author: JUSTICE McGILLICUDDY

text:
    SPACE STATION 2001, INC., Petitioner-Appellant, v. HERMAN H. MOSES, Indiv. and as Director of the Bureau of Licensing, Registration, and Permits, et al., Respondents-Appellees.
    First District (3rd Division)
    No. 83—412
    Opinion filed October 12, 1983.
    Marvin J. Rosenblum, of Chicago, for appellant.
    Stanley Garber, Corporation Counsel, of Chicago (Jerome A. Siegan and Lynn K. Mitchell, Assistant Corporation Counsel, of counsel), for appellees.
   JUSTICE McGILLICUDDY

delivered the opinion of the court:

The plaintiff, Space Station 2001, Inc. (Space Station), filed a petition for writ of mandamus to compel the defendants, Herman Moses, individually and as director of the Bureau of Licensing, Registration and Permits; the city of Chicago; the Department of Inspectional Services of the city of Chicago; and Jane M. Byrne, mayor of the city of Chicago, to reinstate electric and building permits and to issue a pub-lie place of amusement (PPA) license for its property located at 1124-1130 West Rosemont Street in the city of Chicago.

After a trial on the merits, the trial court denied the petition. Space Station appeals. The issues presented for review are (1) whether the trial court properly denied the petition for writ of mandamus based on an ordinance prohibiting the establishment of an arcade within 200 feet of a residential area; (2) whether the doctrine of equitable estoppel operates to prevent the city’s revocation of the building and electric permits; (3) whether the permit revocations were improperly based on section 43 — 10 of the Municipal Code of Chicago (Municipal Code); and (4) whether Space Station is entitled to damages.

In July 1982, Space Station leased two adjacent stores at 1124 and 1130 West Rosemont Street in Chicago. The north side of the premises is bounded by an alley, the south by Rosemont Street, and the east by a railroad abutment. A sidewalk abuts the west side of the premises and a 15-foot driveway separates the sidewalk from a parking lot. On September 14, 1982, Space Station filed an application for a PPA license, listing the address of the property as 1124 West Rosemont. Space Station intended to combine the two stores and install an arcade. Section 104.2 — 9 of the Municipal Code defines an arcade as a place of amusement that includes six or more automatic amusement devices.

In accordance with section 104.2 — 9.1 of the Municipal Code, James LaPrairie, a Chicago police department license investigator, measured the distance between the leased premises and the nearest residential zone. This section of the Municipal Code prohibits the operation of an arcade within 200 feet of a residential zoning district.

LaPrairie measured 148 feet between the doorway at 1124 West Rosemont and the nearest residential area, and 68 feet between the property line of the premises and the nearest residential area. At the request of Scott Kazan, the president of Space Station, LaPrairie measured 201 feet between the premises’ alley doorway and the nearest residential area. Kazan testified that he planned to move the building’s entrance to the alley doorway.

The zoning administrator signified his approval of the PPA license application by stamping the application on October 13, 1982. The stamp reads as follows:

“Conforms to Zoning Ordinance. This approval of application for license shall not be held to permit or be an approval of any violation of the provisions of the Chicago Zoning Ordinance.”

The following day, Space Station paid the $500 application fee.

The building plans, which listed the address of the premises as 1124 West Rosemont, gave no clear indication of the alleys bordering the property, or of Space Station’s intent to move its entrance to the alley door. The plans were approved by the Bureau of Fire Prevention and the Departments of Zoning, Inspectional Services, and Energy and Environmental Protection. Building and electric permits were issued on November 8 and 9, respectively. The workers began to put in 18- to 20-hour days, completing 75% of the remodeling between November 8 and 18, 1982. Kazan testified that the work schedule was so accelerated in order to open the arcade by the Thanksgiving holiday weekend. From the planning stage until November 18, 1982, Space Station spent approximately $25,000. In addition, it purchased 100 video game arcade machines for $300,000.

On November 18, 1982, a building inspector revoked the building and electric permits because of a violation of section 43 — 10 of the Municipal Code and ordered the men to stop working. The PPA application was disapproved on December 2, 1982, because the proposed arcade was within 200 feet of a residential zone and thus violated section 104.2 — 9.1 of the Municipal Code.

LaPrairie testified that in taking measurements to determine ordinance compliance for liquor stores, he measures from property line to property line. He has taken measurements for public places of amusement on 10 prior occasions; each time, he measured from doorway to property line. He had never measured from an alley door, except in the present case.

The parties stipulated that in the 10 prior applications for a PPA license for which he had taken measurements, LaPrairie had never taken more than one measurement at a site; that Kazan had asked LaPrairie to take the measurement from the proposed new doorway (alley door) to the property line; and that LaPrairie did not tell Kazan that the PPA license application had been approved. They further stipulated that on September 16, 1982, building inspector James McGreal saw that the inside of the building at 1124 West Rosemont was under construction without a permit and sent a warning notice to the last known owner, Sharp Enterprises.

Alderman David Orr testified that he visited the premises in September 1982, discovered ongoing construction work without a permit, and notified the police, who closed down the site. Alderman Orr entered the premises through the 1130 West Rosemont entrance, the only door open to the public.

The trial court denied the petition for writ of mandamus, and this appeal followed.

Space Station contends that the trial court’s denial of its petition for writ of mandamus was an abuse of discretion and contrary to the manifest weight of the evidence. Before a writ of mandamus will issue, the petitioner must show compliance with all valid requirements of any applicable ordinances. Solomon v. City of Evanston (1975), 29 Ill. App. 3d 782, 331 N.E.2d 380.

The applicable ordinance in the instant case is section 104.2 — 9.1 of the Municipal Code, which provides as follows:

“No person shall operate any arcade in any place within two hundred feet of any church, hospital, building operated exclusively as a grammar or secondary school, or residential zoning district, unless such place was licensed as an arcade before the establishment of the church, hospital, educational institution, or zoning district.” (Chicago Municipal Code sec. 104.2 — 9.1 (1982).)

Space Station maintains that because the alley door, which would be the arcade entrance, is more than 200 feet from the nearest residential area, the ordinance requirement has been satisfied. Space Station reasons that LaPrairie’s practice of measuring from public place of amusement entrance to residential zone has established a policy which should be directive here. The defendants contend that since the distance between the property lines of the proposed arcade and the nearest residential area is less than 200 feet, Space Station has violated the ordinance.

The words of a statute should be given their plain, ordinary or commonly accepted meaning, unless to do so would defeat the legislative intent. (Department of Public Works & Buildings v. Wishnevsky (1972), 51 Ill. 2d 550, 283 N.E.2d 872.) The plain and ordinary meaning of section 104.2 — 9.1 of the Municipal Code requires that the minimum distance between an arcade and a residential area be 200 feet. The language of the ordinance indicates that the legislative intent is to keep arcades at least 200 feet away from residential areas. To permit Space Station to circumvent the ordinance purpose by moving its entrance to the alley, while the major part of the arcade is located within 200 feet of a residential area, would not be consistent with the plain wording or the legislative intent of the ordinance. Moreover, there is no merit to the contention that the procedure used by one city employee has established an official city policy on the method of measurement.

In an analogous case, De Loian v. Illinois Liquor Control Com. (1969), 109 Ill. App. 2d 71, 248 N.E.2d 689, the statute in question prohibited the issuance of a license for the sale at retail of any alcoholic liquor “within 100 feet of any church ***.” (Ill. Rev. Stat. 1965, ch. 43, par. 127.) The appellate court interpreted the statute to mean that the measurement should be taken between the property lines, rather than between the buildings, of the licensee and the church. Similarly, according to our interpretation of section 104.2 — 9.1, its purpose would best be accomplished by measuring from the property line of the proposed arcade to the property line of the nearest residential area. As that distance is less than 200 feet, Space Station has failed to comply with the requirement of section 104.2 — 9.1. The trial court properly denied the petition for writ of mandamus.

Space Station next contends that the city should be estopped from revoking its permits because Space Station relied to its detriment on the issuance thereof. Space Station bases this argument on Cities Service Oil Co. v. City of Des Plaines (1961), 21 Ill. 2d 157, 171 N.E.2d 605, where the city issued a building permit and gave a copy of an obsolete zoning ordinance to the plaintiff. The plaintiff started construction of a gas station in a location which complied with the old ordinance but violated the current ordinance. Seven months after the issuance of the permit, the city revoked the permit. Our supreme court ruled that the city was estopped from this action because not only had it induced the plaintiff to believe he was in compliance with the law, but also it had let seven months pass before revoking the permit. Thus, a city can be estopped where the party’s action was induced by the conduct of a municipal officer, and the party would suffer substantial loss in the absence of relief. This is an exception to the general rule that a city cannot be estopped by the act of its agent beyond his authority. Cities Service Oil Co. v. City of Des Plaines (1961), 21 Ill. 2d 157, 161.

In the instant case, plaintiff started construction at least two months before the building and electric permits were issued. In addition, the permits were revoked within seven, working days of their issuance. Under these facts and circumstances, it is apparent that the conduct of city employees did not induce Space Station to start to construct and to install the arcade. Thus, the first part of the Cities Service exception does not apply to the instant case.

As to the second part of the Cities Service exception, Space Station has not demonstrated a substantial loss due to its reliance on the issuance of the permits. The trial court determined that Space Station spent $12,000 during the seven working days between issuance and revocation of the permits. Although Kazan testified that the work pace was expedited in order to open for the Thanksgiving holiday weekend, the trial court inferred that Space Station wanted the construction to be near completion before the city could determine whether the permits were validly issued. (See O’Laughlin v. City of Chicago (1976), 65 Ill. 2d 183, 357 N.E.2d 472.) We see no reason to overturn its decision in this matter. Thus Space Station’s estoppel argument fails under both parts of the Cities Service exception.

Space Station also cites Leisuretime Recreation Center VI, Inc. v. Byrne (1981), 93 Ill. App. 3d 489, 417 N.E.2d 658, in support of its estoppel argument. In that case, Leisuretime applied for a PPA license to operate an arcade more than one month before the city council passed section 104.2 — 9.1. Leisuretime’s property was located within 200 feet of a residential area. Nevertheless, subsequent to the effective date of the enactment of section 104.2 — 9.1, Leisuretime was issued a building permit, and the license application was approved by the city’s zoning, police, fire and building departments. Two months after the building permit was issued, and after Leisuretime had expended $21,300 in remodeling the premises, its license application was denied due to the violation of section 104.2 — 9.1. The appellate court affirmed the trial court’s order issuing a writ of mandamus to order the city to issue an arcade license, finding that because the acts of city officials had induced Leisuretime to change its position in reliance thereon, the city was estopped from denying the license. Leisuretime is inapposite to the instant case, as Space Station was aware of the ordinance requirement before it started construction of the arcade and, as discussed above, was not induced to act by the conduct of city officials and did not act in reliance on the permits.

