author: Mr. JUSTICE BURMAN

text:
    David Kopel, Plaintiff-Appellant, v. The Board of Education of the City of Chicago, Defendant-Appellee.
    (Nos. 53820-53909 cons.;
    First District
    October 6, 1971.

      Overton, Marks & Schwartz, and James W. Coffey, all of Chicago, (John T. Mehigan, Thomas R. Tyrell, and Richard E. Girard, of counsel,) for appeHee.
   Mr. JUSTICE BURMAN

delivered the opinion of the court:

In this proceeding for declaratory judgment the plaintiff, David Kopel, a teacher employed by the defendant, Board of Education of the City of Chicago (hereafter Board), seeks to recover compensation for consulting services allegedly rendered under a written contract. After a trial without a jury, the Court entered judgment for the Board and the plaintiff appeals.

The Board, at its regular meeting held on February 27, 1957, adopted and approved a contract between the Board and the Illinois Department of Public Education (hereafter Department) for a Co-operative Research Project to be carried out between March 1, 1957, and June 30, 1960. This contract involved the performance of research by the Board in the education of mentaffy handicapped pupils and the transmittal of federal funds to the Board by the Department. A separate agreement was entered into between the Department and the United States Commissioner of Education which included the Board’s proposal for the Cooperative Research Project entitled “How MentaHy Handicapped Children Learn Under Classroom Conditions."

Under the Cooperative Research Project, the Board agreed to make a financial contribution equivalent to $922,800.00 by aHocating salaries of employees and by permitting the use of its educational facilities. The plaintiff was named in the Cooperative Research Project as a major research consultant with a salary of $200.00 per month which was to be paid out of funds received from the Federal Government. The Department agreed to make a financial contribution of $591,186.00 which it would receive from the Federal Government.

Between March, 1957, and June, 1960, the plaintiff was employed on a full time basis by the Board as a certified teacher, working as Director of the Graduate School in the Chicago Teachers’ College. He received a salary as a teacher during this time period, and at no time did he enter into a written contract with the Board under which he would receive additional compensation for services rendered on the Cooperative Research Project.

The plaintiff contends that by the Board approving the contract with the Department at one of its regular meetings, it made him a third party beneficiary of that written contract and that he is entitled to coHect unpaid compensation under that contract. The Board in response contends (1) that it never entered into a contract with the plaintiff for payment of compensation in addition to his regular salary which was paid in fuH, (2) that any such contract with the plaintiff would be void because it along with an appropriation was never authorized or approved at a regularly scheduled meeting of the Board, (3) that the plaintiff was not a third party beneficiary of the contract between it and the Department, and (4) that even if a valid contract existed, any claim would be barred by the statute of limitations.

The dispositive question presented in this appeal involves the applicability of the statute of limitations. In May, 1957, plaintiff sought compensation for his services as consultant to the Co-operative Research Project, and in a letter dated May 8, 1957, Dr. Frances A. MuUen, Assistant Superintendent, in charge of special education, requested approval from Dr. Benjamin C. Willis, the General Superintendent of Schools, for the payment to plaintiff for consulting services.

The plaintiff received the General Superintendent’s reply in a letter dated June 4, 1957, from Dr. Mullen, which read, in part, as follows:

“Dr. Willis has replied to my letter concerning the payment of consultant fees to staff members. Both orally and in writing he had indicated that he would not approve paying additional amounts to regularly employed members of the teaching staff except for time specifically spent on the project on days on which they were not on the school payroll.”

Ten years and five months after the receipt of this letter, the plaintiff filed this suit. The trial court found that the action was barred by the statute of limitations and that the plaintiff failed to prove the performance of services wihin the meaning of the contract between the Board and the Department which would make him a third party beneficiary.

The purpose of the statute of limitations is to prevent the springing up of fraudulent and stale claims after the lapse of great periods of time. (Isham v. Cudlip, 33 Ill.App.2d 254, 179 N.E.2d 25.) An action based on an oral contract must be commenced within five years after the cause of action accrued. (Ill. Rev. Stat. 1967, ch. 83, par. 16) and an action based on a written contract must be commenced within ten years after the cause of action accrued “but if any payment or new promise to pay shall have been made in writing, * * * within or after the said period of 10 years, then an action may be commenced thereon at any time within 10 years after the time of such payment or promise to pay.” Ill. Rev. Stat. 1967, ch. 83, par. 17.

The plaintiff argues (1) that this action is based upon a written contract and governed by the ten year statute of limitation and (2) that his cause of action did not accrue until the Cooperative Research Project was completed in June 30, 1960, since he continued to work on the project and since in a letter dated June 24, 1957, he specifically refused to accept the Board’s repudiation of the contract.

We shall assume, solely for the purposes of argument, that the plaintiff was a third party beneficiary of the written contract between the Board and the Department; however, even if these assumptions are made, this action filed in November, 1967, would be barred because the contract was breached and the plaintiff’s cause of action accrued in June, 1957, when the General Superintendent refused to authorize payment for his services. At that time, the plaintiff knew or should have known that the Board would not give him additional compensation for services on the project rendered during the normal horns of his employment. The fact that the plaintiff did not accept the repudiation of his claim by the General Superintendent is not significant because after June, 1957, the plaintiff knew that his services on the project, performed during the school day, were rendered in his capacity as a teacher regularly employed by the Board.

The plaintiff contends additionally that even if his cause of action accrued as of the date of Dr. Mullen’s letter to him, the time within which he could bring the action was extended when the Board on June 26, 1958, made a $25.00 payment for services rendered to the project. The plaintiff’s regular working hours were approximately 9:00 A.M. to 3:30 P.M. On Wednesday, May 28, 1958, he attended a two-hour consultation with members of the project’s staff which lasted from 4:00 P.M. to 6:00 P.M. He submitted a voucher and was compensated for the additional time spent at the meeting. This payment was at most further evidence of the Board’s policy of giving the plaintiff additional compensation only for services rendered after his regular working hours. Our conclusion that plaintiff’s claim is barred by the statute of limitations makes it unnecessary to consider other issues which were raised by the Board.

For the reasons set forth above, the judgment of the circuit court is affirmed.

Judgment affirmed.

ADESKO, P. J., and DIERINGER, J., concur.


source: Caselaw Access Project

author: Mr. JUSTICE GOLDBERG

license: Public Domain

text:
    Consumers Construction Company, Plaintiff-Appellant, v. The County of Cook, Defendant-Appellee.
    (No. 54748;
    First District
    October 4, 1971.

      Lewis W. Schlifkin and Edward A. Berman, of Chicago, for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Daniel P. Coman and John J. Henely, Assistant State’s Attorneys, of counsel,) for appellee.
   Mr. JUSTICE GOLDBERG

delivered the opinion of the court:

Consumers Construction Company (plaintiff) brought this action for damages based upon a written building contract with the County of Cook, a municipal corporation (defendant). The case was heard without a jury. At the close of all the evidence, the trial judge entered a finding and judgment for defendant. Plaintiff appeals.

The basic question raised by plaintiff is whether a cause of action exists in favor of a contractor in a public building contract for delays allegedly caused by defendant as owner. As a subsidiary contention, plaintiff claims that the trial judge erred in excluding competent evidence. Defendant contends that the provisions in the contract governing time of performance are exclusively for the benefit of defendant as owner and that the rulings of the court on evidentiary questions were proper. A factual statement is required. We will attempt to distinguish between agreed and controverted facts.

Defendant solicited bids for a written contract for additions and alterations to Cook County Children’s Hospital in the City of Chicago. Thereafter, and on January 15, 1962, the parties entered into a brief written contract. This agreement incorporated therein by reference the advertisement of defendant for bids, the proposal made by plaintiff, the detailed specifications prepared by defendant prior to the taking of bids, all drawings and all other documents on file in the office of the purchasing agent of defendant. The total contract price was fixed at $531,900. The work was to be completed within 210 calendar days from execution of the contract. It was specified that time was of the essence of the contract. The specifications in question are a massive document containing hundreds of pages. It is unnecessary to attempt to summarize all of the detailed provisions. We shall later point out certain essential particulars contained in this document.

Prior to the signing of the contract, defendant issued certain addenda which revised the specifications. The first addendum, dated December 7, 1961, set up a schedule of the various phases in completion of the job. Plaintiff examined all of these matters and the site itself prior to execution of the contract. Plaintiff was familiar with the first addendum when it entered its bid on the job. On January 29, 1962, a meeting at the job site was held between representatives of plaintiff and the architect for defendant. At that time, the architect was furnished with time schedules reflecting completion within the specified time limit and with an outline of the order in which the work was to be accomplished. No exception was ever taken by the architects to these matters.

It is agreed that, as the work progressed, various extras were requested by defendant or its representatives. It is also agreed that this extra work took up approximately 473 days; more than double the originally agreed time for the total work. Defendant paid for these extras in full in addition to the original contract price. In each case, these extras were approved by the purchasing agent of defendant as provided in the specifications. These extras have no bearing upon plaintiff’s claim for damages. It is also agreed that the contract price was paid in full. It is undisputed that plaintiff did not complete the construction work until 972 days after signing of the contract. After deducting days expended on the extra work, calculation shows additional delays of 289 days.

The basic factual disagreement between these parties is whether these delays were caused by defendant. Defendant takes the position that, “* * * the record is barren of any direct evidence which would substantiate * * *” the contention that delays were caused by defendant or its architect. Plaintiff takes the position that it produced ample evidence to justify its contention of culpability of defendant but was prevented from doing so by erroneous rulings of the trial court. We will first attempt to resolve this conflict.

