaning of section 2(6) thereof.

As we pointed out in Laurent v. Brelji (1979), 74 Ill. App. 3d 214, 392 N.E.2d 929, the Act was adopted as an attempt to encourage and protect certain types of confidential relationships by making certain information obtained through them confidential and privileged against disclosure. The legislature recognized that suppression of this information could operate as a substantial detriment to law enforcement and the protection of the citizenry, and attempted to provide for a privilege only when the benefits outweighed the detriments. Much of the State’s argument in its brief focuses upon the damage the exercise of the privilege imposes upon law enforcement and contends some exceptions should be implied from the legislation. The State does not argue that the instant situation involves any express exceptions to the Act. However, as we stated in Laurent, section 3(a) of the Act indicates that the only exceptions are those expressly provided for in the Act.

The legislative history of provisions for privilege from disclosure by persons working with mental patients also negates the theory that there are implied exceptions with reference to furnishing information to law enforcement personnel. Section 12—3(a) of the Mental Health Code of 1967 (Ill. Rev. Stat. 1977, ch. 911/2, par. 12—3(a)) provided for a privilege with reference to the records of patients in public and private mental hospitals but excepted from coverage inquiries by certain persons, including the State’s attorney of the county from which the patient came, the county of the patient’s residence, or the county in which the hospital was located. Upon the repeal of the foregoing, no such provision was placed in the Mental Health Developmental and Disabilities Confidentiality Act.

We affirm, not because the present situation involves an exception to the Act, but because respondent’s knowledge of the name of the person she considered to resemble the person depicted in the drawing was not privileged by the express terms of the Act. In answering the question, she would not be disclosing a “recipient’s record” or that which constitutes a communication within the meaning of section 2(1) of the Act.

One of respondent’s theories is that by answering the question, she would be giving “information which indicates that a person is a recipient” within the meaning of section 2(1) because the person sought to be identified was, in fact, a recipient. None of the information she had given to the grand jury in response to questions by the prosecutor indicated the person was a recipient. Her answer naming the person would not have done so. We do not interpret section 2(1) to clothe with privilege information which, when taken with other information, would indícate a person was a patient. If that was so, it would be hard to imagine the limitations of the privilege. Had the respondent answered the question and then been asked how she knew of the respondent, exercise of the privilege might well have been proper. If the proceeding were a trial, an awkward situation would be created if the witness was required to state the name of the person resembling the person depicted in the drawing but was permitted to claim privilege to being questioned as to how she gained the information. However, the proceeding here was an inquiry before a grand jury. That body could receive the answer and make whatever use it could of the answer without any party being prejudiced by not being able to determine how the witness knew the name.

Respondent also claims that even if her answer would not have indicated the person named was a recipient, the answer would have disclosed the “recipient’s record” or his “communications” because her knowledge of his identity was obtained in the course of her duties as a therapist. She does not maintain her answer would recite the contents of any record nor does she allege she obtained the information by examining any record. We do not find that her answer would have disclosed the record of the person named and, accordingly, it was not privileged for that reason. The question of whether her answer would otherwise disclose “communications” is more complicated.

In discussing the application of a prior statutory psychiatrist-patient privilege applicable to “communications relating to diagnosis or treatment of the patient’s mental condition between patient and psychiatrist e * o» (Ill. Rev. Stat. 1975, ch. 51, par. 5.2) and comparing it to the physician-patient privilege which applied to “any information [the physician or surgeon] may have acquired in attending any patient * * *” (Ill. Rev. Stat. 1975, ch. 51, par. 5.1) we said:

“At least one writer has stated that ‘information’ and ‘communication’ are treated as synonymous terms by the courts in the context of this privilege. (‘The Physician-Patient Privilege’, 56 Nw.U.L. Rev. 263, 270 (1961).) However, the legislature has used two different words and the implication, at least, is that different meanings are to be attached.” (In re Westland (1976), 48 Ill. App. 3d 172, 176, 362 N.E.2d 1153, 1156.)

We nevertheless held the psychiatrist-patient privilege to be applicable there to information the psychiatrist had obtained as the obvious result of his conversation with the patient. We also stated the psychiatrist might have been properly permitted to testify to his observations of the patient..

Here, respondent makes no claim she learned the name of the person resembling the one in the drawing through conversations with him, nor does she claim the information was obtained by a conversation or other communication with somebody else. Thus, even in the broad context of the Act, respondent’s answering of the question by naming the individual would not have been a disclosure of a communication.

Our affirmance is for the reasons stated.

Affirmed.'

MILLS and TRAPP, JJ., concur.


text:
    THOMAS KERR, Plaintiff, v. CONRAIL, Defendant and Third-Party Plaintiff-Appellee.—(CENTER CABS, INC., Third-Party Defendant-Appellant.)
    Fifth District
    No. 81-297
    Opinion filed December 23, 1981.
    Burton C. Bernard and William R. Gallagher, both of Bernard, Davidson & Kaseberg, of Granite City, for appellant.
    Walker & Williams, P. C., of Belleville (Gordon E. Maag, of counsel), for appellee.
   PRESIDING JUSTICE KARNS

delivered the opinion of the court:

Plaintiff, Thomas Kerr, brought an action for damages resulting from personal injuries allegedly sustained in an automobile accident which occurred in Cincinnati, Ohio, against Consolidated Rail Corporation (Conrail) under the Federal Employers’ Liability Act (45 U.S.C. §51 et seq. (1976)). Conrail filed a third-party complaint against Center Cabs, Inc., an Ohio corporation, for indemnity. Center Cabs appeared specially objecting to the jurisdiction of the circuit court of Madison County over its person. From an order denying its objections, Center Cabs appeals pursuant to Supreme Court Rule 308 (73 Ill. 2d R. 308). The issues raised on appeal are whether Center Cabs voluntarily submitted to the personal jurisdiction of the circuit court of Madison County and whether section 17(1) (d) of the Illinois Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 17) applies to confer jurisdiction over Center Cabs.

Kerr, an employee of defendant and third-party plaintiff, Conrail, filed a one-count complaint alleging that it had violated the F.E.L.A. in that it negligently failed to provide plaintiff with a safe place to work. The complaint alleged that plaintiff was injured while traveling during the course of his employment in Cincinnati, Ohio, in a taxicab provided by Conrail. Another vehicle struck the rear of the taxicab while it was stopped at a red light. The complaint alleged specifically that Conrail violated the F.E.L.A. by failing to provide safe transportation, to provide taxicabs with seatbelts and to warn plaintiff of the alleged dangerous condition.

Conrail filed a third-party complaint against Center Cabs seeking common law and contractual indemnity. In the complaint, defendant stated that it entered into a contract with Center Cabs whereby Center Cabs was to provide transportation services for defendant’s employees “within, to and from” its Cincinnati terminal. In the contract, Center Cabs agreed to indemnify Conrail for money paid because of any accidents related to the performance of the contract. Center Cabs was personally served with summons in Ohio.