A building permit cannot be granted in violation of the terms of a zoning ordinance; an unauthorized permit is a nullity and it confers no right on the permitee. (Ganley v. City of Chicago (1974), 18 Ill. App. 3d 248, 309 N.E.2d 653; 10 Ill. L. & Prac. Cities, Villages & Other Municipal Corporations sec. 1147 (1955).) Space Station gained no rights upon the issuance of the permits, and cannot rely on that issuance to estop the city from revoking them. After considering the facts and circumstances of the instant case, the trial court properly concluded that there was no basis for estopping the city from revoking the building and electric permits.

Space Station argues that the permit revocations were improperly based on section 43 — 10 of the Municipal Code. Section 43 — 10 makes unlawful any departure from approved plans involving a violation of the code on which the permits are issued. The evidence presented in the trial court showed that, because Space Station was within 200 feet of the nearest residential area, it violated section 104.2 — 9.1. Hence, there was a proper basis for the revocation of its permits and denial of its PPA license application. The fact that the permit revocations employed a technical misnomer should not affect the validity of the revocations.

Finally, Space Station urges us to reverse the trial court’s conclusion that Space Station is not entitled to damages. It is unnecessary to address the question of damages in light of our findings.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

RIZZI and WHITE, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE McNAMARA

license: Public Domain

text:
      In re MARRIAGE OF CONSTANCE LYNN PONSART, a/k/a Constance Lynn Popock, Petitioner-Appellant, and ANDRE GASTON PONSART, Respondent-Appellee.
    First District (3rd Division)
    No. 83—1479
    Opinion filed October 12, 1983.

      Doss, Puchalski, Keenan & Bargiel, Ltd., of Chicago (Paul J. Bargiel and Owen L. Doss, of counsel), for appellant.
    Griffith & Jacobson, of Chicago (Irvin J. Jacobson and James D. Jacobson, of counsel), for appellee.
   PRESIDING JUSTICE McNAMARA

delivered the opinion of the court:

We are asked to decide whether a petition for an increase in child support after a judgment for dissolution of marriage requires 30 day notice by registered mail pursuant to Supreme Court Rule 105 (87 Ill. 2d R. 105).

The parties were married in 1973 and were divorced in 1978. One child was born of the marriage. Pursuant to a marital settlement agreement, the wife was granted custody of the parties’ daughter and was awarded child support of $175 per month. The wife has since remarried and has one child from the second marriage.

On December 4, 1981, notice was mailed to the husband at his Colorado address, stating that on December 22, 1981, the wife would seek an increase in child support. Notice was not given to counsel who represented the husband at trial. The husband failed to appear and, on December 22, 1981, after hearing testimony from the wife, the court entered an order increasing child support to $400 per month.

Fifteen months later, the husband filed a petition to vacate the order increasing child support. The petition recited that the notice the husband received, sent by mail 18 days before the hearing, was insufficient. Relying on Cook County Circuit Court Rule 2.1(a), the husband maintained that a petition to increase child support was a request for additional relief and that therefore notice should have been sent in accordance with Supreme Court Rule 105. The petition further stated that the husband was out of the country at the time notice was sent. The petition also recited that the wife’s marital and employment status had changed since the entry of the judgment for dissolution, and that the wife was saving the support payments rather than using them for the child’s support.

The trial court found that a petition for increase in child support was a request for new or additional relief and required the giving of notice pursuant to Supreme Court Rule 105. The court determined that the failure to give such notice rendered the order of increase void. The wife appeals.

The wife contends that the notice requirement of Supreme Court Rule 105 is inapplicable here because a petition seeking to increase child support is not new or additional relief and that the husband is not a party in default.

The Illinois Marriage and Dissolution of Marriage Act provides for the modification of any judgment “by the filing of a petition with notice mailed to the respondent at his last known address, or by the issuance of summons to the respondent.” (Ill. Rev. Stat. 1981, ch. 40, par. 511(a).) The circuit court of Cook County Rule 2.1 provides in relevant part:

“(a) Notice required - Except in actions appearing on the daily trial call or during the course of trial, written notice of the hearing of all motions shall be given to all parties who have appeared and have not theretofore been found by the court to be in default for failure to plead, and to all parties whose time to appear has not expired on the date of notice. Notice that additional relief has been sought shall be given in accordance with Supreme Court Rule 105.
* * *
(d) Time of Notice - If notice of hearing is given by personal service the notice shall be delivered before 4:00 RM. of the second court day preceding the hearing on the motion. If notice is given by mail, the notice shall be deposited in a United States Post Office or Post Office Box on the fifth court day preceding the hearing of the motion.”

The wife here mailed notice in conformance with Circuit Court Rule 2.1(d).

Supreme Court Rule 105 provides in relevant part:

“Additional Relief Against Parties in Default - Notice
* * *
(b) Service. The notice may be served by any of the following methods:
* * *
(2) By prepaid certified or registered mail addressed to the party, restricted delivery, return receipt requested showing to whom, date and address of delivery. Service is not complete until the notice is received by the defendant, and the registry receipt is prima facie evidence thereof.” 87 Ill. 2d R. 105.

Without reaching the issue of whether a petition for an increase in child support is a request for new or additional relief under the Rule, we hold that the 30-day notice by registered mail provision required by Supreme Court Rule 105 is inapplicable to the present proceedings. Supreme Court Rule 105 was designed to protect a defaulting party insofar as the relief granted on default may not differ from that requested in the complaint. (Palatine Savings & Loan Association v. National Bank & Trust Co. (1980), 80 Ill. App. 3d 437, 399 N.E.2d 1015.) And since the husband in the present case was not in default at the time notice was sent, he was not entitled to the special notice provisions of Rule 105.

The issue of the type of notice necessary for supplemental proceedings has previously been addressed by Illinois courts. Relying on the holding in De La Cour v. De La Cour (1936), 363 Ill. 545, 2 N.E.2d 896, this court stated that adequate notice may be had pursuant to former Supreme Court Rule 7. (Mueller v. Mueller (1962), 36 Ill. App. 2d 305, 183 N.E.2d 887.) That rule has been adopted without substantive change as Supreme Court Rule 11 (87 Ill. 2d R. 11), and it allows service by regular mail, as was done in the present case. Similarly, in McClellan v. McClellan (1970), 125 Ill. App. 2d 477, 261 N.E.2d 216, this court noted that Supreme Court Rule 104, rather than 105, was applicable to questions of service in post judgment proceedings.

Circuit Court Rule 2.1(a) with its reference to “new or additional relief” is not applicable to this request for an increase in child support. The rule contains two parts: First it requires notice to parties not in default; it then provides for notice when additional relief is sought. We believe that this second part, with its reference to the notice provisions of Supreme Court Rule 105, applies only to parties in default.

Nor was it necessary to serve notice on the husband’s counsel of record in the original action. The attorney-client relation-

ship terminates after the judgment of divorce is entered. (Cummer v. Cummer (1935), 283 Ill. App. 220.) The notice required after judgment is to the parties and not to their attorneys. Siegel v. Siegel (1979), 80 Ill. App. 3d 583, 400 N.E.2d 6.

Having found that the wife provided adequate notice in conformance with Supreme Court Rules 104 and 11, we conclude that the order increasing the child support was a valid judgment. As such, it was subject to attack only upon the proper filing of a section 72 petition now codified as section 2 — 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1401). A party seeking relief from a final judgment after 30 days must demonstrate that he has a meritorious defense and that he has been diligent in asserting it. Diacou v. Palos State Bank (1976), 65 Ill. 2d 304, 357 N.E.2d 518; Czekaj v. Czekaj (1978), 66 Ill. App. 3d 484, 384 N.E.2d 63.

The husband here has failed to assert or demonstrate diligence. The order increasing child support was entered in December 1981. The petition to vacate the order recited that the husband was out of the country when notice of the motion was sent, but did not deny that he received the notice. The petition to vacate also failed to disclose when the husband did learn of the order of increase. The record discloses, however, that the latest he could have learned of the order was in September 1982 when adoption proceedings involving the parties’ child were instituted. Yet the husband did not file the petition to vacate for another six months. Since the husband failed to exercise due diligence, he is not entitled to relief.

For the reasons stated, the judgment of the circuit court of Cook County is reversed.

Judgment reversed.

RIZZI and WHITE, JJ., concur.


author: PRESIDING JUSTICE ROMITI

text:
    MARY FOUNTAS, Indiv. and as Adm’r of the Estate of Stavros Fountas, Deceased, Plaintiff-Appellant, v. DR. J. ERNEST BREED et al., Defendants-Appellees—(Dr. Philip Thorek et al., Defendants).
    First District (4th Division)
    No. 82—2243
    Opinion filed September 29, 1983.

      Mitgang, Levine and Schwartz, and Goldberg & Goldberg, both of Chicago (John B. Schwartz, Carl Nusbaum, and Michael J. Radtke, of counsel), for appellant.
    Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (Stanley J. Davidson and John G. Langhenry, Jr., of counsel), for appellees.
   PRESIDING JUSTICE ROMITI

delivered the opinion of the court:

Deceased, before his death, filed a malpractice action against several parties, including defendants-appellees, J. Ernest Breed and Breed Radium Institute. His wife was joined as a party plaintiff. Immediately after his death the malpractice complaint was voluntarily dismissed without prejudice. Later it was reinstated on defendants-appellees’ motion. Several months later it was dismissed with prejudice for failure to serve summons on defendants within a reasonable time. A few months thereafter the administrator filed the present action against the parties, including defendants Breed and Breed Radium Institute, seeking recovery under the Wrongful Death Act (Ill. Rev. Stat. 1981, ch. 70, pars. 1, 2), and for funeral and medical expenses. The trial court held the action for wrongful death and for medical and funeral expenses was barred by the previous judgment, dismissing the common law malpractice suit. We reverse as to the claim under the wrongful death action and for funeral expenses. We agree that the claim for medical expenses is barred under the doctrine of res judi cata.

