text:
    Donald Janssen, Plaintiff-Appellee, v. Howard Hook, Defendant-Appellant.
    (No. 70-243;
    Second District
    August 9, 1971.

      Petty and Kightlinger, of Mt. CarroH, (William B. Petty, of counsel,) for appeHant.
    Craig E. McGuire, of Polo, for appeHee.
   Mr. JUSTICE ABRAHAMSON

delivered the opinion of the court:

On March 5, 1969, the plaintiff filed his complaint against the defendant for an alleged breach of an oral sales agreement and asked for damages in the amount of $3,200.00. The defendant filed a general denial and a counterclaim for $2,000.00 for breach of warranty as to the condition of the equipment purchased. The matter proceeded to trial, with no jury, on August 8, 1969, and the court entered a “preliminary opinion” that found on the issues in favor of the plaintiff but requested further evidence in regard to the value of the subject matter of the sale. A second hearing was accordingly held on October 24, 1969, whereafter judgment was entered in favor of the plaintiff in the amount of $2,300.00. After post-trial motions were denied, the defendant appealed from that judgment.

At the first hearing, the plaintiff testified that after several conversations with the defendant, it was agreed that he would sell two milk trucks and certain other equipment together with the rights to two milk routes to the defendant for $8,525.00. The defendant was to assume the balance of $4,950.00 owed by the plaintiff on the trucks and pay the difference in cash. On December 15, 1967, the plaintiff transferred title to the equipment and trucks to the defendant but received only $400.00 in payment. The wife of the plaintiff testified that she overheard the conversation between the parties and the defendant promised to pay $3,600.00 in cash and assume the unpaid balance on the trucks.

The defendant testified that he had agreed to “take over” the trucks for the $4,950.00 still owed on them and pay an additional $400.00 for one of the milk routes but nothing on the other route since the plaintiff himself had paid nothing for it.

It was disclosed at the hearing on October 24 that the plaintiff had purchased the two trucks and equipment from one Gene Behrens in September 1966 for $7,500.00. In addition, the plaintiff took over Behren’s milk route at that time and paid him a percentage of the proceeds received from Kraft Foods for milk obtained on the route. The plaintiff testified further that after he purchased the trucks from Behrens he replaced an engine in one for a cost of $950.00. Other witnesses testified for the plaintiff that the value of the equipment and routes sold was at least $7,500.00.

The defendant himself testified that the trucks were in poor condition when he obtained them and that he was compelled to spend considerable amounts of money to get “* * * them back into decent shape where a guy could haul milk * # Bills paid by the defendant for various work done on the trucks were received in evidence together with estimates prepared by a mechanic for additional maintenance. Behrens, the original owner, testified for the defendant that in his opinion the trucks were probably not worth even the $4950.00 in December, 1967. He also testified that the milk route itself was of little worth although he acknowledged receipts of approximately $100.00 a month for his share of the income derived from them. An officer of the bank holding the security interest on the trucks and equipment also testified for the defendant and stated that he was familiar with those items and that they were not worth more than the balance still owed on them.

After all proofs had been submitted, the trial court found that the parties had agreed to a transfer of the equipment and routes for $7500.00, $4800.00 of which was the balance of the assumed obligation to the bank. Of the difference of $2700.00, the defendant had paid $400.00 leaving a balance of $2300.00, the amount of the judgment.

The defendant here contends that tire judgment thus entered was against the manifest weight of the evidence and that the trial court did not consider the testimony of the only two disinterested witnesses to appear, namely, the banker and original owner.

It is, of course, well established that the findings of a trial court will not be disturbed on review unless manifestly and palpably wrong or against the weight of the evidence. (Ross v. 311 North Central Avenue Bldg. Corp., 264 N.E.2d 406, 412.) Where, as here, the matter is heard without a jury, it is the province of the trial judge to determine the credibility of the witnesses, weigh the evidence, and make the ultimate determinations of facts. Those determinations will not be disturbed unless they are manifestly against the weight of the evidence. (Country Mutual Insurance Company v. Murray, 97 Ill.App.2d 61, 75, 239 N.E.2d 498, 506; Hall v. Illinois Nat. Ins. Co., 34 Ill.App.2d 167, 173.) We are not able to say that the findings of the trial court in this case were against the manifest weight of the evidence. The credibility of the witnesses for the respective parties was, as we have seen, a matter for the trial judge to consider. There was sufficient competent evidence to support the findings of the court and we will not disturb those findings on review.

The defendant also contends that the trial court erred in its denial of his counterclaim based on the breach of expressed or implied warranties as provided in section 2 — 313 and 2—315 of the Commercial Code. Ill. Rev. Stat. 1969, ch. 26, pars. 2—313, 2—315.

Section 2 — 313 provides that an express warranty can be created by any affirmation of fact by the seller “which relates to the goods and becomes part of the basis of the bargain * * The existence of an express warranty is a factual issue to be determined by the trier of fact. (Capital Equipment Enter., Inc. v. North Pier Term. Co., 117 Ill.App.2d 264, 269, 254 N.E.2d 542, 544.) The defendant testified that the plaintiff advised him that one of the trucks was in “good condition” when, in fact, it needed extensive repair. The defendant admitted, however, that he had inspected and worked with the trucks prior to his purchase of them and was aware that they needed repairs. Under the circumstances, the finding of the trial court that an express warranty, as defined by the Code, had not been made was not against the manifest weight of the evidence.

Section 2-315 defines the so-called warranty of fitness for a particular purpose and codifies the requirements that the purchaser makes known to the seller the purpose for which an article is purchased and relies on the seller’s skill or judgment. (Ill. Rev. Stat. 1969, ch. 26, par. 2-315; Kirk v. Stineway Drug Store Co., 38 Ill.App.2d 415, 421.) Again, the existence of such a warranty is a question of fact to be determined by all the circumstances surrounding the transaction. Although the plaintiff was obviously aware that the defendant purchased the trucks to be used on a milk route, there is nothing to show that such use would differ from the ordinary use of trucks in general or that the plaintiff had any special skills relative to trucks on which the defendant relied.

We therefore conclude that the findings and judgment of the trial court were not against the manifest weight of evidence and that they ought to be affirmed.

Judgment affirmed.

MORAN, P. J., and SEIDENFELD, J., concur.


source: Caselaw Access Project

author: Mr. JUSTICE STROUSE

license: Public Domain

text:
    The American National Fire Insurance Company, Plaintiff-Appellee, v. Thomas Scholl, Defendant-Appellant.
    (No. 70-247;
    Second District
    August 12, 1971.
    John C. Pagnatelli, of Sterling, for appellant.
    Richard Caldwell, of Oregon, and Konstans & Catella, of St. Charles, for appellee.
   Mr. JUSTICE STROUSE

delivered the opinion of the court:

Defendant, Thomas Scholl, appeals from a judgment order in favor of the Plaintiff in the amount of $876.00, plus $37.50 court costs for the premium for hail insurance for the year 1968.

This conflict concerns premiums on an insurance contract for the year 1968 and whether the Plaintiff’s signature thereon was a forgery or whether it was cancelled.

There were direct conflicts in the testimony between the parties which were heard and resolved by the trial judge’s finding in favor of the Plaintiff.

The Appellant lays great stress on the fact that the Plaintiff should have the burden of proving beyond a reasonable doubt the cancellation of the contract and that the judgment is against the manifest weight of the evidence.

It is well settled in Illinois that the burden of proof in civil cases is by a preponderance of the evidence. Watt v. Kirby (1853), 15 Ill. 200. Commerce Union Bank v. Midland National Insurance Company (1964), 53 Ill.App.2d 229, 202 N.E.2d 688.

It is further well settled that the Reviewing Court will not set aside a judgment unless it is clearly and manifestly against the weight of the evidence. Nichols v. Sargent (1887), 22 Ill.App. 403; Commerce Union Bank v. Midland National Insurance Company (1964), 53 Ill.App.2d 229, 202 N.E.2d 688.

It is clear from the record that the judgment is not clearly and manifestly against the weight of the evidence.

Judgment affirmed.

SEIDENFELD and GUILD, JJ., concur.


author: Mr. JUSTICE ABRAHAMSON

text:
    Agnes Borgeson, Plaintiff-Appellant, v. Fairhaven Christian Home, Defendant-Appellee.
    (No. 70-266;
    Second District
    August 16, 1971.

      Canfield, Canfield, Franks, Wylde & Hoad, of Rockford, (Robert Hoad, of counsel,) for appellant.
    Reese, Schlueter & Ecklund, of Rockford, for appellee.
   Mr. JUSTICE ABRAHAMSON

delivered the opinion of the court:

The plaintiff, Agnes Borgeson, appeals from an order entered September 1, 1970, by the circuit corut of Winnebago County granting summary judgment in favor of the defendant.