Plaintiff offered in evidence a large number of daily progress reports in an attempt to prove that the delays were caused by defendant. The contract between the parties provided that plaintiff was to prepare written progress reports every day, copies of which were to be delivered to the architect. (Specifications, Division 2, page 119, par. 130B.) The evidence is uncontradicted that plaintiff’s superintendent prepared and gave copies of these reports to the architect every day in compliance with the contract. The reports were personally delivered to the architect’s office. Notice to produce these reports was served upon defendant and the retained copies in the possession of plaintiff were offered in evidence. The trial court sustained objection by defendant to these exhibits and rejected them. The theory of the court apparently was that the architect was not a general agent of defendant and had no right to modify the written agreement between the parties.

In our opinion, this ruling was erroneous. The issues of modification of the contract or general authority of the architect have no materiality here. The written contract between the parties specificaUy made provision for the preparation of these exhibits by plaintiff and for delivery of them to the architect. This made the architect the agent of defendant for the purpose of receiving the progress reports which were essential to discharge of the architect’s duties and proper supervision of the project. Moreover, the basic modem approach to competency of evidence starts from the premise that all evidence is competent until the reverse be shown. The proof shows that these documents were kept in the ordinary course of business in performance of the contract. They were made pursuant to a specific requirement of the contract. This qualified them for admission as business records within the scope of Rule 236 of die Supreme Court of Illinois. (43 Ill.2d Rule 236(a).) The progress of the law of evidence from the early portion of the 17th century to this enlightened rule is set forth in die Committee comments pertaining to the mle.

This exclusionary ruling by the trial court deprived plaintiff of a fair opportunity of proving the factual essence of its claim; namely, that the delays were caused by defendant. For this reason, we are obfiged to reverse the judgment and to remand the cause for a new trial so that the trial court can examine properly the reasons for the admitted delays. It is unnecessary for us to consider additional arguments advanced by plaintiff concerning other rulings by the trial court on evidence offered. As a guide to counsel and the court in future proceedings, we will state our opinion with reference to the legal issues raised in this appeal.

A question first arises regarding the written agreement. As above pointed out, the contract document signed by the parties stated, “work to be completed within 210 calendar days from date of signing of contract.” The agreement also provided, “* * * that time shaH be of tire essence of this contract * * At the trial and in its brief here, defendant contends that provisions in a building contract requiring completion of the subject matter of the contract within a specified time are for the sole benefit of the owner and consequently may not be depended upon or used by plaintiff for any purpose whatsoever. The trial court agreed with this contention and therefore concluded that the lengthy delays in completion of the contract gave plaintiff no right to recover damages even if these delays were caused solely by the agents of the defendant or by third parties.

The only authority which lends credence to the major premise upon which this conclusion is based is Adam Groth & Co. v. Goss & Guise, 232 Ill.App. 450, decided by this court in 1924. That case involved a suit by a general contractor against a subcontractor in connection with school district construction. The contract provided for substantial completion “within 140 working days * * * Sundays and holidays excepted.”

There were various delays and defendant refused to perform the subcontract on the ground that 140 working days had then elapsed. Concerning the time limitation, this court stated (232 Ill.App. 450 at 454):

“Furthermore, this provision was for the benefit of the owner and architect and could be waived by them as it is claimed was done in this case.”

The court held that it was erroneous to direct a verdict in favor of the subcontractor and the case was remanded for another trial. We cannot regard Adam Groth & Co. as authority which supports the sweeping generalization advanced by defendant. The statement of the court must be considered in its application to the specific facts in the case. There, the reason for the delay was a work stoppage necessitated by freezing weather. The facts in the case at bar are completely different. Plaintiff here claims that inordinate delays which were costly and unfair to plaintiff were caused by conduct of defendant as owner. A generalization such as that advanced by plaintiff cannot be applied inflexibly to every case. All of the language in every contract represents the intention of both parties as solemnly reduced to writing. Each word of every written contract must be deemed applicable to both parties and must be carefully considered to arrive at a just and equitable result. The issue here is not the narrow one as to which party is to benefit by any particular language in the agreement. The issue presented by the pleadings in this case is whether the delays were caused by the defendant and its agents with no fault on the part of plaintiff; and, if so, to what extent plaintiff was damaged as a natural and proximate result of these delays.

Furthermore, the issue of determination of the party for whose benefit the time limitation was included in the contract actually bears no relationship to the legal basis of plaintiff’s claim. In the case at bar, the lengthy specifications provide that the right of the plaintiff as contractor to proceed shall not terminate because of any delays in the completion of tire work due to unforeseeable causes beyond the control and without default or negligence of the plaintiff. (Specifications page 123, par. 139B.) This gave plaintiff as contractor the option of continuing the work despite delays beyond his control.

Plaintiff takes the position that by necessary implication, arising from the very situation of the parties, it was the duty of defendant as owner to take reasonable steps to avoid frustration of plaintiffs efforts by lengthy delays for which plaintiff had no responsibility. This contention is strongly supported by cases decided in this and other jurisdictions.

In W. H. Stubbings Co. v. World's Columbian Exposition Co., 110 Ill.App. 210, the contractor, as plaintiff, claimed that the buildings in question were not made ready by the owner for performance of the contract within the specified time. This court held that propriety of an allowance of damages for such delay should be recognized. The court cited Tobey v. Price, 75 Ill. 645, as authority for this statement. The court, therefore, reversed a jury verdict in favor of the owner. It is true, as pointed out by defendant in its brief, that a part of the controversy in Stubbings revolved about a claim for extras. However, the balance of the opinion, as above shown, supports plaintiff’s theory.

Plaintiff’s position is further bolstered by Underground Construction Co. v. Sanitary District of Chicago, 367 Ill. 360. Defendant seeks to differentiate this decision on the theory that the contract there involved an express stipulation making the defendant as owner liable for any negligence or omission of duty. We do not find such a provision in the contract stated in the opinion of the court. In these public works cases, the contracts and specifications are generally of great length so that it is often difficult to tell from an opinion by the court precisely what provisions are included in the contract documents. In our opinion, it is clear from a fair reading of this decision that the Supreme Court meant to and did declare that damages for delay caused by the owner might be recovered by the contractor. The conclusion by the Supreme Court is that where delays by the owner cause damage to the contractor by way of increasing his cost of performance, he may have an action against the owner.

We also note the citation with approval by our Supreme Court of the case of State v. Feigle (Ind.App. 1928), 162 N.E. 55, affd 204 Ind. 438, 178 N.E. 435. In that case, the court pointed out that the owner has an equitable duty of furnishing the contractor with a proper place to perform the work and that the owner may be liable in damages for losses occasioned by this breach.

In North Shore Sewer & Water, Inc. v. Corbetta Construction Co. (7th Cir. 1968), 395 F.2d 145, not cited by either party, the Court of Appeals held that an owner was liable to a contractor and a subcontractor for damages caused by failure to remedy leakage in a sewer under its control which increased time of completion of the work from three to seven months. The Court of Appeals held that, # where a land-

owner has either actively created or passively permitted to continue a condition over which he has control which renders performance of the contract more difficult or expensive, he has breached an implied contractual duty for which he must respond in damages.” 395 F.2d 145 at 151. The court went on to quote from Corbin on Contracts (1960), section 571:

“In any kind of contract, if the right of one party to compensation is conditional upon the rendition of some service or other performance by him or on his behalf, it is nearly always a breach of contract for the other party to act so as to prevent or to hinder and delay or to make more expensive the performance of the conditions.” 395 F.2d 145 at 151.

The Court of Appeals affirmed the District Court ruling against the owner but remanded the case for a proper determination of damages.

Based upon these authorities, we hold that in a public works contract such as involved in the case at bar, where material delays arise without fault or culpability of the contractor, he may at his option either terminate the work or complete performance of his contract. In addition, we hold that where the owner bears responsibility for the delay, the contractor has an action against the owner for such damages as reasonably and proximately resulted from the delay; subject to the applicable provisions of the contract.

One and perhaps two caveats must be noted here. First, we do not imply in any manner by this opinion that plaintiff is entitled to judgment. We certainly express no opinion as to the amount of damages, if any, to which plaintiff may be entitled. These issues are completely open for the trier of fact so that a correct determination may be made as to whether the delays in question were actually caused by the defendant and its agents as alleged in plaintiffs complaint. If the question of damages is to be considered, the amount of such damages must be fixed with due regard for the provisions of the contract between the parties, including the lengthy specifications and all other contract documents. We note the clear language of the Supreme Court of Illinois in Underground Construction Co. v. Sanitary District of Chicago, 367 Ill. 360, 371. The court points out that damages in public contract cases must be determined in accordance with the specific provisions of the written agreement. The court stated (367 Ill. 360 at 371):

“This is the contract of the parties, and, however strongly we might feel that plaintiff has been more severely damaged, this court can declare the rights of the parties only by the contract, as the language of that instrument dictates.”

A portion of the trial record here is devoted to the issue of increased labor costs to plaintiff, allegedly resulting from delays in performance. The lengthy specifications, which form a part of the contract between the parties, provide that if the plaintiff found it necessary

“* * * to exceed the prevailing salary or wage rates specified in his contract, any expense incurred by the contractor or subcontractors because of the payment of salaries or wages in excess of such amounts shall not be cause of any increase in the amount payable under this contract. The owner shall not consider or allow any claim for additional compensation made by the contractor or subcontractors because of such payments.” Specifications, page 112, par. 121D.

In our opinion, the trial court should determine whether this language eliminates amounts of wage increases due to passage of time, if any are claimed, as an element of damages.