In 1978, decedent Fountas filed a malpractice action against several defendants including Dr. Breed and the Breed Radium Institute (hereinafter referred to as defendants). The complaint was amended three times and decedent’s wife was added as a party plaintiff. Naturally her claim was at that time basically one for loss of consortium; however the complaint does not specifically so limit her claim. The last amended complaint alleged that defendants last treated decedent on May 31, 1978 (the first treatments by defendants were prior to May 1976). On July 9, 1979, the defendants filed a motion to dismiss pursuant to Supreme Court Rule 103(b) (73 Ill. 2d R. 103(b)). That rule provides that if the plaintiff fails to exercise reasonable diligence to obtain service, the case may be dismissed without prejudice if the failure was prior to the expiration of the statute of limitations or with prejudice, if the failure was after the expiration of the statute of limitations. Under Supreme Court Rule 273 (73 Ill. 2d R. 273), such dismissal operates as an adjudication on the merits. There is nothing in the record indicating that there was any hearing on the motion prior to March 26,1980.

On February 1, 1980, decedent died. On March 26, 1980, plaintiff’s motion for a voluntary nonsuit was granted. However, on May 19, 1980, the order granting the nonsuit was vacated on defendants’ motion. On October 3, 1980, eight months after decedent’s death, defendants’ motion to dismiss was granted with prejudice. Such dismissal is only proper if the failure to serve existed past the expiration of the statue of limitations. In the complaint decedent had alleged conduct occurring on May 31, 1978, only about one year prior to the filing of the motion to dismiss. Obviously if this date had been brought to the attention of the trial court in that case, any dismissal would not have been with prejudice. The trial court indicated in the record that it was with great reluctance that it was entering the order. At the hearing, plaintiffs’ counsel never argued the 1978 date. He stated the complaint alleged a course of treatment through August 23, 1977. The trial judge correctly found that there was no allegation that the treatment which began in May 1976 ended in 1977. Accordingly since the 1978 treatment was never argued, he was bound by the 1976 date and dismissed the case against appellees with prejudice. A Supreme Court Rule 304(a) finding making that dismissal enforceable and appealable was entered. However no appeal was taken.

On March 25, 1981, Mary Fountas as administrator (hereinafter called plaintiff) filed the present action. In it she alleged the same conduct and same dates mentioned in the first action. Defendants successfully moved to dismiss the action because (1) it was barred by res judicata; (2) the ability to bring a wrongful death action is based on the decedent’s ability to have brought suit had he survived and decedent could not have done so since his action was dismissed with prejudice.

I

Even though two lawsuits may involve the same parties or the same factual situation, the doctrine of res judicata is only applicable when the two lawsuits involve the same cause of action. (Baird & Warner, Inc. v. Addison Industrial Park, Inc. (1979), 70 Ill. App. 3d 59, 387 N.E.2d 831.) Two claims are not necessarily the same cause of action merely because they arose out of the same general transaction or set of facts. (Stephan v. Yellow Cab Co. (1975), 30 Ill. App. 3d 996, 333 N.E.2d 223; 23A Ill. L. & Prac. Judgments sec. 343 (1979).) The Wrongful Death Act created an independent cause of action (Ohnesorge v. Chicago City Ry. Co. (1913), 259 Ill. 424, 102 N.E. 819), which is a separate cause of action from a personal injury action (Vukovich v. Custer (1952), 347 Ill. App. 547, 107 N.E.2d 426, rev’d on other grounds (1953), 415 Ill. 290, 112 N.E.2d 712), and from a common law action for medical or funeral expenses. (Chidester v. Cagwin (1966), 76 Ill. App. 2d 477, 222 N.E.2d 274.) Furthermore after decedent’s death, the lawsuit became, in effect, one under the survival statute. (Ill. Rev. Stat. 1979, ch. IIOV2, par. 27 — 6.) Such action is recognized to be separate and distinct from an action for wrongful death. (Murphy v. Martin Oil Co. (1974), 56 Ill. 2d 423, 308 N.E.2d 583; Mitchell v. United Asbestos Corp. (1981), 100 Ill. App. 3d. 485, 426 N.E.2d 350.) As stated in Mitchell v. United Asbestos Corp. (1981), 100 Ill. App. 3d 485, 502-03, 426 N.E.2d 350, 362:

“Although action is to be brought under the Wrongful Death Act by and in the name of the personal representative of the deceased person, the legislative intent of the Act is that the claims brought are those of the individual beneficiaries. (Wilbon v. D. F. Bast Co.) By contrast, a claim under the survival statute is that of the deceased which arose during his life and survived his death. The statutes are not the same, and in Murphy v. Martin Oil Co. (1974), 56 Ill. 2d 423, 308 N.E.2d 583, our supreme court stated:
‘The statutes were conceptually separable and different. The one related to an action arising upon wrongful death; the other related to a right of action for personal injury arising during the life of the injured person.’ Murphy v. Martin Oil Co. (1974), 56 Ill. 2d 423, 431, 308 N.E.2d 583, 586-87.
Where a cause of action is brought both for wrongful death and for personal injury arising during the life of the deceased, both statutes must come into effect. As stated in Murphy:
‘[Wjhere there have been wrongful death and survival statutes the usual holding has been that actions may be concurrently maintained under those statutes. The usual method of dealing with the two causes of action *** is to allocate conscious pain and suffering, expenses and loss of earnings of the decedent up to the date of death to the survival statute, and to allocate the loss of benefits of the survivors to the action for wrongful death.’ Murphy v. Martin Oil Co. (1974), 56 Ill. 2d 423, 429, 308 N.E.2d 583, 586.”

Appellees contend that the doctrine of res judicata applies because plaintiff could have added a claim for wrongful death to the original lawsuit once decedent died. Such joinder would be permitted under section 44 of the Civil Practice Act. (Ill. Rev. Stat. 1981, ch. 110, par. 44; see Mitchell v. United Asbestos Corp. (1981), 100 Ill. App. 3d 485, 426 N.E.2d 350.) But the plaintiff was not required to do so. Where there are two separate causes of actions insured’s failure to join them in the first action does not bar the bringing of a later suit on the second cause of action. Chidester v. Cagwin (1966), 76 Ill. App. 2d 477, 222 N.E.2d 274.

The doctrine of collateral estoppel also does not bar recovery. Unlike the doctrine of res judicata, the doctrine of collateral estoppel is only applicable where the issue is actually and necessarily litigated and determined in the first action. (Baird & Warner, Inc. v. Addison Industrial Park, Inc. (1979), 70 Ill. App. 3d 59, 387 N.E.2d 831.) A Rule 273 adjudication on the merits has no greater weight than a general jury verdict and since a jury could have denied recovery merely on a finding of no damages, such a judgment will not be applied to bar a separate claim arising out of the same transaction. (Stephan v. Yellow Cab Co. (1975), 30 Ill. App. 3d 996, 333 N.E.2d 223.) In that case suit by the insurer to recover property damage was allowed although the insured’s suit (to whose rights the insurer was subrogated) had been dismissed with prejudice.

II

Section 1 of the Wrongful Death Act (Ill. Rev. Stat. 1981, ch. 70, par. 1) provides:

“Sec. 1. Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the person who or company or corporation which would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony.”

While the language of the statute would seem to be oriented toward the question whether the defendant’s conduct gives rise to a cause of action, the statute has been interpreted to require that the decedent on the date of his death be able to bring a cause of action. (Lambert v. Village of Summit (1982), 104 Ill. App. 3d 1034, 433 N.E.2d 1016.) Thus a release or accord and satisfaction by the deceased during his lifetime constitutes a defense to a wrongful death action. (Little v. Blue Goose Motor Coach Co. (1927), 244 Ill. App. 427.) Likewise it has been held that if the deceased once had a claim but it was barred by limitations on or before the date of his death, a wrongful death action will not lie. (Real v. Kim (1983), 112 Ill. App. 3d 427, 445 N.E.2d 783; Lambert v. Village of Summit (1982), 104 Ill. App. 3d 1034, 433 N.E.2d 1016.) But the controlling date is the date of his death. For example, the administrator may bring a wrongful death action even though the time to bring a survival action has expired. Mitchell v. United Asbestos Corp. (1981), 100 Ill. App. 3d 485, 426 N.E.2d 350.

Defendants contend that decedent commenced a lawsuit during his lifetime, which lawsuit was adjudicated against decedent, and thus he could not bring another action. It is of course true that if a person brings a suit during his lifetime which lawsuit is adjudicated either for or against plaintiff during his or her lifetime, plaintiff cannot again bring the same action and thus a wrongful death action will not lie. (Little v. Blue Goose Motor Coach Co. (1927), 244 Ill. App. 427.) But here there was no such adjudication during decedent’s lifetime. Rather, the adjudication only occurred after decedent’s death when the action was transformed into a survival action belonging to the administrator.

Defendant’s contention is apparently based on the supposition that the adjudication in October established that in February decedent had no cause of action but that the case he filed was, at the time of his death, subject to dismissal with prejudice. This supposition is, however, contrary to fact. The complaint at the time of decedent’s death alleged tortious conduct occurring in 1978. Service was made in 1979. Under the Supreme Court Rule the complaint could only have been dismissed without prejudice; not with prejudice. Furthermore, it appears from the record that at the time of his death decedent still had an absolute right under section 52 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 52), to dismiss the action without prejudice. It was only after decedent’s death that counsel by his conduct and failure to pursue the issues waived both the allegations of the complaint and the absolute right to dismiss. The court’s determination was made not upon the original complaint but upon the issues formed by the attorney’s conduct. But counsel’s power to bind decedent terminated automatically upon decedent’s death. (Gould Coal Co. v. Excelsior Brewing Co. (1960), 26 Ill. App. 2d 488, 168 N.E.2d 805 (abstract of opinion); Restatement (Second) of Agency sec. 120 (1958).) Thus it would be improper to impute this waiver to decedent so as to retroactively bar a perfectly good cause of action.

In addition, it should be noted that until 1974, a tort action for injuries which resulted in death did not survive the injured party’s death and the wrongful death action was the sole remedy. (Murphy v. Martin Oil Co. (1974), 56 Ill. 2d 423, 308 N.E.2d 583.) Thus any action brought by the injured party abated immediately upon his death from that injury. (O’Connor v. Schwindaman (1971), 131 Ill. App. 2d 869, 268 N.E.2d 455.) It follows that the legislature could not have expected or intended that conduct after the death of the injured party affecting the litigation brought during his or her lifetime could be found to bar a wrongful death action.

Ill

Plaintiff’s action for medical and drug expenses, etc. is barred by the doctrine of res judicata (Houghton v. Novak (1973), 9 Ill. App. 3d 699, 292 N.E.2d 905), since an identical claim for medical expenses was made in the first suit. Plaintiff as administrator is in privity with the decedent. Franciscy v. Jordan (1963), 43 Ill. App. 2d 344, 193 N.E.2d 219.