The amended complaint alleged that on May 16, 1967, the parties entered into a contract whereby the plaintiff would pay the sum of $5300.00 and a monthly charge of $150.00 thereafter for which the defendant would furnish her lifetime care in the residential apartment owned by them. It states further that the plaintiff, in reliance on the contract, sold her home and made other personal and financial arrangements and did move into Fairhaven Home on March 31, 1968. On April 26, 1968, it is further alleged, she was forced to sign, under what is described in the complaint as duress of circumstances, a second contract that provided that the plaintiff would pay in addition to the $150.00 monthly charge her pro-rata share of any real estate taxes that might be assessed against the Home. As it turned out, taxes were assessed and the plaintiff’s monthly charge was increased to $157.50 to include her prorata share. The complaint also alleged that the plaintiff was compelled to sign the second agreement because she was (1) 71 years old, (2) a recent widow, (3) had relied upon the first contract for lifetime care, and (4) had changed her financial circumstances on that reliance. The complaint sought to rescind the second contract and maintain the earlier agreement as binding on the parties.

Attached to the complaint as exhibits are copies of certain brochures prepared by Fairhaven describing the proposed facilities and their costs. They include a description of a “Type D” room that could be obtained for a “founder’s fee” of $5300.00 and a monthly charge of $150.00. The actual contract signed by the parties on May 16, 1967, was attached to the defendant’s answer and affirmative defense. It is entitled a “Deposit Agreement” and provides for a $1750.00 deposit on the total fee of $5300.00 with the balance to be paid at the time of entrance into the Home. It also provides that the plaintiff could withdraw from the agreement at any time prior to her actual move into the Home and obtain a refund of her deposit. The Deposit Agreement does not mention a monthly service charge but does provide that the parties execute a “Residence Contract” upon admission to the Home at which time the earlier agreement would, in its terms, “expire.”

The Residence Contract signed by the parties on April 26, 1968, is also attached to the defendant’s answer and provides for a monthly charge of $150.00 and, in addition, tire disputed pro-rata share of any real estate taxes assessed against the Home.

The defendant’s motion for summary judgment included all the pleadings previously filed in the cause with exhibits and a transcript of a discovery deposition of the plaintiff taken on April 30, 1970. At that time, tire plaintiff stated that she was in good physical and mental health and had been in May of 1967 and April of 1968. She further testified that on April 26, 1968, a Mr. Hawkinson of the Home came to her room and asked her to sign the second agreement. They discussed the provision for payment of any assessed taxes and Mr. Hawkinson told her that he did not believe that any tax would in fact be assessed. The plaintiff then testified that she then “had to sign that agreement.” She was then asked the following questions:

“Q. What force was used by anyone from Fairview Christian Home?
A. Hawkinson came into me and made me sign it.
Q. What did he do to make you sign it?
A. Oh, boy. Talked.
Q. All right. What did he say? Did he say anything other than what your have already testified?
A. No. I told you.”

The right to summary judgment is established by statute to enable the cotut to determine if there is any genuine factual issue to be resolved. (Ill. Rev. Stat. 1969, ch. 110, par. 57.) If the pleadings, exhibits and affidavits disclose that there is a genuine issue as to any material fact, summary judgment must not be granted. (American National Bank & Trust Co. v. Lembessis, 116 Ill.App.2d 5, 17; Reed v. Albanese, 78 Ill.App.2d 53, 57.) However a mere allegation that a genuine issue exists is not sufficient to preclude summary disposition if one does not appear from the record. Giampa v. Sunbeam Corp., 68 Ill.App.2d 425, 429.

From the record before us, it is clear that there was no genuine issue as to the facts of the case, but only the interpretation to be placed upon them, and that summary judgment was proper. There is no dispute that the plaintiff was a 71 year old widow who had sold her home and moved into the defendant’s home prior to the time the parties signed the agreement on April 26, 1968. It is also not disputed that the plaintiff believed the monthly charges would be $150.00 although the only other contract she signed made no mention of the charges to be imposed. It thus remains to be determined if the plaintiff, as a result of these circumstances, was compelled to sign the second contract by force of her circumstances.

Duress under the common law usually meant nothing short of a reasonable apprehension to life or limb but the doctrine has been extended in Illinois to include, in certain circumstances, duress of circumstances and moral duress. (Slade v. Slade, 310 Ill.App. 77, 88.) “Moral duress consists of imposition, oppression, undue influence or the taking of undue advantage of the business or financial stress or weakness of another.” (Pittman v. Lageschulte, 45 Ill.App.2d 207, 219.) Relief has been granted in those cases where the doctrine has application on the basis that the other party has obtained an advantage which in equity and good conscience he should not be permitted to retain. (People ex rel. Buell v. Bell, 20 Ill.App.2d 82, 95; Pittman v. Lageschulte, ibid.) In all of the cases we have read, including the Slade case cited by the plaintiff, the conduct of the party obtaining the advantage is itself tainted with some degree of fraud or wrongdoing.

There is nothing to indicate, nor is it alleged, that the Home perpetrated or attempted to perpetrate any fraud on the plaintiff. The plaintiff was furnished a residence in accordance with their agreement and the monthly charges, except for the pro-rata share of the taxes, were exactly as advertised in the promotional brochures. The plaintiff was informed that the Residence Agreement included a provision for the payment of taxes and that she would be hable for that payment if taxes were in fact assessed. The opinion of Mr. Hawkinson that there probably would be no taxes assessed could hardly be considered an attempt to take advantage of the plaintiff since it was generally believed at that time that homes for senior citizens would be exempt from real estate taxes.

In short, we find nothing to indicate that the plaintiff, because of her age or the condition of her circumstances, was taken advantage of in this transaction. Accordingly, the summary judgment in favor of the defendant was proper and will be affirmed.

Judgment affirmed.

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


author: Mr. PRESIDING JUSTICE THOMAS J. MORAN

text:
    Ezra Leach, Plaintiff, v. Howard Eychaner, d/b/a Blue Van and Storage et al., Defendants, Third-Party Plaintiffs-Appellants.—(Arvidson Cabinet Co., Third-Party Defendant-Appellee.)
    (No. 70-209;
    Second District
    August 24, 1971.

      Williams, McCarthy, Kinley and Rudy, of Rockford, for appellant.
    Sype and Kalivoda, of Rockford, for appellee.
   Mr. PRESIDING JUSTICE THOMAS J. MORAN

delivered the opinion of the court:

Plaintiffs appeal the trial court’s judgment on the pleadings which dismissed their third-party complaint for a failure to state a cause of action.

The sole issue is whether an indemnity agreement between the parties, contained in a leasing arrangement, indemnified the plaintiffs against their own negligence with respect to the injury claimed.

The pleadings show that tire defendant, Arvidson Cabinet Co., rented the first floor of a warehouse from Mildred Eychaner, d/b/a Allied Warehouses, with the exception of certain space occupied by her husband, Howard Eychaner, d/b/a Blue Van and Storage (hereinafter, plaintiffs). The lease contained a provision, a portion of which stated:

“* * * and that ARVIDSON will at all times protect, indemnify and save and keep harmless ALLIED WAREHOUSES and BLUE VAN & STORAGE against and from any and all loss, cost, damage or expense, arising out of or from any accident or other occurrence on or about said premises, causing injury to any person or property whomsoever or whatsoever * #

Later, plaintiff jointly rented a gasoline lift truck to defendant. Defendant’s employee, Leach, was injured when the truck exploded while he was operating it. Leach sued plaintiffs, alleging in one of the counts, that they were negligent. Plaintiffs then filed a third party complaint against defendant asserting indemnity for all damages recovered by Leach, relying on the indemnification covenant of the warehouse lease. This third party complaint alleged the existence of the truck rental lease but the lease itself was neither attached or described. Defendant’s motion to dismiss the third party complaint for faHure to state a cause of action was granted.

Plaintiffs’ argument states the pertinent law, reviews cases containing similar language, attempts to distinguish the cases relied upon by the trial court, and claims the intent of the provision was to provide indemnity for the accident in question.