In the affidavit accompanying Center Cabs’ appearance and motion, Gertrude E. Worst, president, stated that Center Cabs is an Ohio corporation with its principal place of business located in Cincinnati, Ohio. Center Cabs is engaged in the taxicab business in the Cincinnati metropolitan area. The affidavit further stated that Center Cabs is licensed by the City of Cincinnati and other surrounding municipalities. Center Cabs is not licensed to do business in the State of Illinois and does not operate any vehicles in Illinois. The affidavit stated that Center Cabs does not have any office, employees or property in Illinois.

In addition, the affidavit stated that Center Cabs executed the contract with defendant at defendant’s office located in Cincinnati. Center Cabs was not required by the terms of the contract to transport any of defendant’s employees within the State of Illinois. Center Cabs was transporting five of defendant’s employees in Cincinnati when the accident occurred. Finally, the affidavit states that Center Cabs did not consent to be sued in the State of Illinois.

After a hearing on the motion to dismiss, the trial court overruled Center Cabs’ objection to jurisdiction, citing Bania v. Royal Lahaina Hotel (1975), 37 Ill. App. 3d 661, 347 N.E.2d 106. Center Cabs applied for leave to appeal from the interlocutory order pursuant to Supreme Court Rule 308 (73 Ill. 2d R. 308).

The question as certified by the trial court reads as follows:

“Does the Madison County, Illinois, Circuit Court have jurisdiction over the person of an Ohio corporation which is engaged exclusively in the business of providing taxicab service in the greater Cincinnati, Ohio area, and not in Illinois, if it has been served with summons in Ohio, which summons has been issued by the Clerk of said Circuit Court, pursuant to the filing of a third party complaint against the Ohio corporation, by a railroad, which does business in Ohio and Illinois, seeking indemnity from the Ohio corporation, in a suit for personal injuries brought by the railroad’s employee against the railroad in said Circuit Court for injuries received by him in an auto collision in Ohio while a passenger in the Ohio corporation’s taxicab, the railroad, prior to the accident, having entered into a contract with said Ohio corporation, a copy of which is attached hereto as Exhibit A, for transporting the railroad’s employees within, to and from the railroad’s Cincinnati terminal, the contract having been executed by the railroad in Indiana, and by the Ohio corporation in Ohio, and, in force at the time of the accident?”

We find that the circuit court did not have jurisdiction over the person of Center Cabs.

As noted above, the trial court premised its order on Bania v. Royal Lahaina Hotel (1975), 37 Ill. App. 3d 661, 347 N.E.2d 106. In Bania, the plaintiff, an Illinois resident, appealed from an order of the trial court dismissing the complaint for lack of jurisdiction over the defendant, an Hawaiian hotel. The complaint alleged that plaintiff, while a guest of the hotel, was injured as a result of defendant’s negligence. The complaint further alleged that defendant, through its manager, told plaintiff to bring her claim against it under its insurance policy. The court held that the defendant was subject to the jurisdiction of the Illinois court The court reasoned that defendant had consented to suit in Illinois because the hotel manager told plaintiff to sue its insurance company.

On appeal, Center Cabs argues that Bania is distinguishable from the instant case. We agree and note that the factual situation presented in Bania was unique. The court in Bania focused upon the fact that the defendant, in effect, directed plaintiff to bring suit in plaintiff’s State of residence. No conduct by Center Cabs can be construed as a direction to defendant to bring its counterclaim against Center Cabs in Illinois. Neither can the indemnity provision in the transportation services contract between Center Cabs and defendant serve as a basis for finding that Center Cabs voluntarily submitted to the court’s jurisdiction.

Center Cabs agreed to indemnify defendant for money paid because of any accidents related to the performance of the contract. Center Cabs did not agree to assume the defense of any action brought against defendant. Here, defendant argues that Center Cabs consented to the personal jurisdiction of Illinois courts because it knew or should have known that defendant, whom it agreed to indemnify, was a corporation doing business throughout the United States, and, therefore, subject to suit in foreign forums. We disagree. Defendant drafted the contract which was to be performed solely in Ohio by Center Cabs, an Ohio corporation. In the absence of an express contractual understanding that Center Cabs would voluntarily submit to the court’s jurisdiction, the indemnity provision cannot be so construed. Therefore, we find that Center Cabs did not consent to the personal jurisdiction of the courts of Illinois.

On appeal, defendant raises the argument that the trial court’s finding that Center Cabs was subject to the jurisdiction of the court is supported not only by the consent of Center Cabs, but also by section 17(1) (d) of the Civil Practice Act. (Ill. Rev. Stat. 1979, ch. 110, par. 17(1)(d).) Center Cabs argues that section 17(1) (d) of the Civil Practice Act does not apply to the instant factual situation. This issue was not considered by the trial court.

Section 17 of the Civil Practice Act provides, in pertinent part, the following:

“(1) Any person, whether or not a citizen or resident of this State, who in person or through an agent does any of the acts hereinafter enumerated, thereby submits such person, and, if an individual, his personal representative, to the jurisdiction of the courts of this State as to any cause of action arising from the doing of any of such acts: * # «
(d) Contracting to insure any person, property or risk located within this State at the time of contracting; * * (Ill. Rev. Stat. 1979, ch. 110, par. 17(1)(d).)

No published opinions by the courts of this State have considered whether the above-cited provision of the Civil Practice Act was designed or intended to apply to cases of the character now before the court. A' cardinal rule of statutory construction is that the court must ascertain and give effect to the intent and meaning of the legislature, as evidenced in the history, circumstances and contemporary conditions of the legislation. (Miller v. Department of Public Aid (1981), 94 Ill. App. 3d 11, 418 N.E.2d 178.) Of critical importance, therefore, is an examination of the origin of section 17(1) (d) of the Civil Practice Act.

Illinois, like many States, had long been concerned with the difficulty of obtaining service of process over mail-order insurance companies. (See Uniform Unauthorized Insurers Act, 9C Uniform Laws Annotated 303 (1957).) This difficulty was addressed by the legislature in the Illinois Insurance Code which provided that service of process could be obtained over a mail-order insurance company in a suit by an Illinois resident by serving the Director of Insurance and mailing a copy of the process to the company, where the company, by mail or otherwise, (a) issued or delivered policies, (b) solicited applications, (c) collected premiums or (d) transacted any other business. (Ill. Rev. Stat. 1937, ch. 73, par. 735.) In the 1949 amendment of the Code, the legislature in stating the purpose of this provision declared:

“[t]hat it is a subject of concern that many residents of this state hold policies of insurance issued by companies not authorized to do business in this state, thus presenting to such residents the often insuperable obstacle of resorting to distant forums for the purpose of asserting legal rights under such policies.” Ill. Rev. Stat. 1949, ch. 73, par. 735.

In the revised Civil Practice Act which went into effect on January 1, 1956, the legislature enacted a comprehensive scheme whereby nonresident defendants became subject to the jurisdiction of Illinois courts by the commission of certain acts. The concern expressed by the legislature in the 1949 amendment to the Insurance Code was continued in section 17(l)(d) of the Civil Practice Act. In addition, section 17(l)(d) was an extension of the Insurance Code provision in that nonresident plaintiffs as well as Illinois residents could utilize the statute where the risk insured by the policy was located within Illinois at the time of contracting. O’Connor and Goff, Expanded Concepts of State Jurisdiction over Non-residents, 31 Notre Dame Law. 223 (1956).