We are not convinced, however, that this bar should be applied to the claim for funeral expenses under the peculiar facts here present. At the time the suit was brought and at the time the motion to dismiss was filed by the appellees a claim for funeral expenses would have been inappropriate. After decedent’s death, it could of course have been added. But plaintiff instead elected to nonsuit the action as she had an absolute right to do. The suit was only reinstated on motion of appellees, so that appellees could have it dismissed with prejudice. Accordingly this court feels that the doctrine of res judicata should under these unique circumstances be applied only to the claims actually pleaded and not to a claim which had just arisen and which plaintiff had had no reason to plead.

For the foregoing reasons, the judgment of the trial court finding the claim for medical, drug and related expenses to be barred is affirmed. The judgment holding the wrongful death action and the claim for funeral expenses to be barred is reversed and the case remanded for further proceedings.

Affirmed in part; reversed in part and remanded for further proceedings.

JIGANTI and JOHNSON, JJ., concur.

      This court is aware of the rule that where a case was dismissed, the trial court not retaining jurisdiction, and nothing in the record shows that the trial court had regained jurisdiction after the expiration of the 30-day period when it entered the order vacating the dismissal, the appellate court cannot in the absence of such showing presume the trial court had jurisdiction but would have to conclude that the court had no jurisdiction and that all proceedings taken thereafter were void. (Bell Auto Repair & Painting Corp. v. Giddings (1952), 346 Ill. App. 209, 104 N.E.2d 659 (abstract).) However since plaintiff failed to raise this issue, it is waived. Taylor v. County of St. Clair (1974), 57 Ill. 2d 367, 312 N.E.2d 231.


author: JUSTICE GOLDBERG

text:
    VERLENA SIMMONS, Adm’r of the Estate of Harold Simmons, Plaintiff-Appellant, v. THE CITY OF CHICAGO et al., Defendants-Appellees.
    First District (1st Division)
    No. 82—2537
    Opinion filed October 3, 1983.

      Terrence K. Hegarty, Ltd., of Chicago (Terrence K. Hegarty, of counsel), for appellant.
    James D. Montgomery, Acting Corporation Counsel, of Chicago (Jerome A. Siegan and Frank W. Nagorka, Assistant Corporation Counsel, of counsel), for appellees.
   JUSTICE GOLDBERG

delivered the opinion of the court:

Verlena Simmons, as administrator of the estate of Harold Simmons, deceased (plaintiff), brought this action against the city of Chicago and Casey Hawkins (defendant), for injuries sustained by Harold Simmons (decedent), after decedent was shot by defendant while defendant was on duty as a Chicago police officer. Decedent, 16 years old, survived his injuries but died in an unrelated incident. A jury entered a verdict in favor of the city and defendant. The jury returned an affirmative answer to a special interrogatory which asked if defendant reasonably believed the force used by him was necessary to prevent decedent’s escape and defendant reasonably believed decedent had committed or attempted to commit a forcible felony. Plaintiff appeals.

Clifton Russel testified that on May 13, 1977, he left a currency exchange in Chicago after cashing his pay check. Decedent and another “boy” came up to him and stated “this is a stickup.” Decedent reached into the witness’ pocket. The witness slapped decedent’s hand. Decedent made a motion with his hand “indicating he had a gun. But he didn’t pull no gun up.” The witness ran into a delivery truck which was parked nearby. The assailants followed the witness onto the truck. They accused the witness of having a watch belonging to one of the boys. Decedent said, “Give it up or we’re going to blow your brains out.” Decedent then reached into the witness’ pocket and took some change and bus tokens. He saw the boys accost another person, Joe Lewis, in front of the currency exchange. The witness told defendant, “Them boys are the ones that stuck me up and they’re doing it to Joe Lewis.” The witness saw defendant chase the boys.

Joe Lewis testified decedent and two other men accosted him in front of the currency exchange after he had cashed his check. One stated, “This is a stickup.” This man “had his hand in his bosom.” Decedent reached into the witness’ pocket and took some money. The witness ran into the street and screamed “robbery” three or four times. Defendant chased the boys. Defendant yelled “Halt” three times before he fired his weapon. Decedent continued to run after defendant yelled at him. The defendant returned to the witness a $20 bill and a single dollar which were held by decedent.

On cross-examination the witness stated he had not told defendant decedent robbed him prior to the shooting. The witness also stated defendant fired a total of three shots. The first two were “warning shots.” On redirect examination the witness stated decedent was “running fast.”

Plaintiff called defendant to testify as an adverse witness. (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1102.) Clifton Russel told defendant Russel had just been accosted by three or four youths. One of them had his hand underneath his shirt and stated “give me your money or I will blow your head off.” Russel told the defendant the youths had just robbed him and they presently had Joe Lewis “down on the ground.” The defendant then saw three or four youths struggling with Joe Lewis in front of a currency exchange.

The defendant reported a “robbery in progress” on his police radio. He expected police cars to arrive “eventually.” Defendant chased decedent into a vacant lot behind the currency exchange. The defendant thought decedent was running so fast that defendant did not believe he could catch the decedent. The defendant yelled for decedent to stop. Defendant did not yell that he was going to shoot. He yelled to decedent to stop again. Defendant then fired two warning shots into the ground. He then fired at decedent hitting him in the back. Police cars arrived shortly after decedent was shot. Decedent had a $20 bill and a $1 bill in his hand. Defendant testified he shot at decedent “because he didn’t stop and I thought I would lose sight of him and his escape would be imminent.”

Dr. Charles M. Sheaf testified he treated decedent for the instant gunshot wound. He performed surgery on decedent. After surgery, decedent complained of swelling in his right leg up to the knee. Decedent told the doctor he had such swelling since childhood. Decedent had “pitting edema” from his ankle to his knee on his right leg. The decedent told the doctor that this condition existed all of his life.

On cross-examination the doctor stated he did not know if decedent had edema in his leg on May 13, 1977. When asked whether the condition would affect decedent’s ability to run, the doctor stated, “I cannot imagine that a person can run faster with a swollen leg.” However, he could “absolutely” not say that the condition would prevent decedent from running. In fact the doctor stated, “I am sure he [decedent] could run.”

Plaintiff testified she is the mother of decedent. She stated decedent “was never a very good runner” because “ he had problems with his ankles.” She had never taken decedent to a doctor for treatment of the condition.

Loretta Cato, decedent’s sister, testified decedent ran slowly. Generally, somebody would have to break in new shoes for decedent.

I

Section 7 — 5 of the Illinois Criminal Code provides in part (111. Rev. Stat. 1977, ch. 38, par. 7 — 5(a)):

“However, he [peace officer] is justified in using force likely to cause death or great bodily harm only when he reasonably believes that such force is necessary to prevent death or great bodily harm to himself or such other person, or when he reasonably believes both that:
(1) Such force is necessary to prevent the arrest from being defeated by resistance or escape; and
(2) The person to be arrested has committed or attempted a forcible felony or is attempting to escape by use of a deadly weapon, or otherwise indicates that he will endanger human life or inflict great bodily harm unless arrested without delay.”

We have found no case in which the constitutionality of this statute was specifically adjudicated. However, the enactment has been applied in a number of instances by this court (see, e.g., Onesto v. Police Board (1980), 92 Ill. App. 3d 183, 416 N.E.2d 13; LaMonte v. City of Belleville (1976), 41 Ill. App. 3d 697, 355 N.E.2d 70; Fornuto v. Police Board (1976), 38 Ill. App. 3d 950, 349 N.E.2d 521, appeal denied (1976), 63 Ill. 2d 556), as well as the Federal courts. Silverman v. Ballantine (7th Cir. 1982), 694 F.2d 1091; Rodriguez v. Schweiger (N.D. Ill. 1982), 534 F. Supp. 229.

In People v. Klein (1922), 305 Ill. 141, 146-47, 137 N.E. 145, the supreme court outlined the common law rule applicable to the use of deadly force by a police officer in effectuating an arrest:

“An officer, generally, may use a deadly weapon, even to the extent of taking life, if necessary to effect the arrest of a felon, for the reason that the safety of the public is endangered while such felon is at large; but the rule, by the great weight of authority both in this country and in England, is, that except in self-defense an officer may not use a deadly weapon or take life to effect an arrest for a misdemeanor, whether his purpose is to kill or merely to stop the other’s flight. This is true, even though the offender cannot be taken otherwise.”

By limiting the authority of police officers to use deadly force only against offenders engaged in a “forcible felony,” section 7 — 5 actually offers police officers a power more curtailed than the common law permitted. See Comment, Deadly Force to Arrest: Triggering Constitutional Review, 11 Harv. Civ. Rights—Civ. Lib. L. Rev. 361, 368 (1976).

To the best of our knowledge no statute of any other State which so proscribes this common law rule has been challenged on constitutional grounds. In fact, courts have generally upheld the broader common law authority to use deadly force in effectuating the arrest of a felon. See, e.g., Wiley v. Memphis Police Department (6th Cir. 1977), 548 F.2d 1247, cert. denied (1977), 434 U.S. 822, 54 L. Ed. 2d 78, 98 S. Ct. 65; Jones v. Marshall (2d Cir. 1975), 528 F.2d 132; Cunningham v. Ellington (W.D. Tenn. 1971), 323 F. Supp. 1072; cf. Wolfer v. Thaler (5th Cir. 1976), 525 F.2d 977, cert. denied (1976), 425 U.S. 975, 48 L. Ed. 2d 800, 96 S. Ct. 2178; Davis v. Balson (N.D. Ohio 1978), 461 F. Supp. 842.

The single case in which the local law regarding the use of deadly force in effectuating arrest of a felon was held to be unconstitutional is Mattis v. Schnarr (8th Cir. 1976), 547 F.2d 1007, vacated as advisory opinion sub nom. Ashcroft v. Mattis (1977), 431 U.S. 171, 52 L. Ed. 2d 219, 97 S. Ct. 1739. In Mattis the United States Court of Appeals for the Eighth Circuit declared unconstitutional the Missouri statute authorizing the use of deadly force “against a fleeing felon who has not used deadly force in the commission of the felony and whom the officer does not reasonably believe will use deadly force against the officer or others if not immediately apprehended.” 547 F.2d 1007, 1009.