We agree with plaintiffs concerning the applicable law. It provides that contracts for indemnification against the indemnitees are not against public policy. (Patent Scaffolding Co. v. Standard Oil Co. (1966), 68 Ill.App.2d 29.) Such contracts are to be construed in the same manner as other contracts, and the primary rule of construction is that the court must seek to ascertain the intentions of the parties at the time of the contract by an examination of the contract as a whole. (Gay v. S. N. Nielsen (1958), 18 Ill.App.2d 368, 374.) While no exact form of language is necessary for the indemnification to occur, the provisions must be “carefuHy scrutinized and strictly construed; they must clearly show the intention of one party to protect itself from claims arising from its own acts of negligence and the intention of the other to assume these obligations.” DeTienne v. S. N. Nielsen Co. (1963), 45 Ill.App.2d 231, 233; Westinghouse Co. v. Bldg. Corp. (1947), 395 Ill. 429, 433.

Plaintiffs claim that the language, "any and all”, employed in the lease, is sufficiently broad to indemnify them against their own negligence. United States Steel Corp. v. Emerson-Comstock Co. (N.D. Ill. 1956), 141 F. Supp. 143.

In our view the nine “similar” cases cited by plaintiff are of no avail in the present circumstances. In each case the indemnification provision contained language limiting the scope of the covenant to injuries arising out of the performance of the agreement in which the provision appeared. For example, in Bentley v. Palmer House Company (1964), 332 F.2d 107, an exhibitor rented space in a convention hall under an agreement whereby the exhibitor agreed to indemnify the hotel “from and against any and all liability and expenses for personal injury and property damage or loss arising from or out of the use by the exhibitor of its exhibit space or its activity in connection herewith, # (p. 108) When Bentley, an injured employee of the indemnitor, sued, the Court held the language any and aH” to be “clear, explicit and unambiguous and demonstrates to our satisfaction that the intention of the parties was to provide indemnity for appellants against their own negligence.” (p. Ill)

The strict construction, which we adopt, receives support from Halperin v. Darling & Co. (1967), 80 Ill.App.2d 353 and Ford Motor Company v. Commissary, Incorporated (N.D. Ill. 1968), 286 F.Supp. 229.

In Halperin, L. & L. Auto, defendant, leased a truck to plaintiff. The lease required defendant both to furnish the truck and to maintain it and contained an agreement by plaintiff to indemnify and save harmless the defendant from “* ° * any loss or liability whatsoever with respect to or arising out of or in the course of the operation of any truck leased hereunder * * Plaintiff was injured by the truck, allegedly due to faulty maintenance by defendant. The Appellate Court construed the contract by saying the injury did not arise from the operation of the vehicle and that defendant should not have been dismissed out of the suit. The court continued, “No intention is manifest through any wording in the contract that L. & L. Auto be held harmless from damages arising out of its own negligence in the maintenance of the vehicle. If it was intended that plaintiff save L. & L. Auto harmless from its own negligence in this regard the contract should have provided that the lessee would hold the lessor harmless from liability arising out of "the operation or the maintenance’ of the truck, or wording which otherwise manifested such intention.”

In Ford Motor Company, defendant operated a commissary in plaintiff’s plant. Defendant’s employee slipped on a wet floor, a condition caused by a leaking kettle. Plaintiff had notice of the leak, but had failed to repair it. The employee received a judgment from plaintiff and plain-tic sued defendant for indemnification. The contract provided defendant would hold plaintiff harmless for injuries arising “out of the operation of said cafeteria.” The word “operate”, however, was used in two senses in the contract: in one sense, the defendant was to operate the cafeteria; in the other, plaintiff was to furnish and maintain the equipment for the operation of the cafeteria. The court concluded that the word “operation”, as used in the indemnity provision, meant that defendant agreed to indemnify Ford for any losses Ford might suffer as a result of the manner in which Commissary performed or failed to perform the duties imposed upon it in the operation of the commissary and thus Ford was liable for its failure to perform its duties in the maintenance of the cafeteria.

Thus, these courts limited the application of the indemnity provision to the exact wording in the clause even though there was language in other provisions in the contract which could be construed to provide more expansive protection. Here we limit the application of the provision to the intent of the parties as expressed in our reading of the contract as a whole.

We are not persuaded by plaintiff’s attempts at distinguishing two cases cited by the trial court in its memorandum opinion. In Westinghouse Co. v. Bldg. Corp., supra, the court merely enunciated the established rules of construction which we have set out above. In Schek v. Chicago Transit Auth. (1969), 42 Ill.2d 362, the court found that the injury incurred was within the scope of the intention of the parties because defendant’s negligence was expressly included and the incident occurred while in performance of the agreement.

Our disagreement with plaintiffs arises in the construction of the scope of injuries for which the indemnification was intended. Plaintiffs would read the portion, “arising out of or from any accident or other occurrence on or about said premises”, as covering any conceivable type of injury on the premises, including, as counsel stated in oral argument, an automobile accident between the parties in the parking lot of the warehouse.

The indemnity clause herein, contained no express statement covering the plaintiffs’ own negligence (as found in Schek); nevertheless, we believe the verbiage used sufficient to indemnify plaintiffs from their own negligence when such acts related to the leasing of the premises. Rios v. Field (Ill.App. 1971), 280 N.E.2d 99, 101. The injury claimed herein, however, did not arise from the use of the premises, but from the use of the fork lift truck. Under the circumstances of this case, we do not believe it was the intent of the parties, at the time of executing the warehouse lease, to extend the conditions of the indemnity clause to cover a separate legal relationship entered into by the parties at a later date.

Consequently, the judgment of the trial court is correct and hereby affirmed.

Judgment affirmed.

ABRAHAMSON and KRAUSE, JJ„ concur.


author: Mr. JUSTICE SEIDENFELD

text:
    Janet Landis, Petitioner-Appellee, v. Miles Homes Incorporated, et al., Defendants-Appellants.
    (No. 70-158;
    Second District
    September 7, 1971.

      Nettles & Mahoney, of Freeport, for appellants.
    Garard & Moehle, of Oregon, for appellee.
   Mr. JUSTICE SEIDENFELD

delivered the opinion of the court:

Defendants appeal from the trial court orders denying their motions to set aside a tax deed and to be permitted to redeem.

Defendant, Darrell Diehl, and his then wife occupied premises owned by Diehl’s parents; they took title by warranty deed dated and recorded March 16, 1965. Prior to acquiring title, however, Darrell Diehl and his wife had executed a mortgage to the premises to defendant Miles Homes Inc. to secure an improvement loan. The mortgage was dated and recorded May 15, 1964.

As a tax sale held on October 23, 1967, Janet Landis, the tax deed petitioner, purchased the unpaid and delinquent real estate taxes levied on the premises for the year 1986. On June 20, 1969, she filed her petition for an order directing the issuance of a tax deed upon the expiration of the redemption period. Notice of sale and notice of the filing of the petition were published in the manner set forth in the statute. (Ill. Rev. Stat. 1969, ch. 120, pars. 744,747.) Diehl and his wife were personally served with the combined notice of the sale and notice of the application for a tax deed. Miles Homes Inc. was not served.

On November 3, 1969, the court entered an order for the County Clerk to issue a tax deed. A tax deed was issued by the County Clerk on the same date and recorded November 7, 1989. (This tax deed erroneously stated that the date of tax sale was October 23, 1969, rather than the correct 1967 date; and it was issued on the basis of the court’s order without that order having been first filed in the Circuit Clerk’s office with a certified copy given to the County Clerk, as is provided in the statute.)

On December 3, 1969, within the thirty day period after the entry of the November 3rd order, Miles Homes filed a motion to vacate pursuant to the provisions of Ill. Rev. Stat. 1969, ch. 110, pars. 68.3 and 50(7). The corporation contended that (1) the November 3 order and tax deed were void because Miles was a “mortgagee of record” within the provisions of ch. 120, pars. 744 and 747 (supra), and, as such, had been entitled to personal notice; and (2) the November 3rd order for a tax deed had not been filed with the Clerk of the Circuit Court and, therefore, was not “entered” according to Ill. Rev. Stat. 1969, ch. 110A, par. 272; and Miles contended that the tax deed, having thus been issued upon an order having no force or effect, was a nullity.

During the course of the various hearings on the motion to vacate, the November 3rd, 1969, order found its way into the Circuit Court file, and a certified copy dated December 4, 1969, somehow appeared in the County Clerk’s files; but the record does not explain how this occurred. The trial court, referring to a “corrected” tax deed purporting to have been issued on January 26, 1970, — although no such document appears in the record — , entered an order on February 19, 1970, denying defendant’s motion to vacate the November 3rd order. This order was later vacated by the court because the wording was unclear.