Additionally, the remodeling work done by plaintiff was performed in a childrens hospital. At the time, the building was occupied by sick patients. This created problems with reference to dust and noise. The building was located in a congested area of the City of Chicago with facilities for entrance of ambulances. This created a problem in connection with delivery of materials. The trial court should determine whether delays were caused by these circumstances. These matters were inherent in the nature and location of the site of the work and it was the duty of plaintiff as the contractor to examine these situations and to reflect their existence in its bid upon the job. The detailed specifications directly called the attention of the contractor to the fact that the building would remain in use during construction and the work was required to be performed in a manner that would cause a minimum of disturbance and interference to the occupants. (Specifications, Division 2, page 201, par. 203A, B; also Division 3, page 301, par. 304A, C.) It will be the duty of the trial court upon a retrial of this case carefully to segregate and eliminate any claimed damages caused by or flowing from these conditions.

We, therefore, reverse the judgment appealed from and remand the cause to the Circuit Court of Cook County with directions to proceed herein in a manner not inconsistent with this opinion.

Judgment reversed, cause remanded.

BURKE, P. J., and LYONS, J., concur.


author: Mr. PRESIDING JUSTICE BURKE.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Ezell Sawyer, Defendant-Appellant.
    (No. 54537;
    First District
    October 4, 1971.
    Gerald W. Getty, Public Defender, of Chicago, (Lee T. Hettinger, James N. Gramenos, and James J. Doherty, of Defender Project, of counsel,) for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Robert A. Novelle and James Stemik, Assistant State’s Attorneys, of counsel,) for the People.
   Opinion by

Mr. PRESIDING JUSTICE BURKE.


author: Mr. PRESIDING JUSTICE BURMAN

text:
    Sam Serpe, Plaintiff-Appellee, v. Yellow Cab Company et al., Defendants-Appellants.
    (No. 56075;
    First District (4th Division)
    January 31, 1973.

      Jesmer and Harris, of Chicago, (Julius Jesmer, Robert D. Jesmer, and Morton A. Kier, of counsel,) for appellants.
    Clausen, Hirsh, Miller & Gorman, of Chicago, (James T. Ferrini and Donald C. Potter, of counsel,) for appellee.
   Mr. PRESIDING JUSTICE BURMAN

delivered the opinion of the court:

This is an appeal from an order of the Circuit Comt of Cook County striking the defendant Yellow Cab Company’s answer for failure to produce its employee for a deposition pursuant to court order and from a default judgment entered in favor of the plaintiff against both defendants. The plaintiff, Sam Serpe, filed a complaint seeking to recover damages resulting from a collision between his automobile and a taxicab driven by the defendant, Francisco Quinones and owned by the defendant Yellow Cab Company. Each defendant filed an answer to the complaint. The collision was witnessed by Juan Garcia, who at the time was employed by Yellow Cab as a driver, but was not on duty and was driving his own automobile and engaged in personal business. The plaintiff served a notice upon Yellow Cab pursuant to Illinois Supreme Court Rule 204 to produce Garcia, its employee, at a deposition to be held on March 26, 1969. Garcia did not attend the deposition, and the plaintiff filed a motion to strike Yellow Cab’s answer because of its failure to produce Garcia.

Yellow Cab filed an affidavit in opposition to this motion in which it admitted that Garcia was a witness to the accident and was its employee both at the time of the accident and at the time of the motion, but stated that, in its belief, Supreme Court Rule 204 “does not encompass the production of a witness who was not in the course or scope of his employment for the taking of his discovery deposition without first serving a subpoena with the appropriate witness fee.” On May 12, 1969, Yellow Cab filed an amended affidavit in which it stated its belief that it did not have control over Garcia with respect to events occurring outside of his employment. A hearing was had on the motion and an order entered that Garcia appear for deposition within 28 days.

Garcia did not appear at the second deposition, which was scheduled on June 10, 1969, and the plaintiff filed a second motion to strike Yellow Cab’s answer. Yellow Cab filed a written objection to this motion, to which it attached a letter from its attorneys informing it of the court’s order of May 12 and a reply in which its president stated that Garcia had been informed of tire deposition and had refused to attend and that under the terms of Yellow Cab’s labor contract it could not invoke any sanctions against Garcia to compel his attendance. On June 23, 1969, the court entered an order striking Yellow Cab’s answer and setting tire case for a prove-up.

On June 2, 1970, a jury was empaneled and the plaintiff presented evidence as to his damages only. The jury returned a verdict for the plaintiff in the amount of $1,205.44, and judgment was entered on the verdict against both defendants. A timely post trial motion filed by tire defendants was denied and this appeal followed. In his brief, the plaintiff confesses error as to the judgment entered against Francisco Quinones. We are, therefore, only concerned with the appeal of Yellow Cab.

On appeal Yellow Cab contends that the trial court exceeded its authority in ordering Garcia to attend the deposition, that the trial court erred in punishing it for the recalcitrance of Garcia, that the order striking its answer was an excessive and inappropriate sanction and that the verdict against both defendants was void because no evidence was presented as to liability. In our view, we need consider only the third contention, that the order striking Yellow Cab’s answer was an inappropriate sanction.

The trial court’s order of May 12, 1969, that Garcia appear for deposition within 28 days, was entered pursuant to Illinois Supreme Court Rule 204 (Ill. Rev. Stat. 1971, ch. 110A, par. 204), Rule 204 provides in relevant part:

“Service of notice of the taking of the deposition of a party or person who is currently an officer, director, or employee of a party is sufficient to require the appearance of the deponent and the production of any documents or tangible things listed in the notice.”

In the event of unreasonable noncompliance with Rule 204 or an order entered under it, Illinois Supreme Court Rule 219 (Ill. Rev. Stat. 1971, ch. 110A, par. 219) provides a variety of sanctions which the court may levy against the offending party. Among these are the striking of its pleadings, and where appropriate, the entry of judgment. The sanction to be imposed rests largely within the sound discretion of the trial court. (Garofalo v. General Motors Corp., 103 Ill.App.2d 389.) Thus the question presented to this court is whether the trial court abused its discretion in striking Yellow Cab’s answer and entering a default judgment against it.

The outer limits of the court’s discretion in cases such as the one presently before us are defined by both Illinois Supreme Court Rule 219 and by the decisions which have considered its application. Rule 219 provides in part:

“If a party * # * unreasonably refuses to comply with any provision of Rules 201 through 218, or fails to comply with any order entered under these rules, the court, on motion, may enter, in addition to remedies elsewhere specifically provided, such orders as are just ” #

From the language of the rule itself the sanctions are to be imposed only when the noncompliance is unreasonable, and the order entered must be “just”.

In People ex rel. General Motors Corp. v. Bua, 37 Ill.2d 180, our Supreme Court considered at length the scope of the court’s discretion both in entering discovery orders and in enforcing them. It stated that the purpose of Rule 219 is to further discovery and that while the court may impose such sanctions as are necessary to accomplish discovery, it may not impose sanctions which are intended primarily as punishment.

Applying these principles to the present case, we believe that the trial court abused its discretion in striking Yellow Cab’s answer.

For the sanctions enumerated in Rule 219 to be applied there must be an unreasonable noncompliance. Our research indicates that unreasonable noncompliance has not been defined by our courts, but we believe that a definition can be inferred from the decisions in which the striking of a party’s pleadings has been held proper. In virtually all such cases the conduct of the offending party seems to have been characterized by a deliberate and pronounced disregard for the rule or order not complied with. (See In re Atwood’s Estate, 97 Ill.App.2d 311; Kocis v. Kocis, 47 Ill.App.2d 68; Coutrakon v. Distenfield, 21 Ill.App.2d 146; Sager Glove Corp. v. Continental Casualty Co., 19 Ill.App.2d 568.) Adopting such conduct as the standard, we conclude that Yellow Cab’s failure to produce Garcia as ordered was not unreasonable. The letters attached to its objection to the plaintiff’s June 10, 1969 motion to strike its answer establish that it informed Garcia of the court’s order. Garcia refused to attend, and Yellow Cab could not discharge him because of his refusal. Indeed, even if Yellow Cab could have discharged Garcia, this is the most that it could have done. Therefore Yellow Cab did everything possible within the constraints of its labor contract to insure compliance.

Furthermore, we believe it apparent from the foregoing that the order striking Yellow Cab’s answer could not have accomplished the discovery sought by the plaintiff, as Yellow Cab had taken all reasonable steps to obtain Garcia’s attendance at the deposition. Rule 219 provides that the court may enter any order that is just. As indicated in Gillespie v. Norfolk and Western Ry., 103 Ill.App.2d 449, a just order is one which, to the degree possible, insures both discovery and trial on the merits. In the present case the order striking Yellow Cab’s answer precluded a trial on the merits and did nothing to further discovery. Under tírese circumstances it was an inappropriate sanction. Without commenting on what an appropriate order might have been, we note from the record that the plaintiff never attempted to serve Garcia with a subpoena and that the letter from Yellow Cab’s president to its attorneys indicates that Garcia would have attended the deposition had he been served.

For these reasons the order striking Yellow Cab’s answer and the judgments against the Yellow Cab Company and Francisco Quinones are reversed.

Reversed.