The Mattis opinion elicited a strong dissent from three judges. The dissent stated (547 F.2d 1007, 1021 (Gibson, C.J., dissenting)):

“The majority opinion recognizes that the Missouri statutes at issue here are merely a codification of the common law dating from Fifteenth Century England and that at least 24 states have similar codifications of the common law currently in force. *** Thus, after a background of five centuries of the common law and two centuries of this country’s existence, lo and behold the majority, ipse dixit, has held that the common law principles embodied in these Missouri statutes are violative of the Due Process Clause of our Constitution. While acknowledging that other courts have reached a contrary decision, the majority shows no interest in the direction taken by other judicial authorities and turns elsewhere for guidance.”

Furthermore, Mattis has been criticized and expressly rejected by another circuit court. See Wiley v. Memphis Police Department (6th Cir. 1977), 548 F.2d 1247, 1252-53.

In any event we believe the statute at issue, as applied to the case at bar, satisfies even the standard established by the majority in Mattis. Defendant’s testimony reveals he believed the decedent was armed. Defendant was told decedent threatened to shoot his robbery victim and decedent indicated through his actions and statements that he was armed with a gun. Defendant also observed the decedent use force in effectuating a second robbery. These factors demonstrate strongly that defendant was acting under a reasonable belief and apprehension that decedent might well use deadly force against another victim including the officer himself. The statute here is beyond valid criticism on constitutional grounds.

II

There is no dispute that when decedent was shot he was fleeing after committing robbery. Robbery is classified as a forcible felony in Illinois. (Ill. Rev. Stat. 1977, ch. 38, par. 2 — 8.) Therefore, the only disputed issue for the trier of fact to determine was whether the force used by defendant was reasonable under the particular circumstances of the case at bar.

The determination of the reasonability of the force used by a peace officer in the performance of his duties is a question of fact to be resolved by the jury. (Schnepf v. Grubb (1970), 125 Ill. App. 2d 432, 261 N.E.2d 47, appeal denied (1970), 44 Ill. 2d 587.) In such situations, a reviewing court will not reverse the determination of the jury “unless a conclusion opposite to that of the jury is clearly evident and plain.” Schnepf v. Grubb (1970), 125 Ill. App. 2d 432, 439. See also, Lynch v. Board of Education (1980), 82 Ill. 2d 415, 423, 412 N.E.2d 447.

In Onesto v. Police Board (1980), 92 Ill. App. 3d 183, 416 N.E.2d 13, the court reversed the finding that a police officer used deadly force unreasonably in stopping a fleeing felon. In Onesto, a police officer killed a man who was fleeing after burglarizing a garage. The officer called to the offender to stop and believed he would not be able to apprehend the offender on foot. The court determined that the action of the officer in firing his weapon to stop the forcible felon was reasonable as a matter of law. 92 Ill. App. 3d 183, 186-87.

In the case at bar, the jury had ample evidence from which to conclude defendant acted reasonably and in accordance with law. Defendant testified he believed decedent was armed, he believed decedent would effect an escape, and he ordered decedent to halt and fired two warning shots before firing at decedent. We will not disturb the determination of the jury.

Ill

Plaintiff argues defense counsel acted improperly in commenting extensively on decedent’s involvement in criminal activity at the time of the shooting; in questioning plaintiff concerning her relationship with her current husband before they were married; in disputing plaintiff’s evidence regarding the condition of decedent’s leg and his ability to run; and in counsel’s alleged insinuation that plaintiff’s attorney manufactured evidence. Plaintiff argues that although he did not object to comments by defense counsel in final argument, these matters were in effect plain error. We have carefully considered these contentions. We find no error in this regard. After reviewing all of these acts of alleged misconduct, we conclude that none of them denied plaintiff a fair and impartial trial.

Decedent’s criminal activity immediately prior to the shooting was not disputed by plaintiff or any witness at trial. Decedent’s participation in forcible felonies was of critical importance in the determination of the reasonableness of defendant’s actions. Defense counsel was clearly entitled, in fact it was his duty, to comment upon these facts. See Bruske v. Arnold (1969), 44 Ill. 2d 132, 254 N.E.2d 453, cert. denied (1970), 398 U.S. 905, 26 L. Ed. 2d 65, 90 S. Ct. 1697.

As regards questions to plaintiff concerning her relationship with her husband, plaintiff’s objection to that line of questioning was promptly sustained by the trial court. We find no prejudice to plaintiff. See Looft v. Missouri Pacific R.R. Co. (1982), 104 Ill. App. 3d 152, 158, 432 N.E.2d 1152.

We believe counsel’s comments disputing the alleged condition of decedent’s leg and his ability to run were within the bounds of proper argument. (See Levenson v. Lake-To-Lake Dairy Cooperative (1979), 76 Ill. App. 3d 526, 538-39, 394 N.E.2d 1359, appeal denied (1980), 79 Ill. 2d 626.) There was no direct evidence that decedent had this condition at the time of the shooting. In fact, there was considerable evidence that decedent could, and indeed did, run with a good amount of speed.

Finally, defense counsel questioned a nurse about a copy of a bill allegedly sent to decedent after his stay at the hospital. Counsel asked the witness whether she had an independent recollection of the bill and whether she produced the copy at the request of plaintiff’s attorney. We find the questions proper. Counsel was merely investigating the authenticity of an offered exhibit as his duty required.

IV

Plaintiff argues the trial court erred in allowing the robbery victims to testify about the robberies themselves; in allowing defendant to testify in police uniform; and in denying plaintiff’s request to use overhead slides to accompany the testimony of Dr. Sheaf and defendant. We find no error here.

Initially, plaintiff failed to object specifically to the testimony of the robbery victims and therefore has waived objections to that testimony. (Shell Oil Co. v. Department of Revenue (1983), 95 Ill. 2d 541, 550, 449 N.E.2d 65; Joynt v. Barnes (1979), 71 Ill. App. 3d 187, 204, 388 N.E.2d 1298, appeal denied (1979), 79 Ill. 2d 611.) In addition, the testimony was relevant to explain the state of mind of the victims, and how they would have appeared to defendant when they recounted the events to him. These factors became relevant in determining whether defendant had a reasonable belief that decedent had committed a forcible felony and whether decedent was dangerous.

Likewise we find no error in the ruling by the trial court allowing defendant to wear his uniform during his testimony. There is no dispute that defendant was active as a police officer. In fact plaintiff sued defendant in his capacity of a police officer. Plaintiff does not indicate and we do not see how plaintiff could possibly have been prejudiced through the wearing of the defendant’s uniform.

The admission of demonstrative evidence is within the sound discretion of the trial court. (Lake County Forest Preserve District v. Vernon Hills Development Corp. (1980), 85 Ill. App. 3d 241, 245-46, 406 N.E.2d 611, aff’d and remanded (1982), 92 Ill. 2d 72.) Furthermore, the evidence plaintiff wished to produce through the overhead slides or transparencies was cumulative to the testimony of Dr. Sheaf

and defendant. The admission of cumulative evidence is within the discretion of the trial court. (Christopherson v. Hyster Co. (1978), 58 Ill. App. 3d 791, 805, 374 N.E.2d 858, appeal denied (1978), 71 Ill. 2d 607.) We find no abuse of discretion in these evidentiary rulings.

V

Finally, plaintiff argues the trial judge made various comments which prejudiced the plaintiff’s case in the minds of the jurors. We disagree.

We have perused the entire record presented to us. In our opinion the trial judge acted with commendable decorum, patience and even-handedness. A trial judge must be allowed wide latitude in the conduct of a trial. (Vinke v. Artim Transportation System, Inc. (1980), 87 Ill. App. 3d 400, 412, 408 N.E.2d 1112, appeal denied (1980), 81 Ill. 2d 606.) We have not found any comment by the trial judge which we believe could have unduly affected the outcome of the trial. Babcock v. Chesapeake & Ohio Ry. Co. (1979), 83 Ill. App. 3d 919, 404 N.E.2d 265, appeal denied (1980), 81 Ill. 2d 589.

For these reasons the judgment appealed from is affirmed.

Judgment affirmed.

McGLOON and CAMPBELL, JJ., concur.


author: JUSTICE RIZZI

text:
    THE REGIONAL TRANSPORTATION AUTHORITY et al., Plaintiffs-Appellees, v. THE ILLINOIS COMMERCE COMMISSION et al., Defendants-Appellants—(Suburban Transit System, Inc., Plaintiff-Appellee, v. The Regional Transportation Authority et al., Defendants-Appellees—(The Illinois Commerce Commission, Defendant-Appellant)).
    First District (3rd Division)
    No. 81—1849
    Opinion filed September 28, 1983.

      Tyrone C. Fahner, Attorney General, of Springfield (Hercules F. Bolos, Special Assistant Attorney General, and James E. Weging, Assistant Attorney General, of counsel), for appellant.
    Jeffrey R. Ladd and Lawrence M. Gavin, both of Boodell, Sears, Sugrue, Giambalvo & Crowley, of Chicago, for appellee Suburban Transit System, Inc.
    James C. Munson, Roger L. Taylor, and Kathleen Kelly Spear, all of Kirkland & Ellis, of Chicago (Carl J. Frank, of Regional Transportation Authority, of counsel), for appellee Regional Transportation Authority.
   JUSTICE RIZZI

delivered the opinion of the court:

In two separate actions, plaintiff, Suburban Transit System, Inc. (Suburban), and plaintiffs the Regional Transportation Authority (RTA) and West Towns Bus Company (West Towns), sought injunctive and other relief as a result of the alleged attempts by defendants, the Illinois Commerce Commission (ICC) and its commissioners, to interfere with plaintiffs’ operations. The cases were consolidated, and the court found that the ICC lacked jurisdiction over transportation agencies with RTA grant agreements and enjoined defendants “from proceeding any further with regards to the license of the bus companies involved or in any manner interfering with the operation, control and regulation of these bus companies.” Defendants appeal. West Towns was allowed to withdraw from the appeal after the RTA purchased all of West Towns’ operating rights and certain of its assets. We affirm.

In 1973, the Illinois General Assembly passed the RTA Act (Ill. Rev. Stat. 1975, ch. 111%, par. 701.01 et seq.), which provided for the creation of the RTA as a single authority to provide and facilitate public transportation in the northeastern area of the State (Ill. Rev. Stat. 1975, ch. lll2/s, par. 701.02(b)). The RTA is empowered to provide public transportation by purchasing service from transportation agencies through purchase of service agreements, by grants to transportation agencies or by operating transportation service itself. (Ill. Rev. Stat. 1981, ch. lll2/3, par. 702.01(a).) Both Suburban and West Towns operated bus service with grant contracts from the RTA. Suburban and West Towns also held certificates of public convenience and necessity which had been issued by the ICC.