Thereafter, on April 7, 1970, the court entered an order, based upon its Memorandum Opinion of the same date, which denied Miles’ December 3rd, 1969, motion. The thrust of the court’s opinion was that Miles had no standing to set aside the tax deed since it was a stranger to the record chain of title and, as such, had no right to redeem, from which it was said to follow that Miles had no standing to attack the proceeding. The court further concluded that even if Miles had the right to redeem, it had failed to do so, even though it had had actual notice of the final date for redemption. The court concluded that even if the November 3rd, 1969, tax deed was invalid as not having been issued pursuant to a prior certified copy of the order for the tax deed, the procedure provided by statute, the January 26th, 1970, tax deed would be effective since it was issued pursuant to a certified copy filed by the County Clerk on December 4, 1969.

We conclude that the controlling issue was whether Miles Homes Inc. was entitled to notice of the tax deed proceedings.

Ill. Rev. Stat. 1989, ch. 120, pars. 744, 747 provide for notice to various persons specifically “including trustees and mortgagees of record” (emphasis added). The interest of Miles Homes in the property existed by virtue of a mortgage. However, its mortgage cannot be considered to be “of record” merely because it was recorded. To constitute the constructive notice to third persons contemplated under Ill. Rev. Stat. 1969, ch. 30, par. 29 an instrument must be in the chain of title. Miles mortgage was, however, recorded prior to the conveyance of title to defendant Diehl and his wife. The record of a mortgage given prior to the time of the acquisition of record title by the mortgagor is not in the chain of title and is not constructive notice to third persons. (Leeser v. Kibort (1927), 243 Ill.App. 258, 261; Capper v. Poulsen (1926), 321 Ill. 480, 482, 321 Ill. 480, 482. See also 45 Am. Jur. 477; and McNitt v. Turner (1872), 83 U.S. 352.) A prospective purchaser of real estate or of an interest in real estate is chargeable with knowledge of what appears in the grantor-grantee index, the legal record required to be maintaind by the Recorder (Ill. Rev. Stat. 1969, ch. 115, par. 12); he is not chargeable with notice of that which appears in other records which may be kept as a convenience, such as a tract index. (Leeser v. Kibort, supra, page 262; 43 Chi.-Kent L. Rev. 309, 310. See also, Kratovil, Real Estate Law, 3 Ed, at page 94; Kerfoot v. Cronin (1882), 105 Ill. 609, 617, 618 and Booker v. Booker (1904), 208 Ill. 529, 540.) We cannot assume that the legislature intended that “mortgagee of record” has other than the meaning long ascribed to it, in the absence of any other language in the statute.

We conclude that Miles Homes Inc. was not entitled to notice of the tax deed proceedings. We, therefore, do not need to decide whether Miles had the requisite standing or interest to redeem since no redemption was effected. Cf. Weiner v. Jobst (1961), 22 Ill.2d 11; Franzen v. Donichy (1956), 9 Ill.2d 382; and In re County Treasurer of DuPage County (1965), 63 Ill.App.2d 135.

Miles Homes has also contended that the tax deed issued on November 3rd is a nullity because the court order authorizing it was not entered by the Circuit Court Clerk as provided in Ill. Rev. Stat. 1969, ch. 110A, par. 272, supra. However, that rule is for the purpose of removing any doubt as to the date a judgment is entered and relates to the finality of judgments. (See Committee Comments. Smith-Hurd Illinois Annotated Statutes, ch. 110, par. 272.) The statute does not change the previous substantive law holding that the failure to file an order with the Circuit Clerk does not affect the validity of the order. (People v. Petit (1915), 266 Ill. 628, 632; In re Estate of Young (1953), 414 Ill. 525, 533.) A tax deed is rendered void only by lack of jurisdiction, and not by some other impropriety in a tax deed proceeding. (See People v. O’Keefe (1960), 18 Ill.2d 386, 392; Dick v. Mitchell (1968), 103 Ill.App. 2d 93, 97.) The case of Murray v. Estate of Armstrong (1969), 114 Ill.App.2d 200, cited by Miles Homes, does not support a proposition that a tax deed issued by the County Clerk pursuant to the original valid judgment signed by the court becomes invalid because it was not issued pursuant to a certified copy of the original order which the Circuit Clerk has filed stamped.

Defendant Darrell Diehl, on April 7, 1970, filed a Section 72 petition to vacate the November 3rd order and tax deed. His petition restated the theories argued in the motion of Miles Homes and additionally alleged that his wife had paid the 1967 taxes and that he had assumed she had also paid the 1966 taxes, for he had at the time sufficient funds in the bank. The petition further alleged that his lack of diligence in defending was due to his distress over the breakup of his marriage and the divorce proceedings, so that he was unable to appreciate the significance of the notices that he received in the tax proceedings; and it also alleged that plaintiff and her attorney had made representations in the fall of 1969 that he had no right in the premises and would be merely wasting his time and money if he were to seek legal advice.

The argument based upon Diehl’s alleged confused mental state as being an excuse for his nonaction is not properly supported. The petition is not accompanied by the sworn affidavits required when assertions are offered to matters not in the record and does not state a cause of action. (See Brockmeyer v. Duncan (1960), 18 Ill.2d 502, 505 and People v. Garfield (1961), 33 Ill.App.2d 164, 170.) Even disregarding requirements of form, the allegation of Diehl’s distraught mental state does not constitute excusable neglect in having ignored the proceedings on his own initiative. (Johnson-Olson Floor Coverings v. Branthaver (1968), 94 Ill.App.2d 394, 399.) The case of Gary Acceptance Corp. v. Napilillo (1967), 86 Ill.App.2d 257 offered by Diehl as supporting his lack of due diligence in defending involved an unconscionable advantage obtained through the extraordinary use of court process to frustrate the purpose of the Bankruptcy Act and its defenses and has no application to the facts herein.

Diehl’s further claim that he was misled into not defending or fifing a motion to vacate within thirty days of the November 3rd order because of the alleged fraudulent misrepresentation of the plaintiff and her attorney made in the fall of 1969, must be summarily rejected because of Diehl’s own testimony. He admits that the statements that he alleges fraudulently misled him actually occurred in the middle of December 1969, subsequent to the thirty day period following the judgment. Furthermore, considering that Diehl’s meeting with plaintiff and her attorney occurred subsequent to the proceedings and that the admitted purpose of the meeting was to rent the premises to Diehl, there is no basis for finding that the statements made were fraudulent or even inaccurate.

In defendant’s reply brief, an argument is made which suggests that injustice has been done which this court can and should correct. The argument is supported with editorial matters dehors the record decrying speculative abuses which result in forfeitures of substantial equities in real estate for nonpayment of small amounts of taxes. We intend no approval or encouragement of such forfeitures. But, we are bound by the procedures which the legislature has seen fit to set forth to insure the reliability of tax collections, and we have no authority to substitute our general notions of fair play — even to avoid the unfortunate result that a tax buyer has here received an unusual return on a small investment at the expense of a careless owner and mortgagee.

We thus must affirm the judgments below.

Judgments affirmed.

MORAN, P. J., and ABRAHAMSON, J„ concur.

      It does appear, however, that Miles Homes acquired knowledge of the sale of the 1966 taxes through correspondence with the Ogle County Treasurer dated July 14, 1969. The Corporation apparently sent a check to the Treasurer for the amount thought necessary to redeem. This was received by the Treasurer after the expiration of the redemption period and was returned to Miles because additional interest was due by reason of the late tender of redemption. This additional interest, amounting to $10.74, was sent by Miles and received on November 6 and was returned by the Treasurer with the advice that the tax deed had been issued on November 3rd.


text:
    Gerald R. Weeks, et al., Plaintiffs-Appellees, v. Elmer J. Hoffman, et al., Defendants-Appellants.
    (No. 70-270;
    Second District
    September 7, 1971.

      Edward J. Vertovec, of Elmhurst, for appellants.
    John Demling, of Glen Ellyn, for appellees.
   Mr. JUSTICE SEIDENFELD

delivered the opinion of the court:

The county adopted an appropriation ordinance under which it proposed to use general funds for the purpose of constructing a sewage treatment plant, a trunk sewer line and certain drainage facilities, all serving a localized area in DuPage County. Plaintiffs, as taxpayers, sued to enjoin the approval and expenditure of the funds. The court ordered the writ to issue.

The defendants, as treasurer and auditor of DuPage County respectively, argue on appeal that general authority is given to the county to “manage the county funds and county business, except as otherwise specifically provided # * *” (Ill. Rev. Stat. 1969, ch. 34, par. 403); that DuPage County has adopted the provisions of the statute commonly referred to as the Public Works Act (Ill. Rev. Stat. 1969, ch. 34, par. 3101 et seq.) so that the proposed work is within proper corporate purposes; and is not barred by any specific restriction in the Public Works Act against financing the proposed construction from general funds of the county.