ADESKO and DIERINGER, JJ., concur.


author: Mr. PRESIDING JUSTICE BURMAN.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Eugene Woods, Defendant-Appellant.
    (No. 57074;
    First District (4th Division)
    January 31, 1973.
    Gerald W. Getty, Public Defender, of Chicago, (Fred Shandling and James J. Doherty, Assistant Public Defenders, of counsel,) for appellant.
    William J. Scott, Attorney General, of Springfield, and Edward V. Hanrahan, State’s Attorney, of Chicago, (James B. Zagel, Assistant Attorney General and Robert A. Novelle and Terence J. Mahoney, Assistant State’s Attorneys, of counsel,) for the People.
   Opinion by

Mr. PRESIDING JUSTICE BURMAN.


text:
    Romy Hammes, Plaintiff-Appellee, v. Angelo Esposito, Defendants-Appellants—(Leo Agoranos et al., Intervenors-Appellants, v. Romy Hammes et al., Defendants-Appellees.)
    (No. 57098;
    First District (4th Division)
    January 31, 1973.

      Ash, Anos and Harris, of Chicago, (George J. Anos and Lawrence M. Freedman, of counsel,) for intervening-appellants Leo Agoranos et al.

    Peterson, Ross, Rail, Barber & Seidel, of Chicago, (Gerhard E. Seidel, John G. Campbell, and John W. McCullough, of counsel,) for appellees.
   Mr. PRESIDING JUSTICE BURMAN

delivered the opinion of the court:

This appeal arises out of an action in ejectment. The plaintiff, Romy Hammes, filed a complaint in the Circuit Court of Cook County in which he sought to enforce against the defendants, Angelo Esposito, Suburban Trust & Savings Bank and Everett Lewy, a right of reentry under the terms of an assignment to the defendants of a long term lease. The interveners, Leo and Perry Agoranos, with leave of court, filed a petition in which they asserted that a certain judgment lien in their favor and against the defendant, Angelo Esposito, with respect to the subject property was superior to the interests' of both the plaintiff and defendant. Both plaintiff and defendant filed answers to the intervening petition. Plaintiff also filed a motion requesting that the court determine the priority of his interest. After hearing argument the court found that the interest sought to be enforced by the plaintiff was superior to that asserted by the intervenors and that the plaintiff and defendant could compromise the ejectment action free from any lien asserted by the intervenors. An order to this effect was entered, and the ■ intervenors appealed.

On appeal the intervenors contend first, that the language of plaintiff’s assignment does not create a right of reentry, but merely an action for breach of covenant; second, that even if the assignment does create a right of reentry, such an interest is void in the circumstances of the present case and third that in any event the interest of the plaintiff cannot be asserted to forfeit the interest of the intervenors.

The facts as they pertain to this appeal are as follows: The property which is the subject of the controversy is that, commonly known as, 120 South State Street, Chicago. On April 28, 1902, John Traynor, the fee owner, executed and delivered to the Empire State Cloak and Suit Company a leasehold in the property for a period of 99 years. Empire State’s successor in interest assigned this leasehold to the Singer Sewing Machine Company on November 7, 1904, and Singer assigned the balance of the lease to Romy Hammes, the plaintiff, on November 28, 1955. Under the terms of the assignment the plaintiff agreed, among other things, to pay the annual ground rent to the fee owners and to indemnify Singer against any damages resulting from the failure of the plaintiff or his assigns to perform certain covenants in the lease.

On December 23, 1965, the plaintiff executed an assignment of the lease to the First Church of the Nazarene of Chicago, and it is under the terms of this assignment that he claims his right of reentry. The assignment provides in relevant part:

“6. The gift herein made by the Donor [Romy Hammes] to the Donee [the Nazarene Church] is of a substantial and valuable Leasehold interest and the Donee in assuming the obligations of ownership of said Leasehold has expressly agreed to be bound by and to keep, observe and perform all of the requirements contained in Paragraphs 4 and 5 hereof, and further agreed with the Donor that if default shall be made by the Donee in the payment of any installment of rent when due as in said Lease provided or if the Donee shall fail to pay any assessment or any taxes lawfully levied, assessed or charged against the demised premises or which might become a lien upon said premises or improvements thereon, or if the Donee shall default in the performance of any of the terms or provisions of said Lease or of this Assignment, and any such default shall continue unremedied for a period of Fifteen (15) days in the case of a rent default or of Sixty (60) days in the case of any other default, after the Donee first knows of, or is notified concerning, the default, or if the Donee (or in the event of a transfer of the Donee’s interests in said Lease or the premises, then if the transferee or transferees, or any thereof, or any of the heirs, successors, legal representatives and assigns thereof having any interest in this Lease or the premises) shall become bankrupt * * * or shall make an Assignment for the benefit of creditors, or if a receiver thereof, in equity, bankruptcy, or under any provisions of any State or United States law or otherwise, be appointed, voluntarily or involuntarily, or if the Donee shall abandon the premises, then, and in any of such events, the Donor, at his election, shall have the right to declare this transfer and Assignment ended and thereupon may re-enter said premises and take full and complete possession thereof and of the improvements upon the demised premises, with or without process of law, free on any interest of the Donee therein; and that in such event the Donor shall have the full right of possession of said premises free of any right or interest of any and all subtenants and of the rights or interests of any Leasehold Mortgagee or Lienor.
# e #
9. All of the provisions, obligations, agreements, covenants and conditions herein contained shall inure to the benefit of and be binding upon the heirs, legal representatives, successors and assigns of the parties hereto.” (Emphasis added.)

On October 30, 1967, the Nazarene Church assigned its interests to Jarrell W. Gunstream. The assignment to Gunstream contained provisions identical to those set forth above and, in addition, contained a provision obligating Gunstream to assume possession subject to the terms of the assignment from the plaintiff to the Nazarene Church. On April 30, 1969, Gunstream assigned his interest to Angelo Esposito, one of the defendants. This assignment subjected Esposito to all of the provisions of the October 30, 1967 assignment from the Nazarene Church to Gunstream.

Concurrently with the execution of the last assignment, the plaintiff, the Singer Company, Gunstream and Esposito executed a document entitled “Agreement and Consent” under the terms of which Esposito assumed the obligations of Gunstream, which were contained in the plaintiff’ s assignment to the Nazarene Church and assumed by Gunstream in the October 30, 1967, assignment to him. The agreement further provided that “[njothing herein shall diminish Singer’s rights and privileges under the Singer-Hammes assignment” and that:

“The Singer Company does not by the execution of the within Agreement and Consent release Romy Hammes from any of his liabilities and obligations to said The Singer Company, all of which will continue in full force and effect.”

The plaintiff filed his action in ejectment against Esposito on October 28, 1970, alleging failure to pay the ground rent due the fee owners, failure to pay the real estate taxes levied upon the property and failure to keep the property free from mechanic’s liens. The intervenors asserted their interest in the property by virtue of a judgment against Esposito obtained March 7, 1966, in the Circuit Court of Cook County and duly filed with the Cook County Recorder of Deeds.

The intervenors’ first contention is that with respect to Esposito the language of the Hammes-N azarene Church assignment does not create a power of termination and right of reentry, but an action for breach of covenant. They note that the phrase, “or in the event of a transfer of the Donee’s interest in said Lease or in the premises, then, if the transferee or transferees, or any thereof, or any of the heirs, successors, legal representatives and assigns thereof, having any interest in this lease or the premises,” appears after the word “Donee” only in the section dealing with insolvency and bankruptcy and argue that therefore the right of reentry as to transferees of the Nazarene Church is limited to such situations. As a corollary to this argument they assert that the use of the word “Donee” alone in those sections dealing with failure to pay rent and taxes and to keep the property free from mechanic’s liens, is meant to limit the right of reentry for failure to perform these obligations to defaults by the Nazarene Church only and not to extend it to defaults by Nazarene’s transferees.

We do not agree that the language creates so limited a right. It is a fundamental rule of construction that a document must be considered as a whole and that the intent of its drafters cannot be ascertained from isolated phrases. (Martindell v. Lake Shore National Bank, 15 Ill.2d 272.) Viewing the Hammes-N azarene assignment as a whole we are satisfied that the document is meant to preserve a power of termination and right of reentry as to the transferees of Nazarene in the event of any default of the obligations set forth in the lease or the assignment. In this regard, we believe it significant that paragraph 6 of the assignment, wherein the obligations of the assignee are set forth, provides that “in any of such events, the Donor [Hammes], at his election, shall have the right to declare this transfer and assignment ended and thereupon may reenter said premises * * In addition, paragraph 9 provides' that all of the provisions of the assignment shall inure to the benefit of and be binding on the successors and assigns of the parties thereto.

We also regal’d it as significant that, even if we were to adopt the view urged by the intervenors, the subsequent agreements entered into by the transferees of the Nazarene Church are sufficient to place Esposito in the same position vis-a-vis Hammes as the Nazarene Church. In the Nazarene-Gunstream assignment Gunstream specifically took possession subject to the terms of the Hammes-Nazarene assignment. The Gun-stream-Esposito assignment subjected Esposito to the provisions of the Nazarene-Gunstream assignment, and the “Agreement and Consent” executed contemporaneously provided that Esposito should assume Gun-stream’s obligations under the Nazarene-Gunstream assignment. Thus it is apparent that even if the right of reentry stated in the HammesNazarene assignment was meant to be limited to defaults of Nazarene, Esposito acceded to Nazarene’s position through the agreements set forth above and stood in the same position with respect to Hammes.