The insurance industry has long been recognized as a business subject to specialized regulation-by the State. (Accord, McGee v. International Life Insurance Co. (1957), 355 U.S. 220, 2 L. Ed. 2d 223, 78 S. Ct. 199.) We are of the opinion that section 17(1) (d) of the Civil Practice Act was intended to facilitate the State’s interest in regulating the insurance industry and providing effective remedies against insurance companies that are not amenable to service of process in the absence of a process statute. Therefore, section 17(1) (d) cannot serve as the basis for the court’s exercise of jurisdiction over Center Cabs. Center Cabs did not enter into an insurance contract as such is contemplated by section 17(1) (d). Center Cabs entered into a contract with defendant whereby Center Cabs was to provide transportation services to defendant’s employees. Incidental to the service contract was an indemnity provision. Center Cabs agreed to indemnify defendant for money paid as a result of any accidents related to the performance of the contract. We are unable to equate such an indemnification provision to an insurance contract as defendant now urges.

We would note that the supreme court has recently construed section 17 of the Civil Practice Act in Cook Associates, Inc. v. Lexington United Corp. (1981), 87 Ill. 2d 190, 429 N.E.2d 847. There the court refused to equate “doing business” with the mere satisfaction of the minimum contacts needed to satisfy due process. We likewise refuse to construe this indemnity agreement as a contract to insure under section 17(d) of the Act.

For the foregoing reasons, the order of the circuit court of Madison County is reversed and the cause is remanded.

Reversed and remanded.

KASSERMAN and HARRISON, JJ., concur.


author: JUSTICE WELCH JUSTICE KASSERMAN,

text:
    FRANK McCREE et al., Plaintiffs and Counterdefendants-Appellees, v. JOHN F. JONES et al., Defendants and Counterplaintiffs-Appellants.
    Fifth District
    No. 80-471
    Opinion filed December 30, 1981.

      C. Robert Hall, of Carbondale, for appellants.
    Fowler and Novick, of Marion, for appellees.
   JUSTICE WELCH

delivered the opinion of the court;

This case concerns the title to two parcels of land in Williamson County. The trial court held that the plaintiffs, Frank and Betty McCree, owned the land in fee simple by virtue of adverse possession. The defendants have appealed to this court, where they argue that the requirements for adverse possession have not been met, and that the trial court should have partitioned the property in recognition of their interest in it.

The property in question has been in the McCree family since the early years of this century. Tract I consists of 20 acres of farmland, 14 acres of which were owned solely by Katie McCree, and six acres of which were owned by Katie and her husband, John, during her lifetime. Tract II is largely a strip pit, as it was mined during the 1930’s, but several of the 25 acres in this land are tillable. It was owned by John McCree in his lifetime.

Katie McCree died intestate on May 16,1926, leaving as her survivors her husband, John, and their three children, Mary Jones, Viola McCree, and Sam McCree. As the parties stipulated, this left John with a one-third interest in 14 acres of Tract I and a two-thirds interest in the remaining six acres. Mary, Viola, and Sam each owned a two-ninths interest in the 14 acres and a one-ninth interest in the six acres.

On March 31, 1932, Mary Jones and her husband, Fred Jones, conveyed by quitclaim deed all interest in the two tracts in favor of Viola McCree. The parties dispute the legal effect of this document, but, as a quitclaim deed does not pass a future interest or after-acquired title (Ill. Rev. Stat. 1979, ch. 30, par. 8; Bruce v. McCormick (1947), 396 Ill. 482, 72 N.E.2d 333), it could have conveyed only the interest which Mary owned in 1932, namely that portion of Tract I which she inherited from her mother, Katie McCree. Thus, after the execution of the quitclaim deed, John retained his one-third interest in the 14 acres and his two-thirds interest in the six acres. Viola owned four-ninths of the 14 acres, and two-ninths of the six acres, while Sam held two-ninths and one-ninth of those plots, respectively.

On April 2, 1939, John McCree died intestate and his interest in the property passed equally to his three children. After his death, Mary Jones owned one-ninth of the 14 acres, two-ninths of the six acres and one-third of the entire 25-acre parcel known as Tract II. Viola became the owner of five-ninths of the 14 acres, four-ninths of the six acres and one-third of Tract II. By coincidence of arithmetic, Sam retained one-third of each piece of land. This pattern of ownership was maintained for nearly 30 years.

During this period, Sam farmed all of Tract I and two acres of Tract II. According to tenant-farming custom, Sam kept two-thirds of the proceeds from his crops and gave one-third to Viola, but nothing to Mary. Sam and Viola paid the real estate taxes on the land. According to the evidence introduced at trial, there is nothing to show that Mary Jones objected to this arrangement, or requested part of the profits, even though she lived near Viola McCree in Carterville, Illinois.

On September 25,1967, Viola quitclaimed all interest in both tracts in favor of Sam. Assuming that she had not previously been divested of it by adverse possession, Mary then held the legal title to one-ninth of the 14 acres, two-ninths of the six acres and one-third of Tract II, with Sam holding the remaining portions of the lots. Viola and Sam joined in a conveyance by warranty deed on February 14,1968. This document purported to convey all of Tract I and Tract II to the plaintiffs, Frank and Betty McCree, who are the son and daughter-in-law of Sam McCree. Frank and Betty McCree paid $1,500 for the property, $1,000 to Viola and $500 to Sam. Mary Jones was not mentioned in this deed.

Following the 1968 transaction, Frank and Betty assumed Sam’s position as the cultivator of the land, although they did not notify Mary Jones or her children of the change in circumstances. Frank and Betty retained all profits from the sale of their crops, and paid all real estate taxes on the land, as receipts from 1969 through 1977 show. Mary Jones did not express any interest in the land, according to Frank and Betty McCree.

Viola McCree died in 1970, leaving no husband or issue. Mary Jones died the following year, survived by her five children, who are the defendants in this lawsuit. The Jones heirs did not then claim ownership of the McCree land, and Frank McCree testified that even though he occasionally discussed farming with those of the heirs who lived in and around Williamson County, they did not ask him for a share of the profits from the sale of his crops.

In April 1979, Frank and Betty McCree filed a complaint against the children of Mary Jones to quiet title to the property in themselves. The defendants filed a counterclaim in which they sought partition of the tracts. Upon hearing testimony from the plaintiffs, from a woman whose land adjoined Tract II, and from one of the defendants, the trial court entered judgment for the plaintiffs. In its final judgment order, the court found:

“[t]hat the possession and claims of title to said real estate by Frank McCree and Betty McCree have been under color of title made in good faith and continued possession and payment of taxes for seven years in accordance with the provisions of Chapter 83, Section 6 of the Illinois Revised Statutes.”