This syllogism has been presented very persuasively, but we are of the opinion that the contrary view of the legislative intention found by the trial court is a more reasonable one.

The powers sought to be exercised may not be reasonably implied from the provisions (ch. 34, par. 403, supra) giving counties the general power to manage county funds and county business. This section does not confer an absolute power of management of county funds when there is an absence of any specific provision to the contrary — it merely expresses the conferring of power to manage county funds and transact county business according to law. Locke v. Davison (1884), 111 Ill. 19, 25; Cook County v. McCrea (1879), 93 Ill. 236, 238, 239; Strodtman v. County of Menard (1894), 56 Ill.App. 120, 126.

It has not been contended that counties always had the power to establish departments of public works with authority to exercise supervision over sewer and water projects, such as are here involved, as a part of general corporate functions. This authority was first expressly conferred by the enactment of the Public Works Act in 1959. Ch. 34, par. 3101 et seq., supra.

The authority given is that expressed in the authorizing statute. (Ch. 34, par. 3101 et seq., supra.) Paragraph 3104 states the nature of the tax levy which the county may employ “to effectuate the purposes of this Act”, by specifying a .02% tax; paragraph 3117 provides for financing by issuing revenue bonds; and paragraph 3123 provides for financing by issuing general obligation bonds — but only after a referendum in each instance.

Each party has pointed out language in various provisions of the Public Works Act which by implication might be said to support his respective views as to legislative intention. For example, there is language in Par. 3102, as amended in 1965, which provides that “any county may advance general funds for necessary studies or engineering for a project to be financed by revenue bonds and be reimbursed by the proceeds of such bonds”; and in 1969 this section was further amended to provide for an additional method of establishing a department of public works (and including the above quoted language only in connection with the second plan. (See Ill. Rev. Stat. 1969, ch. 34, par. 3102R.) Plaintiffs note that prior to this amendment there was no reference in the entire Act to use of general funds; and that the limited authority given suggests that no prior authority existed; while defendants explain the amendment as required for reimbursement from proceeds of revenue bonds, otherwise entirely allocated to specified public works (and further suggest the amendment does not prohibit use of general funds). Also, the 1969 amendment to paragraph 501 (Ill. Rev. Stat. 1969, ch. 34, par. 501) provides for the levy of additional or “excess" taxes for purposes authorized under the Public Works Act after a special election. Defendants argue that if the legislature intended that the only monies which could be used for public works projects were from taxes levied pursuant to paragraph 3104, supra, this section would be meaningless, since paragraph 3104 already provides for a special election for the .02% rate to be charged. Plaintiffs point out contrary implications in paragraph 3117 from language which states in substance that no bonds “or other obligations” shall constitute an indebtedness of the county.

While we cannot determine that the statute has expressly forbidden the county from using general funds for the proposed work, we do conclude that there is no express authority in the Act for the construction of the proposed sewage system from general funds of the county, and that such authority may not be reasonably implied from the language use.

Where a statute sets forth the provisions necessary to effect a particular purpose, these provisions must be followed. See Locke v. Davison, 111 Ill. 19, supra, at page 24; Cook County v. McCrea, 93 Ill. 236, supra, at page 238. It is also a cardinal rule of statutory construction that the expression of a mode of action in a statute excludes other methods though not expressly prohibited; and that the enumeration of certain things in the statute implies the exclusion of all other things. In re Estate of Tilliski (1945), 390 Ill. 273, 283; Blakeslee’s Warehouses v. City of Chicago (1938), 369 Ill. 480, 483.

We, therefore, affirm the judgment below which enjoined the defendants from approving and expending general funds of DuPage County for the construction of sewage treatment plants and sewer lines as proposed.

Judgment affirmed.

MORAN, P. J., and SEARS, J., concur.

         Plaintiff has argued that ch. 34, par. 406, complements par. 403, supra, and gives a county broad authority to levy taxes for the general fund for all purposes for which money may be raised by the county; and has suggested that there is no statutory or constitutional reason why general tax funds cannot be spent on local projects, “especially where the public health of the county reasonably can be affected”. Defendant has pointed out, and we agree, that there is no issue before the court relating to the public health of the county; but that the issue is whether the essentially local improvement may be constructed under general corporate powers and using general corporate funds, or whether this authority must rather be found within the terms of the Public Works Act.


author: Mr. JUSTICE GUILD

text:
    Jennifer Shoop, Admistrator of the Estate of Larry W. Schoop, Plaintiff-Appellant, v. Commonwealth Edison Company, Defendant-Appellee.
    (No. 70-255;
    Second District
    August 17, 1971.
    Morgan, Brittain, Ketcham & Dondanville, of Elgin, for appellant.
    O’Brien, Burnell, Puckett & Barnette, of Aurora, for appellee.
   Mr. JUSTICE GUILD

delivered the opinion of the court:

Jennifer Shoop, the duly appointed administrator of the estate of Larry W. Shoop, deceased, on the 14th of May, 1970, filed suit against Commonwealth Edison Company, an Illinois Corporation, for the death of her husband. The Commonwealth Edison Company thereupon filed a motion to dismiss alleging (1) that the complaint failed to state any facts which would constitute negligence on the part of the defendant, and (2) that the facts alleged in the complaint affirmatively show that Larry W. Shoop, the decedent, was guilty of contributory negligence which proximately caused his death. The trial court on the basis of this motion dismissed the complaint. This appeal followed.

The complaint alleges that on the 7th of September, 1969, the decedent, Larry W. Shoop, was on the roof of his residence in Kane County, Illinois, removing a television antenna. It is further alleged he was in the exercise of due care and caution for his own safety; that he was electrocuted when the television antenna which he was holding came in contact with the wires of the Commonwealth Edison Company. It appears that the Commonwealth Edison Company maintains high voltage electric wires along Elgin road in Kane County, Illinois. Plaintiff further alleges that the Commonwealth Edison Company failed to exercise due care and caution in the installation, maintenance, care and control of said wires and that they were guilty of negligence in so maintaining the wires.

The trial court found upon the pleadings, as a matter of law, that the defendant was not negligent and the plaintiff was contributorily negligent.

The defendant has cited two cases which it contends are controlling. The first is Merlo v. Public Service Co. (1942), 381 Ill. 300. In that case the defendant Public Service Company of Northern Illinois maintained an electric distribution line in the parkway between the sidewalk and the street. The plaintiff therein was killed when a drag line machine came in contact with the wires and he was electrocuted. The court submitted the case to the jury and reserved ruling on the motion for a directed verdict of not guilty. The jury found both the drag line' company and the Public Service Company guilty and assessed damages against both. The court thereupon entered judgment on the verdict against the defendant drag line company but set aside the verdict as to defendant, Public Service Company. Upon appeal, the Appellate Comt reversed the judgment non obstante veredicto against the Public Service Company. In a lengthy discussion of the transmission of electricity, the Supreme Court reversed the Appellate court’s decision as to the defendant Public Service Company and sustained the judgment of the trial court in favor of the defendant Public Service Company. But the court went on to say:

“In our opinion there was sufficient evidence in the record tending to prove the negligence charged against said defendant to warrant the submission of the case to the jury, if it was further established by the evidence that such negligence was the proximate cause of the injury. Manifestly and undoubtedly, neither the lack of insulation nor the sagging wires did anything more than furnish a condition, and the intervening, independent act of the crane operator was the efficient and proximate cause of the fatal injuries to decedents.” (Emphasis supplied.)

The second case cited by defendant Austin v. Public Service Co. of Northern Illinois (1921), 299 Ill. 112, was likewise a death case where a fourteenth year old boy was electrocuted while walking on a beam on a bridge. The court directed a verdict for defendant at the conclusion of the plaintiff’s case saying the “defendant had no business on top of this bridge and no person exercising due care would have been there.” The court however, did further state:

“The general rule is that negligence and contributory negligence are questions of fact for the jury, but when the facts are admitted and all reasonable minds agree that the defendant was not negligent in its acts or that the injury was the result of plaintiff’s own negligence, the court may, as a matter of law, find that there was no negligence on the part of defendant or that there was no negligence on the part of defendant or that there was such contributory negligence on the part of plaintiff as to defeat a recovery, and so inform the jury by a preemptory instruction. (Citations.) But so long as the question remains whether either party has performed his legal duty or has observed that degree of care and caution imposed upon him by law, and the determination of the question involves the weighing and consideration of evidence, the question must be submitted as one of fact. (Citation.) It is for the court to say whether there is sufficient evidence before it to present an issue of fact under the pleadings, and if there is not, it is the duty of the court to direct what verdict shall be returned. (Citation.)”