The intervenors also argue that if the Hammes-Nazarene assignment is ambiguous as to whether it creates a right of reentry or merely an action for breach of covenant, well established rules of construction require that such ambiguity be resolved in favor of an action for breach of covenant. As we have concluded that the document, read as a whole, is not ambiguous and clearly creates a right of reentry, therefore, we need not consider this argument. Were we to consider it, we would point out that the rule to which tire intervenors refer has generally found its application in cases where the language of the instrument does not specifically mention a right of reentry. (See Newton v. Village of Glen Ellyn, 374 Ill. 50; Dodd v. Rotterman, 330 Ill. 362.) In cases such as the one presently before us where the instrument specifically grants a right of reentry, referring to it in those terms, our courts have uniformly held that this removes all doubt as to the nature of the interest created. (Koch v. Streuter, 232 Ill. 594; Druecker v. McLaughlin, 235 Ill. 367.) We hold therefore that the Hammes-Nazarene assignment, read in its entirety and taken together with the subsequent assignments, created a power of termination and a right of reentry in the plaintiff as against Angelo Esposito.

Having thus concluded, we turn to the intervenors’ contention that even if the plaintiff retained a power of termination and right of reentry the interest is void in the circumstances of fire present case. The intervenors argue that when the plaintiff assigned the leasehold to the Nazarene Church he assigned away all of his rights and obligations in it, retaining only what the intervenors characterize as a “naked power of termination”. They point out that the present case is unlike those in which the holder of the power of termination and right of reentry is also the holder of the reversion in fee, since the reversion in fee is in the heirs of Traynor, and therefore that the plaintiff has no interest in the property upon which to base his right of reentry.

The record does not support this argument. It is, of course, undisputed that the reversion in fee in tire subject property is in the heirs of Traynor. It is equally clear, however, that Hammes remained obligated to Singer for the performance of the covenants in the lease even after its assignment to the Nazareno Church. In the original assignment from Singer to the plaintiff the plaintiff obligated himself to indemnify Singer against damages resulting from the failure of himself or his assigns to perform the covenants in the lease. When he executed the “Agreement and Consent” at the time of the Gunstream-Esposito assignment he expressly reaffirmed his obligation to Singer, indicating that it was contemplated by all parties concerned that he should continue to be responsible to Singer for the performance of the lease. In the event of the default of one of the assignees, the plaintiff would have been liable to Singer for the resulting damage. His only means of protecting himself from potential liability to Singer in such an event was the power of termination and right of reentry, by which he could perform the obligations himself if circumstances so required. For this reason we believe that he had more than a naked power of termination and that nothing in the public policy of Illinois requires that his interest be deemed void. .

The intervenors’ final contention is that the plaintiff’s power of termination with respect to Esposito cannot be exercised in such a way as to forfeit their interest in the property. In this regard, it is well established in Illinois that the lien of a judgment creditor attaches only to the interest of the judgment debtor, and that if such interest is extinguished by the happening of some condition, the lien is likewise extinguished. (Sparrow v. Wilcox, 272 Ill. 632.) In the present case the interest acquired by Esposito was subject to the plaintiff’s power of termination and right of reentry. Thus the lien of the intervenors as judgment creditors was subject to the plaintiff’s interest as well. With this in mind, we believe that the trial court was correct in concluding that the interest of the intervenors was inferior to that of the plaintiff and that the plaintiff and Esposito could compromise the ejectment action free from the lien of the intervenors’ judgment.

For the foregoing reasons the judgment of the trial court is affirmed.

Affirmed.

ADESKO and DIERINGER, JJ., concur.


text:
    Nationwide Commercial Company, Plaintiff-Appellant, v. Gerald T. Knox et al., Defendants-Appellees.
    (No. 57440;
    First District (4th Division)
    January 31, 1973.
    Roy J. Solfisburg, Jr., and Noel C. Davis, both of Aurora, for appellant.
    Mayer, Brown & Platt, of Chicago, (Franklin P. Auwarter and Richard Lawrence, of counsel,) for appellees.
   Mr. PRESIDING JUSTICE BURMAN

delivered the opinion of the court:

This is an appeal by plaintiff from an order vacating and setting aside a judgment by confession entered against the defendants. Said judgment was vacated on the grounds that the court lacked jurisdiction over the defendants in that the contract sued on was not executed in Cook County as required by Illinois Revised Statutes, 1971, Chapter 110, Section 50(3).

The statute involved recites the following:

“Any person for a debt bona fide due may confess judgment by himself or attorney duly authorized, without process. The application to confess judgment shall be made in the county in which the note or obligation was executed or in the county in which one or more of the defendants reside or in any county in which is located any property, real or personal, owned by any one or more of the defendants. A judgment entered by any court in any county other than those herein specified has no force or validity, anything in the power to confess to the contrary notwithstanding.”

On November 19, 1971, a judgment by confession was entered against the defendants in the Circuit Court of Cook County in the amount of $48,057.38. Defendants entered their special appearance and filed a motion in the trial court to vacate the judgment on the grounds that the contract was not executed in Cook County. The motion was supported by an affidavit.

In support of their motion, the defendants alleged that they contracted to buy certain equipment from A to Z Rental, a corporation doing business in Chicago, Illinois, under an installment contract and securities agreement which was mailed to them at their home in Elyria, Ohio. They signed the agreement and delivered it to A and Z Rental by placing it in the mail in Elyria, Ohio. The defendants alleged further that they owned no property and did no business in Cook County, and never resided there. The interest of the seller, A to Z Rental, Inc., in the contract was subsequently conveyed to Nationwide Commercial Company, plaintiff herein. The terms and conditions of that assignment are immaterial and of no significance for purposes of this appeal.

In opposition to defendants’ motion to vacate, an affidavit was filed by Donald Dix, Treasurer of A to Z Rental, alleging that the place of business of A to Z Rental was located at 201 North Wells Street, Chicago, Illinois, and that the affiant had signed and accepted the Installment Sales Contract involved herein on behalf of A to Z Rental on June 9, 1969 in Chicago, Illinois.

The Installment Sales Contract contained a confession of judgment clause, which permitted the plaintiff to confess a judgment against the defendants for amounts due if payments were not made. The contract also contained the following language located, in capital letters and bold type, directly above the place for defendants’ signatures:

“This contract shall not be binding upon seller or become effective until and unless accepted on behalf of seller by seller’s president, vice president or treasurer in writing at Chicago, Illinois.”

The sole question for us is whether the Installment Sales Contract which contained the confession of judgment clause was “executed” in Cook County, Illinois.

It is plaintiff’s position that the defendants’ signing of the contract and placing it in the mail in Ohio did not constitute the execution of the contract, since by its terms, the contract clearly stated that it would not be effective until signed by A to Z in Chicago. It is urged that the signing in Chicago was the final act necessary to render the contract “executed.” Plaintiff argues that where the parties to a contract make the signing of the contract a condition precedent to its completion, the contract, and any provisions or clauses therein, is not binding until that condition is performed.

The defendants, on the other hand, claim that the contract, having been signed by them and deposited in the mail in Ohio, was not “executed” in Cook County as required by statute when confessing a judgment.

We think basic contract law supports the plaintiff’s position that the contract was executed in Cook County. The record clearly establishes that the defendants signed a contract which specifically provided that it would not be effective until accepted and signed in Chicago by a representative of A to Z Rental. The provision was located, in capital letters and bold type, directly above where the defendants placed their signatures. There is no contention that the defendants were not aware of the provision or that they did not assent to it.

It is elementary that the language of the instrument can govern the mode of acceptance required. As stated in Baltimore & Ohio Southwestern R.R. Co. v. People ex rel. Allen, 195 Ill. 423, 428, 63 N.E. 262, 263.

‘Where the parties make the reduction of the agreement to writing, and its signature by them, a condition precedent to its completion, it will not be a contract until that is done.”

The following language is found in Brophy v. City of Joliet, 14 Ill.App.2d 443, 453, 144 N.E.2d 816, 821:

“Appellants had a perfect right to designate the manner in which its proposal should be accepted. They did so, stating that in order to constitute a contract the proposal must not only be accepted, but the acceptance must be signed. Having so provided and specified, no other form of acceptance would be effective to bind appellants. Where an offer requires an acceptance to be in writing, no other form of acceptance can be made.”

The proposal sent to the defendants in Elyria, Ohio, was in fact an offer by the defendants to purchase certain merchandise from A to Z Rental, Inc. The offer was accepted, as provided in the contract, in writing by the seller’s representative in Chicago, Illinois. The final act necessary to render the contract “executed” took place at that time and rrot before. Surely, no one would contend that the defendants could have sustained a successful suit for specific performance of the contract prior to plaintiff’s signing it. We hold, therefore, that the contract was “executed” in Cook County.

Much reliance is placed by defendants on the cases of Solem Machine Co. v. Georgia Lumber & Veneer Co., 18 Ill.App.2d 547, 152 N.E.2d 626, and Investors Commercial Corp. v. Metcalf, 13 Ill.App.2d 99, 140 N.E.2d 924, for the proposition that where a contract is retained by a seller, delivery of such contract is considered to have occurred at the time and place where the buyer delivered it since it was there that the buyer lost control of it. A careful examination of these two cases clearly shows that they do not apply to the facts in the instant case. Both Solem and Investors involved promissory notes, which generally require the signature of only one party, rather than contracts, which require the signatures of both parties. Moreover, in neither case was there a provision that the note would not be binding or effective until accepted by the payee in writing at a particular place.

For the reasons stated herein, the decision of the trial court vacating plaintiff’s judgment by confession should be reversed and the judgment reinstated.

Reversed and remanded with directions.

DIERINGER and ADESKO, JJ., concur.


author: Mr. JUSTICE McNAMARA

text:
    Sectoria Madison, a Minor, by Abbie Madison, Her Mother and Next Friend, Plaintiff-Appellee, v. Jacob Reuben, Defendant—(The Department of Public Aid, Intervenor-Appellant.)
    (No. 56299;
    First District (3rd Division)
    February 1, 1973.