In this appeal, defendants argue that the plaintiffs did not notify or oust Mary Jones or her heirs, as is required before a tenant in common may set up a claim of adverse possession against a co-tenant. (Mercer v. Wayman (1956), 9 Ill. 2d 441, 137 N.E.2d 815.) While the defendants state a correct rule of law, that rule does not apply to this case. As the court stated in Mercer, actual notice or ouster is not required if a co-tenant gives a deed of the entire property to a stranger in title. (9 Ill. 2d 441, 447, 137 N.E.2d 815, 819.) This is because “[a]n entry by the grantee of one tenant in common under a conveyance which purports to convey the whole estate, not acknowledging the right of any other person in the land, amounts to an ouster of co-tenants and the possession of the land is adverse as to them.” Waterman Hall v. Waterman (1906), 220 Ill. 569, 574, 77 N.E. 142, 143.

Nowhere has it been alleged that Frank and Betty McCree had any interest in the land before the execution of the 1968 warranty deed. Before they paid $1,500 and moved onto the land, Frank and Betty had at most an expectation of inheritance in the land, for nemo est haeres viventis. They were not co-tenants of Mary Jones, or of Sam and Viola McCree, but they were only strangers in title. Because Frank and Betty had no interest in the land before the 1968 deed, they are entitled to rely upon the statute of limitations, if they have met all other requirements of adverse possession. Whittington v. Cameron (1943), 385 Ill. 99, 52 N.E.2d 134.

To support a claim of adverse possession under section 6 of the Limitations Act, a claimant must show that he acted “under claim and color of title, made in good faith” to adversely possess the land in question for seven years and to pay the taxes on that property for that time. (Ill. Rev. Stat. 1979, ch. 83, par. 6; Belunski v. Oakes (1955), 6 Ill. 2d 176, 128 N.E.2d 689.) It cannot be disputed that the plaintiffs possessed the land adversely and continuously and paid taxes on it for seven years. But, the defendants urge that the plaintiffs did not acquire color of title to the property in good faith. Defendants may not maintain that the 1968 warranty deed was insufficient to give color of title, because that instrument purports on its face to convey title to the plaintiffs. (Bergesen v. Clauss (1958), 15 Ill. 2d 337, 155 N.E.2d 20; Belunski v. Oakes.) Instead, we understand defendants to argue that, as the plaintiffs should have known of Mary Jones’ interest in the property, they did not accept the warranty deed “in good faith.”

The “good faith” required by section 6 of the Limitations Act has been defined negatively as the absence of an intent to defraud the holder of better title, or, simply, as the absence of bad faith. (Gochenour v. Logsdon (1940), 375 Ill. 139, 30 N.E.2d 666; Dunlavy v. Lowrie (1939), 372 Ill. 622, 25 N.E.2d 67.) It does not require the claimant to be ignorant of all defects in title, and good faith acquisition of title is presumed until it is disproven by evidence of fraud or actual bad faith. Gochenour v. Logsdon; Dunlavy v. Lowrie; Bergesen v. Clauss.

In this case, there is no evidence to suggest that Frank and Betty McCree received the warranty deed from Sam and Viola McCree in order to defraud Mary Jones of her interest in the land. What little evidence was introduced at trial tends to show no reason for the plaintiffs to have ever been aware of Mary Jones’ interest.

For 30 years, Sam and Viola took sole responsibility for the property. He farmed it, gave her one-third of the profits, and paid the taxes, while Mary Jones did nothing to indicate to anyone, especially the plaintiffs, that she was a co-tenant. It appears that all concerned parties labored under the misapprehension that the 1932 quitclaim deed extinguished all of Mary’s rights to the property. It also seems likely that, when the plaintiffs purchased the land for $1,500, their neglect of Mary Jones was similarly unintentional. In this record, there is virtually no evidence to rebut the presumption that the plaintiffs acquired title in good faith, and the trial court’s holding to that effect is not against the manifest weight of the evidence.

The plaintiffs have satisfied all requirements for a claim of adverse possession under section 6 of the Limitations Act. For that reason, we affirm the decision of the Circuit Court of Williamson County.

Affirmed.

HARRISON, J., concurs.

JUSTICE KASSERMAN,

dissenting:

Plaintiffs, and their predecessors in title, were tenants in common with Mary Jones and, after her death, with her heirs. It is my opinion that the record does not disclose evidence sufficient to establish a claim of adverse possession against defendants under the rationale of Mercer v. Wayman (1956), 9 Ill. 2d 441, 137 N.E.2d 815; therefore, I respectfully dissent.

The majority correctly takes into account the fact that although Mary Jones divested herself of all her interest in the two tracts of real estate in dispute in 1932, her father, John McCree, was still alive and was the owner of an undivided interest in such tracts. Further, when John McCree died intestate in 1939, Mary Jones inherited one-third of the interest that he owned at the time of his death. Plaintiffs subsequently became the owners of all other interest in such two parcels of real estate by virtue of their deed from Sam McCree and his sister, Viola McCree.

As stated by the majority, Mary Jones’ deed to her sister, Viola McCree, made before their father’s death, would not be effective to convey title to the interest in the real estate she later inherited from their father because a quitclaim deed does not operate to pass after-acquired title.

I do not agree, however, with the majority’s application of Mercer v. Wayman to the instant case. Mary Jones owned an undivided interest in the real estate in question from the date of her father’s death in 1939 until her own death in 1971. Thereafter, defendants, her children, succeeded to whatever interest she had in such property. Plaintiffs first acquired an interest in the premises by virtue of the 1968 deed from Sam McCree and Viola McCree. The majority concludes that plaintiffs acquired title to all outstanding interests in the real estate in question in the instant case by adverse possession under section 6 of the Limitations Act, stating that “[i]t cannot be disputed that the plaintiffs possessed the land adversely and continuously and paid taxes on it for seven years.” The majority recognizes that plaintiffs’ possession cannot be adverse to their co-tenants absent notification by plaintiffs of their claim of ownership or ouster of such co-tenants. The majority states, however, that ouster of a co-tenant may be in the form of a deed to “a stranger in title” made in good faith; and they conclude that the record in the case at bar indicates such an ouster.

In this regard, the evidence discloses that Viola McCree conveyed all her interest in the real estate in question to her brother, Sam McCree, by quitclaim deed dated September 25,1967. Less than five months later, she joined with her brother, Sam, in the execution of a warranty deed conveying the premises to plaintiffs, Sam’s son and daughter-in-law. Contrary to the holding of the majority that the evidence indicates that plaintiffs acquired title to such premises in good faith, it is my conclusion that the fact that Viola was required to join Sam in the execution of the warranty deed to plaintiffs when she owned no interest in the premises indicates that plaintiffs were aware of the actual status of the title. This conclusion is further borne out by evidence in the record that Viola, who at the time owned no interest in the real estate conveyed, was paid $1,000 for her execution of the warranty deed to plaintiffs. Sam, the father of one plaintiff and the father-in-law of the other, was the owner of all the premises other than the interest of Mary Jones. He was paid only $500.