Both of these cases were submitted to the jury for a hearing on the facts before the court determined, as a matter of law, that the defendant was not guilty of negligence and that the plaintiff was guilty of contributory negligence.

Counsel have likewise cited Withey v. Illinois Power Company (1961), 32 Ill.App.2d 163, 177 N.E.2d 254 which is factually quite similar to the instant case, in that the plaintiff there feU from his roof when the antenna he was working on, came in contact with the electric wires of the Illinois Power Company. The jury found against the Illinois Power Company and the owner of the trailer court where plaintiff’s trailer was parked. The Appellate Court reversed the judgment against the Power Company stating:

“In view of the record in this case we are forced to the conclusion that plaintiff failed to prove that he was in the exercise of ordinary care for his own safety prior to and at the time of the injury in question and that his injury was proximately caused by the alleged negligence of the defendants. Such conclusion is so plain and clear that all reasonable men must arrive thereat from a dispassionate consideration of the evidence in this case. The evidence not only failed to show the exercise of ordinary care on the part of the plaintiff prior to and at the time of the injury in question, but on the contrary, showed a complete want of care.”

The Supreme Court in the oft-cited case of Pedrick v. Peoria and Eastern Railroad Company (1967), 37 Ill.2d 494, 229 N.E.2d 504, adopted and set forth a clarified and concise statement of the law as it applies to directed verdicts and judgments non obstante veredicto.

"In our judgments verdicts ought to be directed and judgments n.o.v. entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.”

It can thus been seen that the line of distinction as to whether or not contributory negligence or negligence on the part of the plaintiff, is a question of fact or law depends upon the facts in each particular case. In the instant case the trial court held that the complaint did not state a cause of action and that plaintiff’s decedent was guilty of negligence that proximately contributed to his death. The complaint states the Plaintiff’s decedent was in exercise of ordinary care for his own safety, and that the defendant, in the maintaining of its power lines, was negligent. This court is unable to see how that determination can be made without a hearing as to what factually occurred. It may well be that plaintiff will not be able to prevail when the facts are disclosed, but she certainly should have the opportunity to present those facts for a determination.

Reversed and remanded.

ABRAHAMSON and DIXON, JJ„ concur.


author: Mr. JUSTICE NASH

text:
    Alice McDonald, Plaintiff-Appellee, v. Frontier Lanes, Inc., et al., Defendants-Appellants.
    (No. 70-91;
    Second District
    July 30, 1971.

      Carbary, Carbary & Chapski, of Elgin, and Alschuler, Putnam, McWethy, Weiss & Weiler, of Aurora, for appellant.
    Horwitz, Anesi, Ozman & Associates, of Chicago, Smith & McCracken, of Geneva, and Dario A. Garibaldi, of Flossmoor, for appellees.
   Mr. JUSTICE NASH

delivered the opinion of the court:

Defendants, Frontier Lanes, Inc. and Northern Illinois Gas Company, appeal from judgments entered against them upon jury verdicts in favor of plaintiff, Ahce McDonald. Plaintiff brings a separate appeal from the judgment entered upon the verdict in favor of defendant, Tony Ceresa.

Plaintiff was injured when she stepped into a hole in a parkway owned by the City of Elgin located across a public sidewalk from the parking lot maintained by Frontier for its tavern and bowhng patrons. (The city was a defendant at trial and after verdict against it the court entered judgment n.o.v. from which no appeal has been taken.)

Frontier and Northern Illinois both urge on appeal that the trial court should have directed verdicts in then" favor or entered judgments n.o.v. and, in the alternative, new trials should be granted because the verdicts are against the manifest weight of the evidence. In addition, Frontier alleges error in the rulings of the trial court on two instructions and in not allowing it to file a counterclaim against Northern Illinois during trial. Plaintiff in her separate appeal contends defendant, Ceresa, is personally hable for her damages by reason of this status as a corporate officer of Frontier and as owner of the land it occupied.

There is little conflict in the evidence. In early 1965, Ceresa subdivided land owned by him in the City of Elgin improving it with a paved street named Ceresa Drive, running in north-south directions, and with a sidewalk along the east side of the street. Between the sidewalk and curb was a six-foot wide parkway which he graded, seeded and planted with small trees and which, together with the street and sidewalk improvements, was dedicated to and accepted by the city at that time. In late 1965, Ceresa commenced construction of a tavern and bowling alley building on a SVz acre tract of vacant land owned by him on the east side of Ceresa Drive. He did some of the work himself and let portions to plumbling, heating, paving and other contractors who also worked on the premises.

On January 21, 1966, Ceresa requested Northern Illinois to provide gas service for heating the building and it sent to the premises a four man crew to install a gas line from its main in the parkway to the building. The ground was frozen and covered with snow. The building was still under construction with various kinds of building material piled between it and the sidewalk west of the building. The gas crew noticed several mounds of dirt piled at intervals along the parkway between the sidewalk and the street. The Northern Illinois crew dug a trench across the parkway, under the sidewalk and sixty feet across the future parking lot to the building, on a line a few feet south of the front door of the building, and installed the gas pipe. Three members of the crew returned January 24th, completed the pipe connections, and filled in the trench with frozen earth. Northern Illinois made no charges to Ceresa for its work. Ceresa observed the work and testified that after filling the trench there remained a three-inch depression in the parkway while Northern Illinois employees testified they mounded the earth one to two feet above the sidewalk level over the hole dug in the parkway. The gas crew leader also testified that from nine to eighteen inches of settling could be expected in a trench of that size. The testimony is that neither Ceresa, Frontier or Northern Illinois did any further work or maintenance in the parkway until after plaintiffs injury, when Northern Illinois returned to fill in the settled ground at that place.

After installation of the gas line, Ceresa continued his work on the building, including the blacktopping of the area from the sidewalk to the building for a parking lot, until August, 1966, when construction was completed. At that time Ceresa formed defendant, Frontier Lanes, Inc. of which he became president and sole shareholder and, as owner, he leased the premises to the corporation which then, as tenant, opened the tavern and bowling lanes for business. Ceresa served as manager of the business and was doing so at the time of plaintiff s injury.

Before August, 1967, patrons of the business parked their cars both on the parking lot and on Ceresa Drive. There were no bumpers or fencing between the parking lot and sidewalk to prevent cars from being driven between the street and parking lot over the parkway and Ceresa observed them doing so without using the driveway towards the south end of the premises. Customers of the business also commonly parked in the street and walked to and from the front door on the west side of the building across the parking lot, sidewalk and parkway at various places, there being no designated walk area between the door and sidewalk or street. There were floodlights 140 feet apart on the roof of the single floor building and some lights at the door. There was no other illumination of the parking lot or at the street.

On August 26, 1967, plaintiff came to the premises near midnight and after driving through the parking lot and finding it full, parked her car on Ceresa Drive south of the building and walked in across the parking lot. She looked for an acquaintance in the tavern, had one or two drinks, then left shortly before closing time by the west front door she had entered. There were cars parked in the lot both beside the building and along the street side and cars were being driven through the parking lot. Other persons were also leaving the premises walking across the parking lot towards the sidewalk and street.

Plaintiff walked westerly from the door across the lot veering south as she approached the sidewalk in order to pass between cars parked on the lot and sidewalk. On crossing the sidewalk between the parked cars she stepped onto the parkway into a hole twelve inches deep and some two feet wide extending from the sidewalk to the curb across the parkway. It was dark and the hole was obscured by grass and weeds. As she fell she grasped the fender of the car parked next to her and the injury occurred. The hole was at the place the gas pipe had been installed in the parkway. Ceresa testified he had known of a defect at that place for some time but not its extent.

We consider first Frontier’s contention that it was error for the trial court to deny its motion for directed verdict and judgment n.o.v. because all the evidence, viewed in its aspect most favorable to plaintiff, so overwhelmingly favored this defendant that no contrary verdict based on that evidence could stand. (Pedrick v. Peoria & Eastern R. Co., 37 Ill.2d 494, 229 N.E.2d 504.) In essence, Frontier urges that it owed no duty to protect plaintiff from injury at a place not within the boundaries of its premises.

Frontier submits no authority contesting plaintiff’s status as an invitee stating it assumes that status for purposes of argument. Under the evidence we believe this to be a correct assumption. (Starnes v. Postawko, 347 Ill.App. 77, 106 N.E.2d 145.) Frontier also recognizes a duty to provide reasonably safe means of ingress and egress to its invitees, but would limit its application to premises owned or controlled by it.