In 1981, as a result of the RTA’s inability to meet all of its financial obligations, Suburban and West Towns discontinued bus service. The ICC issued citation orders against both companies directing them to appear before the ICC and show cause why their certificates should not be revoked and penalties imposed for their failure to provide and maintain adequate and effective bus service. Prior to the issuance of the citation order against West Towns, the RTA and West Towns filed a complaint against defendants for injunctive and other relief, alleging that the ICC had threatened to revoke the licenses of West Towns and other bus companies. Suburban, after receiving the citation order, filed its complaint against the RTA and the ICC for declaratory judgment, injunction and other relief, and it obtained a temporary restraining order which prevented the ICC from taking action to revoke its certificate. Plaintiffs’ suits were consolidated on the basis of the common threshold question of the ICG’s jurisdiction over Suburban and West Towns. The court resolved the jurisdictional issue in favor of plaintiffs and ordered injunctive relief.

Initially, defendants assert that the record does not support the court’s findings that the ICC attempted to exercise jurisdiction over RTA contracts. Defendants maintain that in their answer they denied any interference with or interest in RTA contracts or their terms and that the issues raised in the citation orders against Suburban and West Towns strictly involved violations of the Public Utilities Act (Ill. Rev. Stat. 1981, ch. lll2/3, par. 1 et seq.). We find no merit in this argument.

First, we note that the court did not make a specific finding that the ICC attempted to exercise jurisdiction over the RTA contracts. Moreover, as the court noted, whether the ICC has jurisdiction here is a question of law involving statutory interpretation. Therefore, a factual determination that defendants had attempted to exercise jurisdiction is not necessary to support either the conclusion that the ICC lacked jurisdiction over Suburban, West Towns or their RTA grant contracts, or the order of injunctive relief. Finally, even if the citation orders issued by the ICC against Suburban and West Towns involved violations of the Public Utilities Act, the question here is whether that act and the RTA Act prevent the ICC from proceeding against the bus companies regardless of the nature of the violation. Thus, we believe that the court’s findings and conclusions are wholly supported by the record.

The central issue here is whether the ICC has jurisdiction over bus companies which have grant contracts with the RTA. Defendants contend that the ICC has jurisdiction on the basis of certain provisions of the Public Utilities Act (Ill. Rev. Stat. 1981, ch. lll2/3, par. 1 et seq.) and the RTA Act (Ill. Rev. Stat. 1981, ch. lll2/3, par. 701.01 et seq.), the legislative history of section 10b of the Public Utilities Act (Ill. Rev. Stat. 1981, ch. lll2/3, par. 10b), and prior administrative practice.

The Public Utilities Act provides for the general supervision of all public utilities by the ICC. (Ill. Rev. Stat. 1981, ch. lll2/3, par. 8.) However, “public utilities” do not include “such public utilities which are engaged in the transportation of persons by motor bus to the extent that the transportation is conducted pursuant to a valid and subsisting contract with a political subdivision or a municipal corporation in this State ***.” (Ill. Rev. Stat. 1981, ch. lll2/s, par. 10.3(5).) The RTA is a political subdivision and municipal corporation. (Ill. Rev. Stat. 1981, ch. lll2/3, par. 701.04.) There is no dispute that Suburban and West Towns were bus companies which had valid grant contracts with the RTA. We conclude, therefore, that as long as the grant contracts were in effect, Suburban and West Towns were not subject to ICC jurisdiction because they were not public utilities within the meaning of the Public Utilities Act. Cf Regional Transportation Authority v. Burlington Northern Inc. (1981), 100 Ill. App. 3d 779, 782-83, 426 N.E.2d 1143, 1145-46 (where the court noted that under sections 2.04 and 2.06 of the RTA Act (Ill. Rev. Stat. 1981, ch. lll2/s, pars. 702.04, 702.06), if some contractual relationship between the RTA and the Burlington was still in effect, the ICC had no jurisdiction to determine fares to be charged by Burlington and Burlington had no authority to charge fares not specifically approved by the RTA).

Defendants contend that the better reading of section 10.3(5) is that it applies only to direct RTA operation of motor bus transportation. We find defendants’ interpretation contrary to the express wording of the statute, which plainly applies to all bus transportation conducted pursuant to valid and subsisting contracts with political subdivisions or municipal corporations such as the RTA. Defendants also contend that the certificates of public convenience and necessity-held by Suburban, West Towns and other companies with RTA grant contracts override any exemption and create at least concurrent jurisdiction in the ICC and the RTA. We believe, however, that the statute clearly provides that while valid contracts are in effect between companies providing bus transportation and the RTA, the ICC has no jurisdiction. Under the statute, if no valid contracts exist, such companies may become, by definition, public utilities subject to ICC jurisdiction.

Defendants assert that if the ICC lacks jurisdiction over Suburban and West Towns, we must order the ICC to cancel the certificates of public convenience and necessity which it issued to Suburban and West Towns. We decline to do so. Neither the Public Utilities Act nor the RTA Act provides that certificates issued by the ICC become void when a transportation agency enters into a contract with the RTA. We do not believe that the legislature intended such a result. Rather, both the Public Utilities Act and the RTA Act indicate that the RTA has sole jurisdiction over the companies with which it has a contractual relationship, but if the contractual relationship ends, jurisdiction reverts to the ICC. In this way, companies remain subject to the regulatory control of either the RTA or the ICC at all times.

We find support for our view of the legislative scheme in the stated purpose of the RTA Act which is

“to provide for, aid and assist public transportation in the northeastern area of the State *** by providing for the creation of a single authority *** with the power and competence to provide and facilitate public transportation which is attractive and economical to users, comprehensive, coordinated among its various elements, economical, safe, efficient and coordinated with area and State plans.” (Emphasis added.) (Ill. Rev. Stat. 1981, eh. 111%, par. 701.02(b).)

We believe that the legislature intended to provide for the creation of the RTA as a strong agency, with control over its own contracts, which would cooperate with, but not be dominated by, the ICC.

We find further support for our view of the legislative scheme in some of the other provisions of the Public Utilities Act and the RTA Act. Section 2.06 of the RTA Act removes the RTA from the purview of the Public Utilities Act and provides, inter alia, that

“[transportation agencies which have any purchase of service agreement with the [RTA] shall not be subject to that [Public Utilities] Act as to any public transportation which is the subject of such agreement. No contract or agreement entered into by any transportation agency with the [RTA] shall be subject to approval of or regulation by the Illinois Commerce Commission.” (Ill. Rev. Stat. 1981, ch. HP/s, par. 702.06(c).)

This section parallels section 10b of the Public Utilities Act, which was amended upon passage of the RTA Act to require that the ICC cooperate with the RTA, and which provides, inter alia:

“Transportation Agencies which have any purchase of service agreement with the [RTA] as provided in the ‘[RTA] Act’ shall not be subject to this [Public Utilities] Act as to any public transportation which is the subject of such agreement. ***
No contract between any Transportation Agency and the [RTA] *** shall, except as provided in such [RTA] Act, be subject to the supervision, regulation or approval of the [ICC] ***.” Ill. Rev. Stat. 1981, ch. lll2/s, par. 10b.

Thus, both Acts exempt RTA contracts with transportation agencies from ICC jurisdiction.

Defendants, however, point out that the RTA Act distinguishes three methods of RTA subsidization of public transportation: purchase of service agreements, grant contracts and direct operation. Defendants then assert that both acts specifically exempt purchase of service agreements but not subsidy grants or other RTA contracts from ICC jurisdiction. Thus, defendants argue, “[t]he very fact that within the same section of the RTA Act *** the General Assembly exempted all contracts from [ICC] approval but exempted only public utilities holding purchase of service agreements from [ICC] jurisdiction indicates the General Assembly did not intend to exempt public utilities holding other types of RTA agreements from [ICC] jurisdiction.” Defendants also maintain that a broad reading of the contracts exemption renders superfluous the specific language regarding purchase of service agreements. We find no merit in defendants’ argument.

First, we believe that there is no basis for making the distinction, which is implicit in defendants’ argument, between ICC jurisdiction and ICC approval, regulation, or supervision. Further, we find that the Acts, read together, unambiguously remove all RTA contracts from ICC jurisdiction. Moreover, we believe that separate mention of purchase of service agreements is understandable in light of the statutory requirements for purchase of service agreements which explicitly provide for a certain amount of ICC involvement under specified circumstances. See Ill. Rev. Stat. 1981, ch. lll2/3, par. 702.02(c).

Defendants point to parts of section 10b of the Public Utilities Act (Ill. Rev. Stat. 1981, ch. lll2/3, par. 10b) and section 2.06 of the RTA Act (Ill. Rev. Stat. 1981, ch. lll2/s, par. 702.06) which, they contend, reserve ICC jurisdiction in the event of discontinuations of service where RTA grant contracts are involved. Section 2.06 of the RTA Act provides, inter alia, that

“[i]f the [RTA] Board shall determine that any particular public transportation service provided by a transportation agency with which the [RTA] has a purchase of service agreement is not necessary for the public interest and shall, for that reason, decline to enter into any purchase of service agreement for such particular service, then the [RTA] shall have no obligation pursuant to Section 2.02(c) to offer or make a purchase of service agreement with respect to that particular service and the transportation agency may discontinue the particular service. Such discontinuation shall not be subject to the approval of or regulation by the [ICC].” (Ill. Rev. Stat. 1981, ch. lll2/3, par. 702.06(c).)

A parallel provision in section 10b of the Public Utilities Act states that when the determination has been made that the transportation service provided by an agency with a purchase of service agreement is not necessary, and the RTA has declined to enter into a purchase of service agreement pursuant to the RTA Act, “the discontinuation of such service by such Transportation Agency shall not be subject to the supervision, regulation or approval of the [ICC].” (Ill. Rev. Stat. 1981, ch. lll2/3, par. 10b.) On the basis of these parallel provisions, defendants, relying on the rule expressio unius est exclusio alterius, maintain that the only time the ICC does not have jurisdiction over a discontinuation of service is when an RTA purchase of service agreement is involved. Thus, defendants argue that the ICC has jurisdiction where, as here, a transportation agency with an RTA grant contract discontinues service. We disagree.

In both the Public Utilities Act and the RTA Act the specific language regarding the discontinuation of service by transportation agencies with purchase of service agreements is preceded by broad language exempting any RTA contract with a transportation agency from ICC jurisdiction. We do not believe that the specific language regarding transportation agencies with purchase of service agreements was meant to single out those agencies as the only ones exempt from ICC jurisdiction. Rather, we believe that this language was necessary in light of the role the ICC plays when purchase of service agreements are involved under the circumstances specified in section 2.02 of the RTA Act. (See Ill. Rev. Stat. 1981, ch. lll2/s, par. 702.02(c).) Thus, we conclude that the Acts preclude ICC jurisdiction over discontinuations of service by transportation agencies with RTA grant contracts.