      William J. Scott, Attorney General, of Chicago, (Francis T. Crowe and Herman R. Tavins, Assistant Attorneys General, of counsel,) for appellant Dept, of Public Aid.
    Arnold and Kadjan, of Chicago, (Daniel N. Kadjan, of counsel,) for appellee.
   Mr. JUSTICE McNAMARA

delivered the opinion of the court:

The State Department of Public Aid appeals from an order of the circuit court of Cook County which reduced its lien.

Plaintiff, Sectoria Madison, a minor, filed suit by her mother and recovered a judgment for personal injuries in the amount of $15,000. That judgment was affirmed by this court in Madison v. Reuben, 128 Ill.App. 2d 11, 262 N.E.2d 794. The validity of that judgment is not questioned in in the present appeal.

Prior to the entry of judgment, the Department filed a lien, pursuant to Ill. Rev. Stat. 1969, ch. 23, par. 11 — 22, claiming an interest in plaintiffs cause of action. The trial court granted leave to file an intervening petition and the Department established a hen, admitted by the plaintiff to be valid, in the amount of $1,078.89.

The statute in question permits the Department to seek reimbursement for medical assistance payments made to a minor. The statute further provides in part:

“On petition filed by the Illinois Department * * * or by the recipient, or by the defendant, the court, on written notice to all interested parties, may adjudicate the rights of the parties and enforce the charge. The court may approve the settlement of any claim, demand or cause of action either before or after a verdict * * #. The court may determine what portion of the recovery shall be paid to the injured person and what portion shall be paid to the Illinois Department #

After this court had affirmed the judgment in Madison v. Reuben, plaintiff petitioned the circuit court to adjudicate the Department’s lien. Plaintiffs petition set forth that the total amount of proceeds available for distribution, including interest on the judgment, was $16,500. It further set forth that the fees of plaintiff’s attorneys were $5,500; that the attorneys’ expenses were $858.89; and that a doctor had a claim in the amount of $2,020. The trial court entered an order directing that plaintiffs attorneys’ fees and expenses be paid in full; that the doctor’s bill be paid in full; but that the Department’s lien be reduced by fifty percent. The order further directed that the balance of the proceeds, $7,581.66, be received by the plaintiff. The Department appeals from that portion of the trial court’s order which reduced its lien by fifty percent.

The Department argues that any construction of the above quoted portion of the statute viewing the court’s power to “adjudicate” a State lien as including a power of reduction would be void.

Section 23 of Article IV of the Illinois Constitution of 1870j in effect at the time of these proceedings, provided as follows:

“The general assembly shall have no power to release or extinguish, in whole or in part, the indebtedness, liability or obligation of any corporation or individual to this state or to any municipal corporation therein.”

Due to the limitations of this provision of the Constitution then in effect, the legislature had no power to reduce or compromise a valid debt owing to the State, and having no such power, it could not, therefore, delegate such power to anyone. (Massell v. Daley, 404 Ill. 479, 89 N.E.2d 361; Knackstedt v. Department of Mental Health, 69 Ill.App.2d 98, 216 N.E.2d 517; In re Estate of Moyer, 131 Ill.App.2d 915, 267 N.E.2d 713.) We view the above statute as enabling the trial court to examine the merits of the Department’s claim and to determine if it represented a valid charge against plaintiff’s assets. Once the court had made such a determination, it had no authority to reduce the valid claim of the State.

In the instant case, the plaintiff conceded the validity of the Department’s hen. Accordingly, that part of the order of the circuit court reducing the Department’s hen to $539.45 is reversed, and the cause is remanded with directions to the trial court to adjudicate the Department’s hen in the amount of $1,078.89.

Order reversed and cause remanded with directions.

DEMPSEY, P. J., and McGLOON, J., concur.


author: Mr. PRESIDING JUSTICE DEMPSEY

text:
    Ernest C. Erickson, d/b/a Carl E. Erickson Company, Plaintiff-Appellee, v. Bituminous Casualty Corporation, Defendant-Appellant.
    (No. 56561;
    First District (3rd Division)
    February 1, 1973.

      Nolan, O’Malley and Dunne, of Chicago, for appellant.
    Dent, Hampton & McNella, of Chicago, (John P. Hampton, of counsel,) for appellee.
   Mr. PRESIDING JUSTICE DEMPSEY

delivered the opinion of the court:

This appeal arises from a dispute between an insurance company and its insured.

Martin Conroy, an employee of the Carl E. Erickson Company, a general .contractor, was injured while working on a building being constructed by Erickson for E. J. Brach & Sons. Conroy sued Brach for damages and Brach filed a third-party complaint against Erickson for indemnification. Conroy obtained a judgment against Brach for $85,000 and Brach obtained one against Erickson for a like amount. The judgments were appealed.

Erickson was defended in the Brach suit by the Bituminous Casualty Corporation pursuant to a policy which contained these provisions:

“Coverage A — Workmen’s Compensation: To pay promptly when due all compensation and other benefits required of the insured by the workmen’s compensation law. Coverage B — Employer’s Liability: To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury by accident * * * sustained # * by any employee of the insured arising out of and in the course of his employment * #

During the pendency of the appeal, the litigation was settled by paying Conroy $50,000 in addition to $12,000 he had received in compensation benefits — for which subrogation rights were waived. During the settlement negotiations a controversy developed between Erickson and Bituminous. The maximum protection afforded by coverage B was $25,000 and Erickson demanded that Bituminous pay this amount. Bituminous refused to contribute more than $13,000. It contended that its total liability for one accident was $25,000 and that it had paid $12,000 of this sum to Conroy in compensation benefits under coverage A of the policy. As finally agreed, Bituminous contributed $13,000 toward the $50,000 settlement, Erickson $24,000 and Brach $13,000. Erickson’s $24,000 payment was made without prejudice to its right to recover $12,000 from Bituminous.

Bituminous maintained its position and Erickson filed a complaint in the Circuit Court. In its answer, Bituminous denied that it had a duty to pay $25,000 under coverage B. It asserted that its $13,000 contribution to the Conroy settlement was sufficient because Erickson had a $12,000 workmens compensation hen on the money Conroy recovered from Brach; that Bituminous was subrogated to Erickson’s hen and was, therefore, entitled to deduct the amount of the hen from whatever sum it owed Erickson by reason of coverage B.

Erickson moved to strike this defense. Its motion was sustained and a judgment on the pleadings for $12,000 plus interest was entered against Bituminous. Bituminous contends that the trial court erred in allowing the motion to strike and in entering judgment. Its contention is premised on section 5(b) of the Workmen’s Compensation Act, on the subrogation provision of the policy, and on two opinions of this court: Continental Casualty Co. v. Sweda (1969), 113 Ill.App.2d 423, 251 N.E.2d 65, and Daly v. W. E. O’Neil Construction Co. (1971), 133 Ill.App.2d 655, 273 N.E.2d 505.

Section 5(b) of the compensation act (Ill. Rev. Stat. 1967, ch. 48, par. 138.5(b)), provides that if an employee’s injuries are caused by someone other than his employer and he recovers damages from this party, the employer may recover whatever compensation benefits it paid to the employee and that it shall have a hen for this purpose upon the money received by the employee. The subrogation clause of the Erickson-Bituminous insurance policy transferred this right to Bituminous: “In the event of any payment under this pohcy, the company shall be subrogated to all rights of recovery therefor of the insured * * * against any person or organization # The Sweda case interpreted section 5(b) and the right of an insurance carrier to recover its compensation payments to an injured employee. A sum had been paid by a third party in settlement which was less than the judgment against it and less than the compensation payments. The trial court divided this sum between the employee’s conservator and the carrier. In reversing the trial court, the Appellate Court held that section 5(b) called for full indemnification and that the carrier was entitled to reimbursement insofar as the tim'd party payment would allow. The court said that where an injury had been caused by a third party and where recovery could be had from the third party, the law contemplated that the employer should be reimbursed out of this recovery since the employer did not cause the workman’s injury.

The court made it clear, however, that the purpose of section 5(b) is to provide protection for a non-negligent employer. In the present case it has been legally established that the employer — Erickson—was negligent. Although Conroy obtained a judgment against a third party — Brach —for his injuries, Brach in its action-over obtained one against Erickson on the theory that its negligence was passive while Erickson’s was active.’ Erickson’s primary fault was thus established in law. Since Brach’s judgment was, in effect, an adjudication that Erickson was the active tortfeasor, responsible for Conroy’s injuries and liable for his damages, Erickson could not recover from Conroy the amount paid to him in compensation benefits. Bituminous has no greater standing than Erickson. (McCormick v. Zander Reum Co. (1962), 25 Ill.2d 241, 184 N.E.2d 882.) If Erickson has no right to reimbursement, Bituminous has no such right; if Erickson has no lien, its subrogee has none. To permit Bituminous to recover the $12,000 compensation payment it made to Conroy under coverage A of the policy (by reducing its settlement contribution $12,000, thus compelling Erickson to contribute this additional amount) would be allowing Bituminous to impose its loss not on Conroy but on Erickson, its own insured. This is not sanctioned by section 5(b) nor authorized by tire policy.