As stated in Altepeter v. Virgil State Bank, 345 Ill.App. 585, 104 N.E.2d 334, at page 598:

“The rule is that an occupant or owner of premises owes to an invitee a duty to use ordinary care to have the premises in a reasonably safe condition for use in a manner consistent with the purpose of the invitation, not to lead such person into a dangerous trap and to give such person adequate and timely notice and warning of latent or concealed perils which are known to the owner but not to the invitee.”

Included within the rule is a similar duty to provide an invitee with reasonably safe means of ingress and egress, both within the confines of the premises owned or controlled by the inviter (Geraghty v. Burr Oak Lanes, Inc., 5 Ill.2d 153, 125 N.E.2d 47; Jones v. Granite City Steel Co., 104 Ill.App.2d 379, 383, 244 N.E.2d 427) and, within limitations dictated by the facts of the case, beyond the precise boundaries of such premises. (Cooley v. Makse, 46 Ill.App.2d 25, 196 N.E.2d 396; Stedman v. Spiros, 23 Ill.App.2d 59, 161 N.E.2d 590; Thomas v. Douglas, 1 Ill.App.2d 261, 117 N.E.2d 417; Steinberg v. Northern Illinois Tel. Co., 260 Ill.App. 538; Mauzy v. Kinzel, 19 Ill.App. 571.

In Cooley, plaintiff was injured in a faff on a defective, city-owned sidewalk at a place two or three feet from defendants’ tavern building. The sidewalk was the only means of ingress and egress to the building and, while defendants did not cause the defect, they had knowledge of it. The court described the rule in this language at page 30:

“We think the duty of the defendants to use due care not to negligently injure invitees upon their premises carries with it a corollary duty to get such invitees safely on or off their premises. It is abundantly clear from the pictures that injuries to invitees might reasonably have been anticipated from the condition of this walk, particularly after dark. The defendants, whether lawfuUy or not, had assumed the right to use, enjoy and employ the sidewalk as a necessary adjunct of their possession, control and ownership of the tavern building. The exercise of that right necessarily incubates the duty to see that it may be safely exercised by their invitees * # 6 the duty of the defendants in this case to their invitees extends beyond naked and precise property lines. Having prescribed the route to their invitees for ingress and egress to and from their building, it was their duty to properly illuminate, give adequate warning of, or cause to be repaired a known, dangerous condition.”

In Stedman, circumstances were considered wherein the duty of care owed to an invitee might extend beyond the premises over which the inviter had lawful possession. There defendant was lessee of a lodge in state park outside of which was a patio from which a sidewalk extended. Plaintiff was some 15 feet from the sidewalk and 50 feet from the lodge when injured as the ground gave way near a precipice where he was standing at a place not controlled by defendant under his lease. In denying liability on these facts, the court stated, arguendo:

“Clearly, if the brink of the precipice were a step or two from the defendant’s door, or from the stone patio to which defendant’s door opened, we would have a different case than is now presented to us.”

We must also consider, under the facts in this case, the well-settled principle that an owner or occupier of property abutting a public sidewalk also has a duty of reasonable care to those using the sidewalk who are not their invitees where such owner or occupier has assumed the use of the sidewalk for his own purposes. (Donovan v. Raschke, 106 Ill.App.2d 366, 369, 246 N.E.2d 110; King v. Swanson, 216 Ill.App. 294; Illinois Pattern Instructions, No. 135.01.) We find no error in the trial court’s denial of the motions for directed verdict or for judgment n.o.v.

Frontier next contends the verdict is against the manifest weight of the evidence thus requiring a new trial. The principles to be applied here, in absence of prejudicial trial error, are set forth in Cochran v. Parker, 91 Ill.App.2d 56, 60, 233 N.E.2d 443:

“A court of review can set aside a verdict as being against the manifest weight of the evidence only when it is obvious or clearly evident that the jurors have arrived at an incorrect result. [Citations.] It is for the jury alone to determine the creditability of witnesses and the weight of the evidence on controverted questions of fact. A verdict based upon conflicting evidence and approved by the trial judge should not be disturbed on appeal unless contraiy to the manifest weight of the evidence; that is, an opposite conclusion must be clearly evident (citations.) Manifest means clearly evident, clear, plain, indisputable. [Citations.]”

There is uncontroverted evidence in this case of the assumption of use of the sidewalk and parkway by Frontier for ingress and egress of its walking and driving patrons. There is further evidence whereby the jury could reasonably find this defendant had assumed the use and control of the public sidewalk in front of the building for its customer parking, blocking it for normal use by plaintiff and other patrons. The apparent oil stains on the sidewalk shown in photographs in evidence suggest the regular use of the sidewalk for parking purposes. It is clear there was a twelve-inch deep, obscured hole in the parkway adjacent to the sidewalk opposite defendant’s door, the existence of which, if not the dimensions, was known to defendant. No issue has been raised on appeal as to the exercise of due care by plaintiff for her own safety and the evidence is she was leaving Frontier’s premises by a route held out to its invitees for their use; there was no alternate route available except to share the driveway to the south with the cars of other departing tavern customers.

We believe the duty which this defendant owed to plaintiff was to exercise the care of a prudent man to provide reasonably safe means of egress from its premises and to give its invitee adequate warning of those dangers known to defendant which were not apparent. Whether the risks imposed upon plaintiff in exercising the only means of egress made available by Frontier, including therein the consideration of its use of the sidewalk for parking, were unreasonable risks under these circumstances, and whether defendant breached its duty to plaintiff, were factual determinations for the jury. Garrett v. National Tea Co., 12 Ill.2d 567, 573, 147 N.E.2d 367; Beccue v. Rockford Park District, 94 Ill.App.2d 179, 236 N.E.2d 105.

We find that an opposite conclusion to that of the jury is not clearly evident and, therefore, its verdict is not against the manifest weight of this evidence.

Frontier also contends there should be a new trial for error in giving plaintiff’s instruction No. 23, which states:

“The owner of property abutting a public sidewalk and parkway is under a duty to exercise ordinary care not to create an unsafe condition which would interfere with the customary and regular use of the walk and parkway.”

This is I.P.I. 135.01 modified by the addition of the words “and parkway.” Defendant suggests there was no evidence of a defect in the sidewalk to support the principle set out in the instruction and that there is no duty imposed on an abutting owner for defects in a parkway. Defendant overlooks the evidence of the use of the sidewalk and parkway by it as an adjunct of its parking lot and as the means of egress from its premises by its patrons. For the reasons heretofore stated we believe the instruction was properly given in this case.

Frontier next urges error in the refusal of the trial court to give its tendered instruction No. 2, which would require the jury to find this defendant not guilty if Frontier did not own, occupy, maintain or control the parkway and had not affirmatively created the defect causing plaintiff’s injury. The instruction is pre-emptory, argumentative in form and is not in I.P.I. It does not correctly state the law under the facts of this case, thus could not correctly state defendant’s theory of defense. It was properly refused by the court.

Frontiers final contention is that the trial court erred in denying it leave to file a counterclaim against defendant, Northern Illinois, after the close of plaintiff’s case. Frontier here sought to insert in the case the issues of active-passive negligence as between it and Northern Illinois. The denial or admission of additional pleadings during trial lies within the sound discretion of the court and we find no abuse of such discretion in this instance.

We turn then to the issues as they relate to defendant, Northern Illinois, which contends that, as a matter of law, it cannot be held responsible for negligence in creating any dangerous condition remaining in the parkway after it completed its pipe installation work and that any such negligence cannot be the proximate cause of plaintiff’s injury.

While it agrees it owed a duty of care to plaintiff as would any other contractor doing excavation work, Northern Illinois states it comes within the rule that where the work of an independent contractor is completed, turned over to and accepted by the owner, the contractor is not liable to third persons for damages subsequently resulting from defects in the work, citing Watts v. Bacon & Van Buskirk Glass Co., 20 Ill.App.2d 164, 155 N.E.2d 333 (affirmed in 18 Ill.2d 226), and Healey v. Heidel, 210 Ill.App. 387.

In Watts, defendant glass company was a contractor employed by the owner of a building to furnish and install a glass door therein. After completion of the work and acceptance by the owner, the glass shattered injuring plaintiff who then charged defendant with negligence in the use of the glass supplied and its installation. The Appellate Court held the general rule applied and, the glass not being inherently dangerous, it was not excepted from the rule. The Supreme Court affirmed that result without mention of the rule relied upon, holding there was no evidence of defendant’s negligence in either furnishing or installing the glass.