Additionally, the majority concludes that the deed from Sam and Viola McCree to plaintiffs constitutes color of title; however, such a conclusion is not dictated by the evidence in my opinion. Defendants and their predecessor in title were, in fact, the record owners of an interest in the real estate in question. No one purported to convey such interest to plaintiffs, in any manner, even by a forged deed as in Bergesen v. Clauss (1958), 15 Ill. 2d 337, 155 N.E.2d 20, which is relied upon in the majority opinion. Defendants’ ownership would have been indicated by the examination of an abstract of title to the premises, coupled with plaintiffs’ actual knowledge of the heirship of John McCree. The holding of the majority renders totally ineffective the act relating to the registration of land titles (Ill. Rev. Stat. 1979, ch. 30, par. 45 et seq.).

Moreover, the majority observes that it appears that all concerned parties labored under the misapprehension that the 1932 quitclaim deed extinguished all of Mary Jones’ rights to the property. Then, in conclusion, the majority states: “It also seems likely that, when plaintiffs purchased the land for $1500, their neglect of Mary Jones was similarly unintentional.” I cannot perceive any method whereby plaintiffs could act unintentionally and at the same time possess the real estate in question adversely and hostilely to the interests of Mary Jones.

For these reasons, it is my conclusion that plaintiffs have not met the requirements of Mercer v. Wayman because they have failed to establish that the possession of Sam McCree and plaintiffs was hostile and adverse to Mary Jones’ and defendants’ ownership of an interest in the real estate in question. This is a fatal defect in plaintiffs’ proof. In this regard, the court in Mercer v. Wayman stated:

“While the plaintiffs exercised such control and dominion over the property as to be hostile and adverse to all strangers, the rules with regard to adverse possession are different in the case of one cotenant who claims adversely to other cotenants. The doctrine was well stated in Simpson v. Manson, 345 Ill. 543, 551: ‘The rule is well settled that the mere possession by one tenant in common who receives all the rents and profits and pays the taxes assessed against the property, no matter for how long a period, cannot be set up as a bar against the co-tenants. In such case the possession of one tenant in common is in contemplation of law the possession of all the tenants in common. Such possession, however, may become adverse if the tenant in common by his acts and conduct disseizes his co-tenants by repudiating their title and claiming adversely to them.’ ” (9 Ill. 2d 441, 444-45, 137 N.E.2d 815, 818.)

There is no evidence in the record that the title of Mary Jones and the defendants was ever repudiated or that plaintiffs claimed ownership adversely to them. At most, as stated by the majority, the plaintiffs unintentionally neglected Mary and, after her death, the defendants.

For the foregoing reasons, I would reverse the decision of the trial court.


author: JUSTICE LONDRIGAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. HERMAN TIBBS, Defendant-Appellant.
    Fourth District
    No. 16898
    Opinion filed December 30, 1981.

      Daniel D. Yuhas and James G. Woodward, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Basil G. Greanias, State’s Attorney, of Decatur (Robert J. Biderman, of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE LONDRIGAN

delivered the opinion of the court:

The defendant was convicted of attempted murder, armed robbery, and aggravated kidnapping and sentenced to concurrent prison terms of 55, 30, and 15 years respectively; he appeals his conviction and sentence for attempted murder. The defendant’s guilt for that offense is based on accountability and his 55-year sentence is an extended term. The defendant argues that the evidence does not support the conviction and that the trial judge improperly sentenced him as a principal. We affirm the conviction and the sentence.

The defendant argues first that the evidence does not establish either that he had the specific intent necessary to be held accountable for attempted murder or that he engaged in any conduct that facilitated the offense; the defendant concedes, however, that the evidence proved him guilty of armed robbery and aggravated kidnapping. At trial the State relied largely on the victim’s testimony and on the defendant’s statements to the police; the trial court had previously denied the defendant’s motion to suppress the statements, and the defendant does not renew that objection here.

The complainant, Thomas Slider, testified that he was standing beside his van in a parking lot when Smith and Hardy forced him into the back part of the van and drove off; after traveling some distance the van got stuck in a ditch. During the effort to extricate the van, Slider saw a third man lend his assistance; a car was parked nearby. During this time Smith threatened Slider with a pistol. After pulling the van from the ditch they resumed their journey, and Slider noticed the same car following them. They then stopped by a cornfield; when Slider got out of the van he saw the third man again, and the car was parked nearby. Slider was ordered to lie face down on the ground; the three men stood next to him. Slider then heard a shotgun go off but did not see who fired it; shot was later removed from his right forearm and wrist. Slider’s wallet was taken from him before he was shot.

Tibbs’ written and oral statements to the police filled in some gaps in Slider’s narration: Tibbs was the third man, the one in the car, and Smith fired the shotgun at Slider. According to Tibbs he and Hardy agreed with Smith to steal a vehicle; in their search for one Hardy was carrying a handgun and Smith a shotgun. Tibbs recounted the details of the taking of the van, the problem in the ditch, and the final stop at the field. Smith fired the shotgun while Tibbs had his back to Slider.

After chasing the van later that same evening police found it abandoned. Tibbs testified in his own behalf; he recanted his inculpatory statements and presented an alibi.

The defendant argues that the State’s evidence establishes only his presence when Slider was shot and is not enough to convict him of attempted murder. In People v. Kessler (1974), 57 Ill. 2d 493, 315 N.E.2d 29, however, the supreme court affirmed a defendant’s conviction for attempted murder under similar circumstances. In that case the defendant waited in a car while his two associates broke into a tavern; the owner surprised them, and one of the burglars shot and wounded the owner with a gun they had discovered inside the building. Kessler’s cohort also shot at a policeman while they were fleeing on foot. The only difference between the facts here and those in Kessler is that Tibbs was aware during the commission of the crime that Smith had the shotgun. The evidence therefore was sufficient to convict the defendant of attempted murder.

The defendant next argues that he cannot be sentenced to an extended term of imprisonment. Section 5—8—2 of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005—8—2) permits the imposition of an extended term when either (People v. Hamilton (1980), 81 Ill. App. 3d 297, 401 N.E.2d 318) group of aggravating factors listed in section 5—5—3.2(b) (Ill. Rev. Stat. 1979, ch. 38, par. 1005—5—3.2(b)) exists. Subparagraph (1) of that section allows extended terms for repeat felons when certain conditions are met. Here the trial judge relied on subparagraph (2) which authorizes an extended term “[w]hen a defendant is convicted of any felony and the court finds that the offense was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty” (Ill. Rev. Stat. 1979, ch. 38, par. 1005—5—3.2(b)(2)). The defendant argues that section 5—5—3.2(b)(2) may be invoked against principals only and not accomplices; the defendant does not dispute the trial court’s characterization of the offense here as brutal and cruel within the meaning of the statute.

Assuming his guilt as an accomplice, the defendant reasons that the accountability provisions make him liable only for the elements of the offense and that the characteristics of the offense are not elements. The State does not need to plead and prove the aggravating factors listed in section 5—5—3.2(b) for an extended term to be imposed. (People v. Grier (1980), 90 Ill. App. 3d 840, 413 N.E.2d 1316 (interpreting subparagraph (1)); People v. Peddicord (1980), 85 Ill. App. 3d 414, 407 N.E.2d 89 (interpreting subparagraph (2)).) Peddicord said:

“Where a fact is essential to the grade or degree of an offense, it is, in effect, an element. However, the factors to be considered when imposing a sentence under the extended-term provision are not essential to the grade or degree of an offense, and thus are not elements of the offense charged. Therefore, these factors need not be pleaded or proved at trial.” 85 Ill. App. 3d 414, 418, 407 N.E.2d 89, 91.