The Sioeda case does not aid Bituminous and neither does Daly v. W. E. O’Neil Construction Co. which it cites to support its argument that a purchaser of workmen’s compensation insurance cannot defeat an insurer’s right of subrogation even when indemnification means recovery from an insured who was at fault. O’Neil interpreted a subrogation clause identical to the one in the Erickson policy. Bethlehem Steel Corporation entered into a contract with the City of Chicago for viaduct construction and it agreed to procure two workmen’s compensation insurance policies for the protection of itself and the City. Instead, a policy was purchased which named only the City as the insured. Daly, an employee of Bethlehem, was injured when he fell from a scaffold and he sued O’Neil, the general contractor, and the City. The City filed a third-party action against Bethlehem charging that Bethlehem’s active negligence caused Daly’s injuries. Daly obtained a judgment against the City and the City obtained one against Bethlehem. Bethlehem paid the judgment and filed a fourth-party complaint against its insurance company, the City’s subrogee, on the theory that it had paid for the City’s liability insurance. A judgment was entered for the insurer and on appeal the judgment was affirmed. The insurance Company was permitted to recover from the purchaser of the policy and not from its own insured as Bituminous attempts to do in this case. The O’Neil court recognized the distinction. It acknowledged that subrogation would not be permitted against a carrier’s own insured.

The trial court did not err in striking Bituminous’ defense.

The court was also correct in entering judgment on the pleadings. An insurance contract is to be interpreted from an examination of the complete document. (Nationwide Insurance Co. v. Ervin (1967), 87 Ill.App.2d 432, 231 N.E.2d 112.) An examination of the Erickson-Bituminous policy leads to the conviction that the parties contracted for two coverages that were independent of each other: workmens compensation (A) and employers’ liability (B). Provisions pertinent to coverage B are: the Insuring Agreements under which the insurer agrees to pay all sums the insured was legally obligated to pay as damages because of bodily injury; item 5 of the Declarations which fixes the insurer’s limit of liability for coverage B at $25,000 “subject to all the terms of this policy having reference thereto”; item 9 of the Conditions which states that $25,000 is the total limit of the insurer’s liability “for all damages because of bodily injury by accident * * * sustained by one or more employees in any one accident”; Exclusions (c) and (f) which state that the policy does not apply to liability assumed by the insured under any contract or agreement, nor to any obligation for which the insured, or any carrier as his insurer, may be held under the workmen’s compensation of Illinois. Other statements in the policy relating to Bituminous’ reimbursement for workmen’s compensation payments are unrelated to coverage B because they apply to benefits in excess of those provided by law either because of willful misconduct of Erickson or the employment of a person in violation of the law. Nowhere in the policy is it said or intimated that what Bituminous might have to pay under coverage B would be reduced by what it might have paid under coverage A. There is no limitation on the amount of Bituminous’ liability under coverage A. If the construction of the policy which Bituminous advocates were to be accepted, its compensation payments under A up to or in excess of $25,000 would be subject to subrogation recovery. In such an event Erickson would be entirely deprived of employers’ liability protection.

This was neither tire intention nor fire purpose of the policy. In Keys Engineering Co. v. Boston Insurance Co. (S.D. Fla. 1961) 192 F.Supp. 574, a case construing a comparable policy, the court expressed our view: “The policy of insurance * * * was composed of two distinct coverages: (1) Workmen’s Compensation Coverage, and (2) Employers’ Liability Coverage; each being exclusive of the other and each indemnifying the Plaintiff against liabilities not included in the other coverage # # # ”

The judgment is affirmed.

Affirmed.

McNAMARA and McGLOON, JJ., concur.


author: Mr. JUSTICE McGLOON

text:
    The People ex rel. Francis J. Heavey, Plaintiff-Appellee, Cross-Appellant, v. Joseph H. Fitzgerald, Commissioner of the Department of Buildings of the City of Chicago, et al., Defendants-Appellants, Cross-Appellees.
    (No. 56851;
    First District (3rd Division)
    February 1, 1973.

      Richard L. Curry, Corporation Counsel, of Chicago, (William R. Quinlan and Robert R. Retke, Assistant Corporation Counsel, of counsel,) for appellants.
    Francis J. Heavey, of Chicago, for appellee.
   Mr. JUSTICE McGLOON

delivered the opinion of the court:

The defendants appeal from a judgment of the circuit court of Cook County ordering that a writ of mandamus issue commanding them to restore the relator to his position with the Department of Buildings of the City of Chicago and commanding them to pay the relator his salary for the period of May 8, 1971, through May 28, 1971. The relator cross-appeals from that part of the judgment granting him his salary only for the 20-day period.

On appeal the defendants, Joseph H. Fitzgerald, Commissioner of the Department of Buildings of the City of Chicago, Otto H. Loser, Comptroller of the City of Chicago, and Joseph Bertrand, Treasurer of the City of Chicago, contend that the relator was guilty of laches in filing his complaint for mandamus and that the trial court erred in denying defendants’ motion to strike and dismiss the complaint. On cross-appeal the relator, Francis J. Heavey, contends that the trial court erred in not ordering the defendants to pay him his salary from May 8, 1970, the date on which he was suspended from his job in the Department of Buildings, to May 28, 1971, the date on which the defendants were served with process in the present suit.

We affirm.

The relator, Francis J. Heavey, was employed by the Department of Buildings as a Code Enforcement Supervisor, a civil service position. Heavey had held this position for over a year when he received a written notice of suspension and was suspended on May 8, 1970. At the time of his suspension Heavey had been indicted, and criminal charges were pending against him. Previous to his suspension, Heavey had worked for the Department of Buildings for 12 years.

The evidence adduced at the hearing on defendants’ motion to strike and dismiss showed that in June or July of 1970 Heavey went to the Department of Buildings and spoke with two Assistant Commissioners, Mr. Brick and Mr. Duffy, about being returned to work. At that time, Mr. Brick, who had known Heavey for more than 14 years, aided him in preparing a letter requesting that he be reinstated in his job. Heavey then spoke with Mr. Duffy, who handled some of the legal affairs of the Department, and he told Heavey that a letter was not necessary. Duffey also informed him that everything would be cleared up as soon as the criminal charges were over and that he should not worry. Likewise, Brick told Heavey several times that he would be reinstated as soon as the criminal charges were cleared up.

On May 6, 1971, Heavey was cleared of all criminal charges against him. The next day, a Friday, he went to the office of the Commissioner of Buildings to request reinstatement, but the Commissioner was not in. The next Monday morning he presented a letter to Duffy requesting reinstatement. Duffy then asked the relator if he would take a one-year leave of absence, and Heavey refused. No further action had been taken by the defendants concerning Heavey’s restoration when he filed this suit on May 26, 1971.

The defendants filed a motion to strike and dismiss the complaint for mandamus because of laches. After a hearing in which testimony was received, the trial court resolved the issue of laches in favor of the relator and granted the defendants leave to answer the complaint and then to amend its answer. The trial court ordered the relator to be restored to his position and ordered the defendants to pay him his salary from May 8, 1971, the day after he went to the Department of Buildings to request reinstatement, until May 28, 1971, when the defendants were served with process.

The record shows that Heavey was not told by any of his superiors that he would be paid for the time he was suspended. During his suspension, his duties were performed by someone else in the Department of Buildings. The Department never filed formal charges against Heavey with the Civil Service Commission, nor did it inform him that he should take any action to protect his job rights, nor did it discharge him.

The defendants contend that the relator was guilty of laches because he did not file his suit for mandamus until over 11 months had passed from the end of the 30-day statutory period after which no employee in a classified civil service position may be suspended except for cause upon written charges and after an opportunity to be heard in his own defense. (Ill. Rev. Stat. 1969, ch. 24, par. 10 — 1—18.) Notwithstanding the fact that Heavey’s suspension past the 30-day period was unlawful (People ex rel. Petlock v. McDonough (1971), 131 Ill.App.2d 469, 268 N.E.2d 267), the defendants argue that the relator should have filed his suit on or soon after June 8, 1970, one month after he was suspended.

Laches is the neglect or omission to assert a right which, taken in conjunction with a lapse of time and circumstances causing prejudice to the opposite party, will operate as a bar to a suit. (People ex rel. Cronin v. Cahill (1969), 118 Ill.App.2d 18, 254 N.E.2d 161.) Defendants argue that since the relator did not file suit within six months of June 8, 1970, his suit should be barred. Reliance is placed on the rule found in People ex rel. Ballinger v. O’Connor (1957), 13 Ill.App.2d 317, 142 N.E. 2d 144, and People ex rel. Cifaldi v. Wilson (1962), 38 Ill.App.2d 302, 187 N.E.2d 353, that a six-month time limitation has been placed on mandamus actions unless a reasonable excuse is shown for the delay. It is important to note that in both Ballinger and Cifaldi the relator was discharged by action of the Commissioner of Police in conjunction with the Civil Service Commission, and the six-month time limitation was applied to bar mandamus actions seeking reinstatement. In those cases the six-month rule was established to prevent prejudice to governmental bodies in which orderly procedures might be disturbed and disadvantages to third parties might result unless employees seeking reinstatement made their claims promptly known. Tire six-month rule has also been applied to bar a mandamus action where the relator who was formerly employed by the Department of Buildings failed to file suit within six months after his one-year leave of absence had expired. In that case, People ex rel. Sullivan v. Smith (1971), 272 N.E.2d 755, before taking a leave of absence relator was suspended, and civil service charges were 'filed against him, which were later dropped. There was testimony that consideration for the withdrawal of charges was the ultimate abandonment by the relator of his position.