Defendants point to an additional section of the RTA Act which they contend reflects a legislative intent to reserve ICC jurisdiction over agencies with RTA grant agreements. Section 2.04 of the RTA Act, which concerns fares and nature of service, provides:

“Whenever the [RTA] provides any public transportation pursuant to grants made after June 30, 1975, to transportation agencies for operating expenses (other than with regard to experimental programs) or pursuant to any purchase of service agreement, the purchase of service agreement or grant contract shall provide for the level and nature of fares or charges to be made for such services, and the nature and standards of public transportation to be so provided. *** In the case of a grant to a transportation agency which remains subject to [ICC] supervision and regulation, the [RTA] shall exercise the powers set forth in this Section in a manner consistent with such supervision and regulation by the [ICC].” (Ill. Rev. Stat. 1981, ch. 111%, par. 702.04.)

Defendants maintain that this section of the RTA Act states that transportation agencies are still subject to ICC jurisdiction when they hold RTA grants. We disagree.

We believe that the legislative scheme here leaves room for transportation agencies which have operations funded with RTA grants as well as operations which are not funded with RTA grants. Plainly, a transportation agency would remain subject to ICC supervision and regulation of any operations which are not funded with RTA grants. Thus, we believe that in order to avoid inconsistencies in fares and nature of service within transportation agencies which have both types of operations, section 2.04 of the RTA Act simply directs that fares and nature of service for the operations funded with RTA grants be consistent with ICC requirements.

Next, defendants argue that the legislative history of section 10b of the Public Utilities Act supports their contention that the ICC has jurisdiction here. However, in view of the plain language of both Acts exempting transportation agencies with RTA grant contracts from ICC jurisdiction, we find it unnecessary and irrelevant to compare section 10b of the Public Utilities Act as originally presented to the General Assembly with section 10b as actually enacted.

Finally, defendants argue that prior consistent administrative practice indicates that the ICC has jurisdiction here. Defendants contend that applications and petitions by Suburban and West Towns and correspondence initiated by the RTA evidence plaintiffs’ recognition of the ICG’s jurisdiction over Suburban and West Towns. In addition, defendants maintain that the court erred in refusing to receive into evidence documents which defendants assert would prove the prior consistent administrative practice. We find no merit in defendants’ arguments.

The ICC derives its power and authority solely from the statute creating it. (City of Chicago v. Illinois Commerce Com. (1980), 79 Ill. 2d 213, 217-18, 402 N.E.2d 595, 597.) The ICC is without power to extend its jurisdiction as that is within the prerogative of the legislature. (Inland Real Estate Corp. v. Village of Palatine (1982), 107 Ill. App. 3d 279, 281, 437 N.E.2d 883, 885.) Thus, if the applicable statutes exempt transportation agencies with RTA grant contracts from ICC jurisdiction, ICC jurisdiction over such agencies could not be extended by administrative acts or practices. We therefore conclude that prior administrative practice is irrelevant to the issue of ICC jurisdiction in this case and that the court did not need to consider any documents purporting to prove prior administrative practice.

In conclusion, we find, on the basis of the Public Utilities Act and the RTA Act, that the ICC lacked jurisdiction over Suburban and West Towns.

Accordingly, the judgment of the trial court is affirmed.

Affirmed.

McNAMARA, P.J., and WHITE, J., concur.


author: JUSTICE BARRY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WINSTON L.M. SENOR, Defendant-Appellant.
    Fourth District
    No. 4—82—0565
    Opinion filed October 11, 1983.

      Daniel D. Yuhas and Gary R. Peterson, both of State Appellate Defender’s Office, of Springfield, for appellant.
    J. William Roberts, State’s Attorney, of Springfield (Robert J. Biderman, of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE BARRY

delivered the opinion of the court:

The defendant, Winston Señor, appeals from his conviction on two counts of attempt (murder) and armed robbery. The defendant argues on appeal that the trial court erred in admitting evidence of his prior conviction. We affirm.

The facts of the case are not disputed. After robbing a grocery store at gunpoint, the defendant fired two shots at the police officers who were pursuing him. The defendant admitted robbing the store and firing the shots. However, he testified that he did not intend to hit the officers when he fired at them.

The State impeached the defendant with evidence of a prior conviction. At the time the record of the earlier conviction was introduced into evidence, the defendant made no objection to its introduction. The trial court admitted the record into evidence without any comment. No post-trial motion was filed by the defendant.

The defendant now argues that the trial court committed reversible error when it admitted the prior conviction into evidence because the court did not, sua sponte, indicate a balancing of probity of the conviction against its prejudicial effect.

In Illinois, the rule pertaining to the use of prior convictions was set forth in People v. Montgomery (1971), 47 Ill. 2d 510, 268 N.E.2d 695, wherein the Illinois Supreme Court adopted the proposed Federal Rule of Evidence 609. Proposed Rule 609 provided in relevant part:

“ ‘Rule 609. Impeachment by Evidence of Conviction of Crime
(a) General Rule. For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime, except on a plea of nolo contendere, is admissible but only if *** the judge determines that the probative value of the evidence of the crime is substantially outweighed by the danger of unfair prejudice.’ ” (47 Ill. 2d 510, 516, 268 N.E.2d 695, 698.)

The court in Montgomery held that the admission of evidence of a prior conviction rested in the sound discretion of the court. A trial court is therefore required to weigh the probative value of the conviction against its prejudice to the defendant before admitting the conviction. People v. Preston (1978), 61 Ill. App. 3d 434, 378 N.E.2d 372; People v. Monigan (1981), 97 Ill. App. 3d 885, 423 N.E.2d 546.

However, as noted above, the defendant failed to object to the admission of his prior conviction at trial and did not file a post-trial motion. It is well established that the failure by the defendant to raise an issue in the written motion for a new trial constitutes waiver of that issue on review absent “plain error.” People v. Pickett (1973), 54 Ill. 2d 280, 296 N.E.2d 856.

In People v. Preston (1978), 61 Ill. App. 3d 434, 378 N.E.2d 372, the defendant also argued that the trial court had failed to perform the Montgomery balancing test. The defendant Preston was impeached with his prior conviction during cross-examination. Like the defendant in the instant case, Preston failed to object to the use of his prior conviction during trial and in his post-trial motion. The Preston court held that the issue was therefore waived.

In reaching its decision, the Preston court noted that, had a timely objection been made, the trial court would have been in a position to make a ruling based on the Montgomery criteria. Similarly, the trial court in People v. Monigan (1981), 97 Ill. App. 3d 885, 423 N.E.2d 546, was given the opportunity to explain its ruling on the admissibility of a prior conviction where the defendant Monigan raised the issue in his post-trial motion.

In the instant case, the defendant neither objected at trial nor filed a post-trial motion. There is no “plain error” on the record before us. We therefore find that the issue of the admissibility of the defendant’s prior conviction is waived.

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

Affirmed.

STOUDER, P.J., and ALLOY, J., concur.


author: JUSTICE GREEN

text:
    MICHAEL KENT TREXLER, a Disabled Adult by his Father and Guardian, Larry Eugene Trexler, Plaintiff-Appellant, v. JOHN L. HUBBARD, M.D., et al., Defendants-Appellees.—MICHAEL KENT TREXLER, a Disabled Adult, by his Father and Guardian, Larry Eugene Trexler, Plaintiff-Appellant, v. CHRYSLER CORPORATION, Defendant-Appellee.
    Fourth District
    Nos. 4—82—0650, 4—83—0261 cons.
    Opinion filed October 13, 1983.

      Stephen O. Willoughby, of Bennett, Willoughby & Latshaw, P.C., of Decatur, for appellant.
    Jerald E. Jackson and Mark E. Jackson, both of Samuels, Miller, Schroeder, Jackson & Sly, of Decatur, for appellee Decatur Memorial Hospital.
    Armstrong, Winters, Prince, Featherstun & Johnson, of Decatur (Evan H. Johnson and Daniel L. Gaumer, of counsel), for appellee Robert R. Kraus.
    Craig & Craig, of Mattoon (Richard F. Record, Jr., Michael D. Gifford, and Rochelle A. Funderburg, of counsel), for appellees John L. Hubbard and J. H. Weiner.
    Erikson & Davis, Ltd., of Decatur (Garry E. Davis and Theodore E. Paine, of counsel), for appellee Boyd E. Nelson.
    LeFevre, Zeman & Oldfield Law Group, Ltd., of Vandalia (S. Gene Sch-warm, of counsel), for appellee Fayette County Hospital.
    Cassiday, Schade & Gloor, of Chicago (John J. Pappas, Debra K. Marcus, and Timothy J. Ashe, of counsel), for appellee Chrysler Corporation.
   JUSTICE GREEN

delivered the opinion of the court:

On December 21, 1981, plaintiff, Michael Kent Trexler, brought two suits in the circuit court of Macon County. The suits arose from an occurrence on October 15, 1978, when a van in which plaintiff was riding overturned causing him severe injuries. Plaintiff sought recovery for those injuries. One suit was against defendant, Chrysler Corporation, manufacturer of the van. The tort of defective product was charged. The other suit was against the providers of medical services. They were charged with negligence in treating plaintiff for injuries he received when the van overturned. The circuit court entered summary judgments in favor of Chrysler on March 29, 1983, in one case and judgments on motions to dismiss in favor of the other defendants in September and October 1982 in the other case. Plaintiff has appealed all judgments. The cases have been consolidated on appeal.

The above judgments were based on a release given by Larry Eugene Trexler as guardian for plaintiff pursuant to appointment by the circuit court of Fayette County. The release stated it released Timothy Clayton, the driver of the van, certain named insurance companies “and all other persons, firms, corporations, associations or partnerships” from claims which “now have or which may hereafter accrue on account of or in any way growing out of any and all known and unknown, foreseen and unforeseen bodily and personal injuries *** and the consequences thereof resulting” from the occurrence when the van turned over. The release did not mention any of the defendants by name.

In asserting that the trial court erred in granting the above judgments based on the release, plaintiff contends: (1) The release was void because, in executing it, the guardian exceeded the authority granted him by the circuit court of Fayette County; (2) granting judgment was improper because plaintiff should have been permitted to show by parol that the parties to the release did not intend to release defendants; (3) the release did not release any party as to any medical malpractice which had not been discovered by plaintiff by the time the release was executed.