Section 5—1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 5—1) provides:

“Accountability for Conduct of Another. A person is responsible for conduct which is an element of an offense if the conduct is either that of the person himself, or that of another and he is legally accountable for such conduct as provided in Section 5—2, or both.”

The defendant argues that because section 5—1 makes him responsible only for “conduct which is an element of an offense,” he is not responsible for conduct that is not an element of an offense, such as the brutal and cruel nature of the offense here.

The defendant mistakenly interprets the accountability provision, section 5—1, as making him liable only for elements of the offense and nothing more—or less. Although criminal statutes must be construed narrowly (People v. Lutz (1978), 73 Ill. 2d 204, 383 N.E.2d 171), we find no inconsistency between sections 5—1 and 5—5—3.2(b) (2) in sentencing accomplices to extended terms.

The defendant’s argument proves too much. Section 5—1 also applies to principals, for it says that one is responsible for conduct that is an element of an offense “if the conduct is * * * that of the person himself ° * By the defendant’s reasoning, then, principals may not be sentenced to extended terms because like accomplices they are liable only for elements of offenses. Although this argument was not raised in Peddicord, we note that the defendant in that case was a principal. Section 5—1 therefore provides no distinction useful to the defendant between principals and accomplices.

The defendant cites People v. Sangster (1981), 95 Ill. App. 3d 357, 420 N.E.2d 181, appeal allowed (1981), 85 Ill. 2d 572, to support his distinction between the guilt and punishment of accomplices. The statute interpreted there, however, uses different terms. Sangster dealt with section 5—8—4(a) of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005—8—4(a)), which permits a trial court to impose consecutive sentences for offenses committed in “a single course of conduct” and motivated by the same “criminal objective” when at least one of the offenses is a Class X or Class 1 felony “and the defendant inflicted severe bodily injury * * Sangster held that section 5—8—4(a) does not apply to accomplices, interpreting the phrase “the defendant inflicted severe bodily injury” to mean that only the person who performed the act falls within the scope of the statute.

Unlike the provision for consecutive sentences, section 5—5—3.2(b) (2) focuses on the offense rather than the offender, requiring that the trial court find “that the offense was accompanied by * * the nature of the act and not the identity of the actor permits the imposition of the enhanced penalty. This difference is a real one and is dispositive.

The defendant also relies on People v. Merchel (1980), 91 Ill. App. 3d 285, 414 N.E.2d 804; that case interpreted section 5—8—1(a)(1) of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005—8—1(a) (1), which authorizes a term of natural life imprisonment in the case of murder “if the court finds that the murder was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty.” Merchel parsed the statute in this way:

“Divided into its elements, the provision holds that a court may impose a natural life sentence for murder only if the murder was (1) accompanied by behavior which was (2) brutal and heinous and which (3) indicated wanton cruelty on the part of the perpetrator.” (Emphasis added) (91 Ill. App. 3d 285, 293, 414 N.E.2d 804, 810.)

Although this statute uses the same words as the extended term provision, we do not find the paraphrase persuasive. Merchel did not involve accountability; the defendant argued that the statute is unconstitutionally vague, and the court held that it is not.

The defendant attacks his sentence for another reason. He cites several excerpts from the record to show that the trial judge considered him a principal in the attempted murder even though he was convicted as an accomplice. The defendant is not arguing that accomplices must invariably receive shorter sentences than principals, but that when a conviction is based on accountability the trial judge is not free to disregard that and instead treat the defendant as a principal. The trial judge made several comments equating Tibbs’ role in the attempted murder with that of the principal, Smith. Yet the record also shows that the trial judge understood that Smith and not Tibbs fired the gun. Although accomplices share equal guilt with their principals and “ ‘may be punished in the same manner’ ” (People v. Dukett (1974), 56 Ill. 2d 432, 451, 308 N.E.2d 590, 600, quoting People v. Clements (1963), 28 Ill. 2d 534, 540, 192 N.E.2d 923, 926), the extent of a defendant’s participation in the offense is relevant in determining the appropriate sentence (People v. Morris (1969), 43 Ill. 2d 124, 251 N.E.2d 202). The trial judge’s comments here did not depart from the evidence but instead expressed his view regarding the defendant’s role.

We therefore affirm the conviction and sentence for attempted murder.

Affirmed.

WEBBER and TRAPP, JJ., concur.


author: JUSTICE BARRY

text:
    H. J. ANTONIDES et al., Plaintiffs-Appellees, v. PLASCON, INC., et al., Defendants-Appellants.
    Third District
    No. 81-208
    Opinion filed November 24, 1981.
    Rehearing denied February 1, 1982.

      Laurence J. Dunford, of Chicago, for appellants.
    Vincent P. Paulauskis, of Nutting, Thacker, Sacks & Paulauskis, Ltd., of Kankakee, for appellees.
   JUSTICE BARRY

delivered the opinion of the court:

Defendants Plascon, Inc., and William Reiland, present owner of Plascon, appeal from a summary judgment in favor of plaintiffs, H. J. Antonides and others, in an action on a note in the circuit court of Kankakee County.

This litigation arose out of plaintiffs’ sale of the stock and assets of Plascon to defendant Reiland. The total sale price was $84,000 with $60,000 paid in cash at closing on April 18, 1977, and $24,000 to be paid one year later on April 19, 1978. A judgment note for $24,000 was executed on behalf of the corporation and guaranteed by Reiland. The contract for sale of the corporate stock contained the following provision:

“IT IS FURTHER AGREED that on or before sixty (60) days of the Closing Date, the parties shall make a determination of any income tax liability incurred by the corporation from the beginning of the present fiscal year to the closing date and any such sum found due shall be credited against a certain Promissory Note in the Amount of Twenty Four Thousand Dollars ($24,000.00) # # ft ”

At the closing, the corporation was obligated for $55,200 on a note to the First National Bank of Kankakee, and as agreed in the contract, plaintiffs paid the debt after the stock had been transferred to Reiland. When the $24,000 note became due, Reiland refused to pay and consequently plaintiffs filed a complaint and confession of judgment on June 1, 1978. After the summons to confirm the confessed judgment was issued and served, defendants filed an answer, affirmative defense and counterclaim. The counterclaim asserted a set-off of $18,000 against the note on the ground that the corporation had incurred additional tax liability for the fiscal year ending October 31, 1977, when plaintiffs paid the debt of the corporation. Defendants’ theory is that the payment of the corporate debt was taxable income to the corporation. The trial court entered an order on October 6,1978, opening the judgment.

On May 22,1979, plaintiffs filed their first motion for summary judgment, alleging that the defendants’ counterclaim was spurious because the Internal Revenue Service had not assessed any additional taxes against the corporate defendant for the fiscal year in question. After the defendants filed a response to the motion, the trial court ruled that there was no dispute as to $6,000 of the debt since the set-off and counterclaim involved only $18,000. Accordingly a partial judgment was entered in favor of plaintiffs in the amount of $6,610.42. That judgment was paid and is not at issue in this appeal.