In Healy, defendant contractor completed and turned over to the owner a building constructed on the owner’s land after which a death occurred when a window fell out. The court held that the acceptance of the building by the owner raised a presumption of his satisfaction with the work and he thereby assumed the duty to take care it was free from defects known to him or which he might discover in the exercise of reasonable care. Thus, the owner’s negligence in failing to meet that duty intervened as the proximate cause of the death, removing any causal connection between the death and the fault of the contractor. It also held that the defect in the window was not inherently dangerous and not within an exception to the rule.

In further support of its position, Northern Illinois cites Sumner v. Lambert, 96 Ohio App. 53, 121 N.E.2d 189; Walker v. McNichol Paving & Construction Company, 325 Pa. 267, 189 A. 673, and Romano v. Rossano Construction Company, 341 Mass. 718, 171 N.E.2d 853. In each of these cases construction contracts were completed by the defendant contractor, turned over to the owner or contractee and thereafter injuries to plaintiffs occurred. Although there are some distinguishing features in the facts, these courts generally followed the rule relied upon by defendant here. We note that in each case from this and the other jurisdictions cited by Northern Illinois, the contractor did his work upon premises either owned or controlled by his contractee.

The court in Paul Harris Furniture Co. v. Morse, 10 Ill.2d 28, 40, 139 N.E.2d 275, also described and considered the rule:

“The general rule is that where an independent contractor is employed to construct or install any given work or instrumentality, and has done the same and it has been accepted by the employer and the contractor discharged, he is no longer liable to third persons for injuries received as the result of defective construction or installation. [Empire Laundry Machinery Co. vs. Brady, 164 Ill. 58.] The rule, however, is subject to certain well recognized exceptions * * *.”

In Harris, the defendant-contractor was employed to excavate a hole in which a storage tank for liquid propane gas was to be installed. At trial defendant was found to be negligent in his excavation work and on appeal made the same argument as does Northern Illinois here. The court held the storage of propane gas was imminently dangerous and although defendant did only the excavation work he, like others participating in the installation of the tank, may be held liable for damages resulting from any negligence in the performance of his work, even after completion and acceptance.

In Rodgers v. Meyers & Smith, Inc., 57 Ill.App.2d 200, 206 N.E.2d 845, defendant sub-contractor was hired by the general contractor to reset a sewer cover in a school yard. Defendant did so and turned the work over to his contractee, the general contractor, but had failed to adequately inspect his work to determine the stability of the cover. The work was also accepted by the school. In holding both the defendant and the general contractor responsible for negligence in the work and denying release from liability under the rule, the court stated:

“This rule should not be applied here, because every person owes to all others a duty to exercise ordinary care to guard against injury which may naturally flow as a reasonably probable and foreseeable consequence of his act, and the law is presumed to furnish a remedy for the redress of every wrong. The duty to exercise ordinary care to avoid injury to another does not depend upon contract, privity of interest, or the proximity of relationship, but extends to remote and unknown persons. Kahn vs. James Burton Co. 5 Ill.2d 614, 622, 126 N.E.2d 836.”

While the principle relied upon by Northern Illinois may have vitality under some circumstances, we find it is not applicable to the facts shown by the evidence in this case.

Here defendant, Ceresa, called upon Northern Illinois to provide gas service for heating his building and it did so by installing its gas pipe in the trench it dug across Ceresa’ land, under the city-owned sidewalk and across the city-owned parkway, connecting the pipe to Northern Illinois’ gas main under the parkway near the street. It is noteworthy that Northern Illinois made no charge to Ceresa for its work, providing at its own expense the labor and materials necessary to bring its gas product to the building. After installing its pipe, this defendant refilled the trench with frozen earth and left both Ceresa’ and the city’s premises, returning only after plaintiff’s injuiy to further fill the trench in the parkway.

Northern Illinois asserts that its contract with Ceresa is not shown by the evidence so that there is no proof as to the extent of the work .it was employed to do by Ceresa. It suggests that if such contract were in evidence it might show that Ceresa had agreed to provide for the finishing of the trench in the parkway by filling as may be necessary to keep it in a safe condition and, therefore, establish his acceptance of the work and assumption of responsibility under the general rule as an intervening and sole, proximate cause of plaintiff’s injury. If such a document exists, it was, surprisingly, not produced in trial and we cannot now speculate as to either its existence or its terms. The evidence of the transaction between these defendants clearly shows there was only a request for gas service by Ceresa and the installation of the gas pipe to provide that service as described herein. The excavation work done in the city-owned parkway obviously was undertaken by Northern Illinois in order to service its customer, Ceresa, with its gas product.

No case has been shown nor has our research disclosed any wherein the general rule mentioned could have application to these facts. North-em Illinois was not employed by Ceresa as an independent contractor within the sense of the rule and there could then be no acceptance of its work and substitution of Ceresa as the party solely responsible for negligence of Northern Illinois in its work outside of Ceresa’s premises in the parkway, street or any other place along the gas fine which might have been worked upon by Northern Illinois in its efforts to bring gas service to the building. Edwards v. North Shore Gas Co., 289 Ill.App. 32, 6 N.E.2d 489.

We find the trial court correctly denied Northern Illinois’ motions for directed verdict and judgment n.o.v.

Having established that Northern Illinois was not relieved of liability as a matter of law by reason of a status as an independent contractor, we further find the evidence to be sufficient to support the jury’s conclusion Northern Illinois was guilty of negligence proximately contributing to cause plaintiff’s injury.

The work on the parkway was carried out by an experienced excavation crew whose foreman anticipated the trench could settle as much as eighteen inches. No effort was made to compact the earth in the excavation, to return to inspect it or to fill it when the expected settling should occur although Northern Illinois usually did so after excavating on public property. (Peoria, B & C Traction Co. v. O’Connor, 149 Ill.App. 598, 601.) When plaintiff stepped into it the trench had subsided some twelve inches and was obscured by grass and weeds. We have considered the evidence that cars were sometimes driven over the parkway after Northern Illinois left its work but believe, as did the jury, that such activity could not have brought about the condition of the trench as shown in the photographs in evidence. In addition, the proximity of the trench to the public sidewalk in front of a place of business where substantial pedestrian traffic could be expected should have led Northern Illinois to foresee that some harm would result from the condition in which it left its excavation and its failure to do anything to prevent or correct its deterioration. (Aurora Gas Light Co. v. Bishop, 81 Ill.App. 493; Siegler v. Counties Contracting & Construction Co., 203 Pa. Super, 568, 202 Atl.2d 127.) On this evidence the jury could reasonably conclude this defendant was negligent and that its negligence was a proximate cause of plaintiff’s injury.

We consider next plaintiff’s separate appeal against defendant, Tony Ceresa, where it is contended this defendant is personally hable for the negligence attributed to defendant, Frontier, by reason of his status both as owner-lessor of the Frontier premises and as a corporate officer of Frontier.

Plaintiff contends the facts in the case require application of the rule that where an owner-lessor has actual or constructive notice of a defect in leased property, existing at the time of the lease, his liability for injuries caused by the defect extends to third persons. (Wagner v. Kepler, 411 Ill. 368, 104 N.E.2d 231; Cooley v. Makse, supra.) In this case there well may have been a defect in the parkway at the time Ceresa executed the lease to Frontier, but that land was not a part of the leased premises, and the acts and omissions of Frontier, as described earlier, in its use of the leased premises, sidewalk and parkway had not then yet occurred. The evidence will not support a finding that Ceresa, by virtue of his status as owner-lessor, is liable as a matter of law for plaintiff’s injury.

As to Ceresa’s corporate capacity, the rule is that an officer of a corporation is insulated from personal liability for negligence of the corporation unless he participated in the wrongful act or had such knowledge thereof as to give rise to liability. Lowell Hoit & Co. v. Detig, 320 Ill.App. 179, 183, 50 N.E.2d 602; Miller v. Simon, 100 Ill.App.2d 6, 241 N.E.2d 697; Peck v. Cooper, 112 Ill. 192.

In this case Ceresa was the president, sole shareholder and manager of Frontier. He owned and operated the business and its corporate acts or omissions could only be those participated in by him. The acts and omission of Frontier giving rise to the negligence charged in this case were not isolated incidents brought about by conduct of an employee, for example, but were a part of the general mode of operation of the corporate business under Ceresa’ sole power of direction and control. We find, as a matter of law, that defendant Ceresa is personally liable for the negligence of the corporate defendant, Frontier, in this case.

The judgment insofar as it relates to defendant, Tony Ceresa, will be set aside and this cause remanded to the trial court with directions to enter judgment n.o.v. in favor of plaintiff and against defendant, Tony Ceresa, in the sum of the verdict in this case. In all other respects the judgments are affirmed.

Reversed in part and affirmed in part, and remanded with directions.

MORAN, P. J., and ABRAHAMSON, J., concur.