All causes of action alleged here arose after March 1, 1978. Accordingly; by the terms of section 1 of “An Act in relation to contribution among joint tortfeasors” (Ill. Rev. Stat. 1981, ch. 70, par. 301), the Act is applicable to the matters alleged here. Section 2 of the Act states:

“Right of Contribution, (a) Except as otherwise provided in this Act, where 2 or more persons are subject to liability in tort arising out of the same injury to person or property, or the same wrongful death, there is a right of contribution among them, even though judgment has not been entered against any or all of them.
(b) The right of contribution exists only in favor of a tortfeasor who has paid more than his pro rata share of the common liability, and his total recovery is limited to the amount paid by him in excess of his pro rata share. No tortfeasor is liable to make contribution beyond his own pro rata share of the common liability.
(c) When a release or covenant not to sue or not to enforce judgment is given in good faith to one or more persons liable in tort arising out of the same injury or the same wrongful death, it does not discharge any of the other tortfeasors from liability for the injury or wrongful death unless its terms so provide but it reduces the recovery on any claim against the others to the extent of any amount stated in the release or the covenant, or in the amount of the consideration actually paid for it, whichever is greater.
(d) The tortfeasor who settles with a claimant pursuant to paragraph (c) is discharged from all liability for any contribution to any other tortfeasor.
(e) A tortfeasor who settles with a claimant pursuant to paragraph (c) is not entitled to recover contribution from another tortfeasor whose liability is not extinguished by the settlement.
(f) Anyone who, by payment, has discharged in full or in part the liability of a tortfeasor and has thereby discharged in full his obligation to the tortfeasor, is subrogated to the tortfeasor’s right of contribution. This provision does not affect any right of contribution nor any right of subrogation arising from any other relationship.” (Ill. Rev. Stat. 1981, ch. 70, par. 302.)

This legislation bears upon each decision we must make.

Section 2(c) of the Act changes the law by providing that a release given in good faith to one of several persons liable “in tort arising out of the same injury” releases only the person or entity to whom the release is granted unless the terms of the release provide for the release of others. Previously, the release of one person, liable in the foregoing manner, released all others liable in tort arising from the same injury unless rights against others were expressly reserved. (Porter v. Ford Motor Co. (1983), 96 Ill. 2d 190, 449 N.E.2d 827.) Under prior law a mere release of Clayton by the guardian would have released all of the defendants. Alberstett v. Country Mutual Insurance Co. (1979), 79 Ill. App. 3d 407, 398 N.E.2d 611.

The provision of the release purporting to discharge “all other persons, firms, corporations, associations or partnerships” was broad enough to include all defendants. However, plaintiff maintains that its breadth exceeded the authority granted the guardian by the circuit court of Fayette County when the guardianship estate of the ward was being administered.

Pertinent portions of the record of the circuit court of Fayette County concerning the administration of the guardianship of Michael Kent Trexler were before the circuit court of Macon County in ruling upon the judgments on appeal here. That record showed that on January 29, 1980, the guardian petitioned the court for authority to make a settlement on behalf of the ward. The petition alleged that: (1) The ward had “a cause of action against Timothy Clayton,” and (2) “[a] settlement of $100,000 [had] been offered.” (Emphasis added.) The guardian sought “leave to settle the cause of action for the sum offered.” (Emphasis added.) In ruling on the petition, the court order directed that:

“1. The cause of action be settled for $100,000 and, upon receiving that sum, the guardian execute and deliver to the party against whom the cause of action lies a release and discharge from all liability or covenant not to sue on account of the injuries.” (Emphasis added.)

Every reference to the matter to be settled in the petition and order referred to the phrase “cause of action” in the singular. However, the order did authorize that a release be given to “the party against whom the cause of action lies,” and that it be such as to discharge that person “from all liability.” We conclude that use of the phrase “all liability” indicated an intent on the part of the court to authorize the guardian to give a discharge of sufficient breadth to release as many people as necessary to prevent Clayton from having liability, directly or by way of claim for contribution, arising from the occurrence.

If the release of Clayton was obtained by him in good faith, other persons liable for the injuries to plaintiff would be barred from seeking contribution from him by the provisions of section 2(d) of the Act. The release of him alone would not, of itself, prevent other tortfeasors from claiming the release was not obtained in good faith and seeking contribution on that basis. Thus, to release Clayton from “all liability” it was necessary to release other potential tortfeasors involved who might be able to obtain contribution from him under section 2(a) if the release was found not to have been given in good faith. Chrysler as a potential joint tortfeasor was such an entity. A release of Chrysler was necessary to protect Clayton from all liability.

The question of the potential liability for contribution Clayton might have to providers of the medical services is a more complicated question. Any liability that Clayton or Chrysler had to plaintiff would include liability for plaintiff’s original injuries and also that for aggravation of those injuries arising from negligence of the medical service providers. (Tidwell v. Smith (1960), 27 Ill. App. 2d 63, 169 N.E.2d 157.) On the other hand, the liability of the medical service providers would extend only to the damages arising from the aggravation of the injuries. (Prosser, Torts sec. 52, at 320-21 (4th ed. 1971).) As Clayton’s liability could have included liability for aggravation of the injuries, it appears that any medical provider, held liable to plaintiff in a subsequent suit, could bring action against Clayton contending his release was not taken in good faith and requesting contribution. No such case has been called to our attention, but the theory of contribution incorporated in the legislation seems to permit such recovery. For a representative to give a release eliminating the possibility of that type of suit is consistent with the granting of a release from all liability.

We conclude that the guardian had authority to release all defendants to the two lawsuits.

We consider next, plaintiff’s contention that he should have been permitted to show by parol that the parties to the release did not intend to release anyone other than Clayton and his insurers. Plaintiff recognizes that ordinarily, absent ambiguity, a party to a release has not been entitled to introduce extrinsic evidence to vary the terms of a written instrument operating as a release. He maintains that he should have been permitted to do so here because: (1) With the adoption of legislation for contribution among joint tortfeasors, the old rule should be abolished; and (2) in any event, defendants were strangers to the release. The two theories are related.

Plaintiff maintains that one reason why parol evidence should have been admitted is that an alleged tortfeasor is now less likely to have intended to obtain a release for others because, under section 2(d) of the Act, a release of himself is sufficient to also protect himself from claims by others for contribution. However, as we have explained, the party obtaining the release is still subject to claims that the release was not granted in good faith. Moreover, the person taking the release has incentive to obtain releases of as many people as possible because his rights to contribution are limited by section 2(e) to others whose liability to the injured party has been discharged by the release.

Plaintiff cites cases from other jurisdictions to show that the modern trend is to permit the release of one tortfeasor to release others only when that is the intention of the parties and to permit the introduction of extrinsic evidence to show the intent. A logical reason to permit the introduction of the extrinsic evidence was to change the harshness of the common law rule that the release of one joint tortfeasor released all joint tortfeasors even though the release did not so state. (See 3 Corbin, Contracts sec. 596, at 576 (I960).) Section 2(a) of the Act has abolished the common law rule in this State.

In a series of cases deciding Illinois law, courts have held that when the question arises as to whether a release discharges a stranger to the release from liability, the parol evidence rule does not prevent the introduction of extrinsic evidence to show whether the parties to the release intended to discharge the stranger. The series began with O’Shea v. New York, C. & St. L. R. Co. (7th Cir. 1901), 105 F. 559, where an injured party was permitted to show by extrinsic evidence that a release he gave to one alleged tortfeasor was intended to be a covenant not to sue, and thus not a bar to suit against another alleged tortfeasor who was a stranger to the release. Then, in Gore v. Henrotin (1911), 165 Ill. App. 222, the stranger was permitted to show by parol that the parties intended it to be discharged of liability. The same holding was made in Reams v. Janoski (1932), 268 Ill. App. 8, and in Essington v. Parish (7th Cir. 1947), 164 F.2d 725. The Essington court cited Parmelee v. Lawrence (1867), 44 Ill. 405, for the rule that the essential element in determining the meaning of a release was to interpret the language of the instrument considering the circumstances under which it was executed.

The supreme court has never held that the parol evidence rule is not applicable when a stranger to the execution of a release of one of several alleged tortfeasors pleads that release as a defense to a suit by the party granting the release. It recently decided a case where such a release was pleaded in Porter v. Ford Motor Co. (1983), 96 Ill. 2d 190, 449 N.E.2d 827. The common law rule in regard to the release of one such tortfeasor was applicable to the case. The plaintiff requested the court to consider that at the time the release was given, the party obtaining the release was the only defendant in the litigation, and the plaintiff had not then considered suing the stranger, Ford Motor Company, which subsequently pleaded the release. As the release clearly made no reservation of rights against other tortfeasors, the court held that the document should be considered without reference to extrinsic circumstances. The court stated that Parmelee did not require it to do otherwise.

Although the Porter court did not mention the parol evidence rule, its holding is inconsistent with the philosophy of the cases that would have permitted the introduction of parol evidence because Ford Motor Company was a stranger to the release it pleaded. There the court would not consider extrinsic evidence to interpret the release which discharged the defendant seeking to use it only by operation of law. There was no expressed intent on the face of the document to release that defendant. Here the court would not permit use of extrinsic evidence to explain the release which expressly granted release from liability to persons in the category of the various defendants. Use of parol evidence here would only have been for the purpose of varying the expressed intent of the parties. There is even less reason to permit the use of extrinsic evidence to interpret a release, clear on its face, than there was under the modified common law rule in force in Porter. The cited appellate and Federal decisions are not binding on us. We do not follow them. Rather, we follow the rule we deem to have been implied in Porter.

The possible existence of parol evidence to vary the terms of the release in question did not prevent the trial court from properly granting judgments to defendants.

Finally, plaintiff’s contention that the release should not be taken as a release of the medical providers for negligence not discovered when the release was executed is not supported by any indication in the record that any particular act of negligence was discovered after the release. No such discovery is specified in plaintiff’s brief. Nothing in the complaint against the medical providers indicates that the negligence could not have been discovered prior to the execution of the release. The thrust of plaintiff’s argument seems to be that, under the new legislation on contribution, the acts causing the original injury and subsequent conduct aggravating the injury should be treated as giving rise to separate causes of action. We see no reason why this should necessarily follow. If plaintiff’s theory was adopted, the rule that the original tortfeasors are liable for subsequent aggravations of the injury resulting from negligent treatment would be abolished.

We disagree with plaintiff’s contentions.

For the reasons stated, the judgments of the circuit court of Macon County are affirmed.

Affirmed.

WEBBER, P.J., and MILLER, J., concur.