After the trial court found that the amount of tax liability was in dispute, that part of the case was put on the pretrial calendar, and finally on September 5,1980, plaintiffs filed a second motion for summary júdgment as to the contested amount. In this motion, plaintiffs alleged that they had sought an audit of tax liability from the Internal Revenue Service, that the Internal Revenue Service did not respond, and that, therefore, no additional tax liability had been incurred by the corporation. Defendants stood by their previous pleadings. The court ruled that there was no question of fact and entered judgment in favor of plaintiffs.

Defendants subsequently filed a motion to reconsider, attaching as exhibits amended Federal and State tax returns for the corporation reporting an increase in income from that previously reported which resulted in an additional Federal tax liability of $15,490 and an additional State tax liability of $2,281. The trial court denied the motion to reconsider on April 8,1981, and this appeal followed.

Defendants contend that, even though the basic facts of this case are not in dispute, the inferences that can be drawn from those facts are such that reasonable men would differ and, hence, that summary judgment was improperly granted. (See, e.g., Littrell v. Coats Co. (1978), 62 Ill. App. 3d 516, 279 N.E.2d 293.) In other words, defendants insist that there is a jury question whether the corporation incurred a tax liability when plaintiffs paid a debt of the corporation. Defendants argue that the question of whether tax liability was incurred is different than whether additional tax liability was assessed, so the failure of the Internal Revenue Service to respond to plaintiffs’ request for an audit should not be determinative.

We affirm the judgment of the trial court. First, as defendants themselves concede, the statute of limitations for additional tax liability against the corporation expired on January 15,1981; hence, the issue was moot by the time the trial court entered its order denying the motion to reconsider. Clearly, the preparation of amended returns, without any showing that those returns were filed and the tax liability paid, is not determinative. As best we can determine, the defendants have attempted to use a speculative tax liability as a set-off against a definite liability, and have avoided paying either one for more than three years.

Furthermore, we do not believe the question here is one of an inference to be drawn from the undisputed facts but rather is one of statutory interpretation with the statute in question being the Internal Revenue Code. Since interpretation of a statute is a question of law for the court and not a question of fact for the jury, summary judgment is an appropriate remedy in this case.

Finally, although not mentioned by either party, we think it significant that the act which allegedly gave rise to the claimed additional tax liability occurred after the closing date of the sale of the corporation. According to the provision of the contract which defendants rely upon, a set-off would be allowed only for any tax liability incurred by the corporation before the closing date. Thus, plaintiffs’ payment of the debt was not within the terms of the contract in any event.

For the reasons stated, we affirm the judgment of the Circuit Court of Kankakee County.

Affirmed.

ALLOY and HEIPLE, JJ., concur.


author: JUSTICE YONTZ

text:
    CAMP CREEK DUCK FARM, INC., Plaintiff-Appellant, v. SHELL OIL COMPANY et al., Defendants-Appellees.
    Fourth District
    No. 16832
    Opinion filed December 30, 1981.
    Modified ondenial of rehearing January 29, 1982.

      Robert D. Owen, Marshall A. Susler, and Darrel F. Parish, all of Owen, Roberts, Susler & Murphy, of Decatur, for appellant.
    Rosenberg, Rosenberg, Bickes, Johnson & Richardson, Chartered, of Decatur, and Heyl, Royster, Voelker & Allen, of Peoria (Rex K. Kinder and Roger R. Clayton, of counsel), for appellees.
   JUSTICE YONTZ

delivered the opinion of the court:

Plaintiff appeals from an order dismissing its third amended complaint. The complaint attempts to state a cause of action against each defendant based on strict liability. The trial court’s order dismissing the third amended complaint is affirmed in part and reversed in part.

I. The Complaint

The initial complaint in this action was filed on March 8, 1979. Following the dismissal of this complaint and subsequent dismissals of amended complaints, the third amended complaint was filed on September 23, 1980. The complaint contained six counts; the first three against defendant Shell Oil Company (Shell), and the last three against defendant Riverdale Chemical Company (Riverdale). Counts I and III are based on the theory that the products of defendants were inherently defective. Counts II and V are based on the theory that the products are defective and unreasonably dangerous for failure to give adequate warning. Counts III and VI allege inherent defectiveness as well as failure to give an adequate warning.

The complaint alleges that a division of the defendant Shell Oil Company manufactured the substance aldrin, which was the active ingredient in a “tracking powder” rat poison. The rat poison was manufactured by defendant Riverdale by mixing the aldrin with an inert powder. Defendant Riverdale then sold this tracking powder to Illini Pest Control and Service, Inc. (Illini). Plaintiff alleged that defendant Shell sold the aldrin to defendant Riverdale, and defendant Riverdale sold its tracking powder to Illini, each knowing that the powder was very effective as a rodenticide and that it would be used as a tracking powder.

Plaintiff operates a federally inspected duck processing plant, and engaged Illini to conduct an ongoing rat control program for its duck farm. As part of this program, Illini used a tracking powder rat poison containing aldrin. The tracking powder was placed on plaintiffs farm in areas where his ducks ran and fed. This caused the earth and buildings upon the farm to be increasingly contaminated with aldrin and dieldrin, which is a compound formed when aldrin decomposes.

Aldrin and dieldrin have a strong propensity to accumulate in living organisms. Approximately a year after the rat poison was used, plaintiff was required by the Federal government to destroy many thousands of ducks because they contained amounts of aldrin and dieldrin in excess of that allowed by Federal regulations. The chemicals also leave a significant residue in the environment for in excess of one year and as much as 50 years. This contamination caused plaintiffs farm to be unfit for the only purpose for which it is suited, namely, raising ducks.

Count I alleges that the aldrin was defective and unreasonably dangerous at the time it left control of Shell, and count IV alleges that the tracking powder, containing aldrin, was defective and unreasonably dangerous at the time it left defendant Riverdale, in that these products had the propensity to accumulate in substantial quantities in the tissues of animals when ingested or otherwise absorbed into the bodies of animals.

Counts II and V allege that defendants knew of the danger of using aldrin on a poultry farm since the flesh of the poultry would be contaminated while at the same time causing no apparent physical harm or toxicosis to the poultry. Defendants failed to give any warning of this danger although they knew or should have known that such harm would result due to the failure to give a warning of such danger. Consequently, the aldrin, and the tracking powder containing the aldrin, were unreasonably dangerous at the time it left control of each defendant in that there was no adequate warning.

Counts III and VI allege the aldrin and tracking powder containing aldrin were unreasonably dangerous at the time they left control of each defendant in that they had the propensity to contaminate plaintiff’s farm leaving it unfit for a period of from one to fifty years. Also, the failure to warn of the danger of this contamination, notwithstanding the fact that each defendant knew or should have known of the consequences of the failure to warn, rendered the products unreasonably dangerous.

Motions to dismiss this third amended complaint were filed by defendant Shell on September 26, 1980, and by defendant Riverdale on October 14, 1980. Both motions were granted on all counts and the complaint was ordered dismissed with prejudice on November 26, 1980. Notice of appeal was filed on December 12, 1980.

II. Inherent Defectiveness

Plaintiff has alleged in counts I and III that the product aldrin is defective because it has the propensity to accumulate in the tissue of living organisms, and in counts III and VI that the product is defective in that it has the propensity to contaminate plaintiff’s farm leaving it unfit for a period of from one to 50 years. Plaintiff does not cite any authority on this point, but merely asserts that whether a product is unreasonably dangerous is a question of fact and not law.

The theory of strict liability in tort as advanced in section 402A of the second torts restatement (Restatement (Second) of Torts §402A (1965)), was adopted by the Illinois Supreme Court in Suvada v. White Motor Co. (1965), 32 Ill. 2d 612, 210 N.E.2d 182. Comment! to section 402A, entitled “[unreasonably dangerous,” provides that “[t]he article sold must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.” Comment g to section 402A, entitled “[defective condition,” provides that the rule applies when the product is “in a condition not contemplated by the ultimate consumer, which will be unreasonably dangerous to him.” This definition of a defective product was approved by our supreme court in both Dunham v. Vaughan & Bushnell Manufacturing Co. (1969), 42 Ill. 2d 339, 247 N.E.2d 401, and Hunt v. Blasius (1978), 74 Ill. 2d 203, 384 N.E.2d 368.

In Blasius, the court refused to find that a sign post along a highway was defective due to the failure to design it with a “break-away” design. The court stated:

“Virtually any product is capable of producing injury when put to certain uses or misuses. * * * Injuries are not compensable in products liability if they derive merely from those inherent properties of a product which are obvious to all who come in contact with the product. (Genaust v. Illinois Power Co. (1976), 62 Ill. 2d 456, 467.) The injuries must derive from a distinct defect in the product, a defect which subjects those exposed to the product to an unreasonable risk of harm. The Restatement (Second) of Torts concludes that strict liability applies only when-the product is ‘dangerous to an extent beyond that which would be contemplated by the ordinary [person] * * *, with the ordinary knowledge common to the community as to its characteristics.’ ” 74 Ill. 2d 203, 211-12, 384 N.E.2d 368, 372.

Similarly, we do not believe that a rat poison manufactured as a rat poison and sold as a rat poison for use as a rat poison is defective or dangerous to an extent beyond that which would be contemplated by the ordinary consumer of rat poison simply because the poison has the propensity to contaminate living beings other than rats. Therefore, counts I and IV must fail and the trial court is affirmed on those counts.

The allegations of counts III and VI, that the products were defective due to their propensity to contaminate the land for from one to 50 years, present a harder question. At this point we note that a motion to dismiss admits facts well pleaded but does not admit conclusions of law or fact unsupported by allegations of specific facts upon which conclusions rest. (Zamouski v. Gerrard (1971), 1 Ill. App. 3d 890, 275 N.E.2d 429.) A complaint should not be dismissed for failure to state a cause of action unless it clearly appears that no set of facts could be proved under the pleadings which would entitle plaintiff to relief. (Rudnick v. Vokaty (1980), 84 Ill. App. 3d 1003, 406 N.E.2d 105.) We believe that contamination for a period of one to 50 years is beyond the expectation of the ordinary consumer. However, there is nothing in the complaint to suggest that this failure to decompose is an inherent, defect. If the products were unreasonably dángerous, it is because of the failure to give an adequate warning of this danger. Our supreme court has recognized a distinction between products which áre inherently defective and products which are in a defective condition unreasonably dangerous because of the absence of-an adequate warning accompanying the product. (Woodhill v. Parke Davis & Co. (1980), 79 Ill. 2d 26, 30, 402 N.E.2d 194, 196.) Here, as in Blasius, the complaint alleges no legally cognizable inherent defect. Therefore, no cause of action is stated by those portions of counts III and VI alleging inherent defectiveness, and the trial court is affirmed to that extent on those counts.

III. Adequacy of Warning

Counts III and VI further alleged, as did counts II and V, that the product of each defendant is unreasonably dangerous due to a failure to give an adequate warning to plaintiff. Comment j to section 402A provides that “[i]n order to prevent the product from being unreasonably dangerous, the seller may be required to give directions or warning, on the container, as to its use. * 0 * Likewise in the case of poisonous drugs, or those unduly dangerous for other reasons, warning as to use may be required.” (Restatement (Second) of Torts §402A (1965).) The premise that a product can be unreasonably dangerous due to the inadequacy of a warning was incorporated into Illinois law by the holding in Palmer v. Avco Distributing Corp. (1980), 82 Ill. 2d 211, 412 N.E.2d 959.

In the present case, a copy of a warning is included in the record immediately following plaintiff’s first complaint. The complaint, however, does not state that this warning is incorporated into the complaint nor is the warning marked as an exhibit or in any way to indicate it was incorporated into the complaint. The subsequent amended complaints are not followed by a copy of the warning and also do not purport to incorporate the warning. Section 36 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 36) provides that “[i]n pleading any written instrument a copy thereof may be attached to the pleading as an exhibit. In either case the exhibit constitutes a part of the pleading for all purposes.” While we have seen no case delineating the proper manner to attach an instrument for these purposes, we believe it is clear that the pleading must make reference to a specifically identified instrument, and it must be made clear that the instrument is intended to be incorporated as a part of the pleading. Although defendants’ motions to dismiss either 'quote from the warning or refer to “exhibit A” and purport to incorporate this exhibit into the motion, where there is no such exhibit it cannot be incorporated. Once again, on a motion to dismiss, it is the facts well pleaded which are admitted, not the allegations of the motion to dismiss. (Zamouski.) We are compelled to conclude that the warning is not properly before this court, and we cannot include it in our consideration of the issues.

Counts II and V of the complaint allege defendants failed to give any warning of the danger of contamination to the ducks and that the products were sold without giving an adequate warning. As we noted in the previous section, the products were not dangerous to an extent beyond that which would be contemplated by the ordinary consumer of rat poison simply because the poison also had the propensity to contaminate ducks. No warning of this danger was necessary, and any warning that was given would be adequate. Therefore, the trial court’s dismissals of counts II and V are affirmed. This court is cognizant of the warning requirement imposed on such products as aldrin by the Uniform Hazardous Substances Act of Illinois (Ill. Rev. Stat. 1979, ch. 1111/2, par. 251 et seq.). However, there is no allegation that those requirements were not met or that failure to meet these requirements contributed to the injuries. Therefore, our determination that there was no duty to warn of this particular injury in no way detracts from the requirements of the Uniform Hazardous Substances Act-of Illinois.

Counts III and VI allege that the products were sold without any warning of the contamination of the land for a period of from one to 50 years. The foregoing was a sufficient allegation that the product manufactured was unreasonably dangerous. Therefore, those portions of counts III and VI which allege unreasonable dangerousness due to the failure to give an adequate warning state a cause of action, and the trial court is reversed to that extent.

Affirmed in part, reversed in part, and remanded for further proceedings not inconsistent with this opinion.

GREEN, P. J., and TRAPP, J., concur.