In Kadon v. Board of Fire and Police Commrs. (1964), 45 Ill.App.2d 425, 195 N.E.2d 751, the court refused to apply the six-month rule to bar a declaratory judgment action by a fireman seeking priority on a promotional eligibility list based on an alleged illegal examination. The court in Kadon stated there was no fixed rule as to what amounted to laches but that its existence was to be determined by the facts and circumstances of each case. The factors which were listed are as follows:

“* * * (1) Conduct on the part of the defendant giving rise to the situation of which complaint is made and for which the complainant seeks a remedy; (2) delay in asserting the complainant’s rights, the complainant having had notice or knowledge of defendant’s conduct and the opportunity to institute a suit; (3) lack of knowledge or notice on the part of the defendant that the complainant would assert the right on which he bases his suit, and (4) injury or prejudice to the defendant in the event relief is accorded to the complainant or the suit is held not to be barred. Kadon v. Board of Fire and Police Commrs. (1964), 45 Ill.App.2d 425, 431, 195 N.E.2d 751, 754.”

The six-month rule is more susceptible of application to cases such as Ballinger and Cifaldi in which the relator was discharged by action of the Civil Service Commission and the Commissioner of Police. In those cases die relators’ status vis-a-vis the Police Department had been administratively determined, and channels were open for review. In the instant case, defendants would have us apply the six-month rule beginning with the end of the 30-day statutory period. The six-month period could just as reasonably begin at the date of Heavey s suspension. In any event, no matter which date is used, if the six-month rule is applied, Heavey is guilty of laches unless a reasonable excuse is found for the delay. Our decision in the instant case could be reached by application of the six-month rule or by application of the factors set out in Kadon, because the factors used to determine whether a reasonable excuse is present are similar to the factors used to determine laches.

After hearing testimony in the present case addressed solely to the issue of laches, the trial court denied the defendants’ motion to strike and dismiss the relator’s complaint. The question of laches is addressed to the sound discretion of the trial court, and reviewing courts will not set aside its determination unless there is an abuse of discretion. Kadon v. Board of Fire and Police Commrs. (1964), 45 Ill.App.2d 425, 195 N.E.2d 751.

The record shows that the relator believed that he would be reinstated in his position upon the conclusion of the criminal proceedings. This was a reasonable belief in light of the facts that Heavey was suspended soon after the criminal proceedings began, and his superiors represented to him that he need not take any action to protect his job rights, because he would be reinstated as soon as he was cleared of the criminal charges.

The defendants argue that Heavey could not have reasonably relied on the conversations he had with his superiors in the Department of Buildings. In support of this contention defendants cite McGowan v. City of Chicago (1913), 178 Ill.App. 76, and People ex rel. Ballinger v. O’Connor (1957), 13 Ill.App.2d 317, 142 N.E.2d 144. Both cases are distinguishable. McGowan involved a writ of mandamus to compel the City to restore McGowan to tire rank of sergeant from which he had allegedly been improperly removed. In finding laches, the court held that indefinite promises of reinstatement made to McGowan by his superiors and threats of discharge from the Police Department if he demanded reinstatement were not sufficient excuses to delay filing suit for 10 years. Ballinger involved a suit for mandamus by a discharged probationary police officer to compel his restoration as a patrolman. The relator unsuccessfully contended that his excuse for the delay in filing suit was his reliance on the vague statement of a surgeon that if the relator would bring him a clean bill of health, he (the surgeon) would see what he could do.

In the instant case, suit was filed approximately one year after the relator was suspended and immediately after being cleared of the crimina) charges against him, and it was reasonable for Heavey to rely on the statements of his superiors in the Department of Buildings, given his uncertain job status following his suspension.

In his cross-appeal, the relator contends that the trial court erred in not computing his back salary from the date of his suspension. The defendants argue that the cross-appeal should be dismissed on procedural grounds. The judgment order was entered by the trial court on September 28, 1971. The defendants filed their notice of appeal on October 28, 1971. On June 28, 1972, the relator filed a motion requesting an extension of time for filing notice of cross-appeal, which motion was granted over defendants’ objection. Defendants argue that the time requirements of Supreme Court Rules 303(a) and 303(e) preclude the filing of realtor’s notice of cross-appeal. Because we have decided to dismiss the cross-appeal on the merits, we need not decide defendants’ procedural objections.

At the hearing on defendants’ motion to strike and dismiss, Heavey testified on cross-examination that nobody from the Department of Buildings ever told him that when he returned to work he would be paid his back salary. It is apparent from the record that Heavey expected to be restored to his position as soon as the criminal charges against him were cleared up, and only upon restoration did he expect to be paid his prospective salary. The representations of Brick and Duffy concerned the relator’s job rights in the future and did not mention anything about Heavey’s loss of salary during his suspension. Heavey did not perform any duties for the Department of Buildings during his suspension. Therefore, we find no error in the trial court’s order restricting the grant of back salary to the 20-day period.

Accordingly, the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

DEMPSEY, P. J., and McNAMARA, J„ concur.


text:
    Margaret Manos, Admr. of the Estate of Harry Manos, Deceased, Plaintiff-Appellant, v. The State of Illinois, Defendant-Appellee.
    (No. 56877;
    First District (3rd Division)
    February 1, 1973.
    John D. Hayes, of Lisco & Field, of Chicago, for appellant.
    William J. Scott, Attorney General, of Chicago, for appellee.
   Mr. PRESIDING JUSTICE DEMPSEY

delivered the opinion of the court:

On January 31, 1969, Harry Manos, the plaintiff’s husband, was driving east on Roosevelt Road in Villa Park, Du Page County. Approximately 1000 feet west of Ardmore Avenue his automobile struck a hole in the street, went out of control and collided with a utility pole. Manos was severely injured and he died the following month. Margaret Manos, his wife and the administrator of his estate, subsequently instituted the present action against the State of Illinois in the Circuit Court of Cook County. The State was charged with • knowingly, carelessly and negligently allowing the section of Roosevelt Road west of Ardmore to exist in a defective condition and with failing to warn motorists of such dangerous condition, thus proximately causing the death of her husband. Damages of $150,000 were sought and a jury demand was made. The plaintiff also filed a notice of claim for wrongful death, a petition alleging the facts of her husband’s accident and a request for damages of $25,000 in the Illinois Court of Claims. In the Circuit Court the State moved either for summary judgment or to dismiss the plaintiff’s complaint, citing Article IV, section 26 of the Illinois Constitution of 1870 then in force, which prohibited the State from being made a defendant “in any court of law or equity.” The court dismissed the complaint. From that order the plaintiff appealed to the Illinois Supreme Court which transferred the case to this court.

The plaintiff contends that Article IV, section 26 of the 1870 Illinois Constitution, even though modified by the Court of Claims Act (Ill. Rev. Stat. 1969, ch. 37, para. 439.1, et seq.), contravenes the due process and equal protection clauses of the Fourteenth Amendment of the United States Constitution, and is therefore void. By the enactment of the Court of Claims Act the legislature made it possible for a citizen to obtain redress of alleged legal wrongs committed by the State and gave this forum exclusive jurisdiction in certain types of cases. (Cf. Chicago Welfare Rights Organization v. Weaver (1972), 5 Ill.App.3d 655, 284 N.E.2d 20.) It is the province of the court to hear and determine liability regarding “All claims against the State for damages in cases sounding in tort, in respect of which claims the claimants would be entitled to redress against the State of Illinois, at law or in chancery, if the State were suable, # ” provided that an award for damages in a case sounding in tort shaH not exceed the sum of $25,000 to or for the benefit of any claimant.” (Ill. Rev. Stat., 1969, ch. 37, par. 439.8(d).) The features of the Act to which the plaintiff particularly objects are the limitation of the amount of recoverable damages and the lack of provision for jury trials.

The State asserts that the plaintiff may not challenge the validity of the above constitutional and statutory provisions since she has not shown herself to be sufficiently aggrieved to do so. One who wishes to attack a statutory provision as contravening the Constitution must be directly affected by that law. (People v. Bombacino (1972), 51 Ill.2d 17, 280 N.E.2d 697; People v. Reiner (1955), 6 Ill.2d 337, 129 N.E.2d 159.) If a party is not aggrieved by the operation of the chaUenged provision the alleged unconstitutional features of an act must be so pervasive as to, if successfully interposed, render the entire act invalid. (Huckaba v. Cox (1958), 14 Ill.2d 126, 150 N.E.2d 832.) In Edelen v. Hogsett (1969), 44 Ill.2d 215, 254 N.E.2d 435, it was held that Article IV, section 26 of the Illinois 1870 Constitution, as modified by the Court of Claims Act, is not wholly invalid on its face so as to come within the scope of the foregoing exception. Thus, the plaintiff must establish that she is properly aggrieved to press her claim.

The fact situation in Edelen was similar to that of the present case. There, the plaintiffs brought an action against the State in the Circuit Court seeking damages for personal injuries allegedly incurred in an automobile accident. Their claim against the State was dismissed on the ground that it was precluded by section 26 of Article IV of the Illinois Constitution of 1870. The reviewing court affirmed the action of the trial court and refused to consider the plaintiffs’ claim that section 26 violated the Fourteenth Amendment of the United States Constitution. The court declared that since the plaintiffs had made no effort to seek remedy against the State in the Court of Claims, they did not constitute aggrieved parties so as to enable them to challenge the constitutional prohibition of suits against the State.

The plaintiff’s posture in the case before us differs from that of the plaintiffs in Edelen in these respects: in the Circuit Court the damages sought exceeded the amount payable in the Court of Claims and a jury trial was demanded; in the Court of Claims an action for relief was initiated by the filing of proper notices and the filing of a petition for damages. We must determine, therefore, whether these variances are sufficient to compel an outcome different from that in the Edelen case.

Illustrative of the preliminary steps an individual must take to be directly aggrieved by the operation of a provision allegedly contravening the Constitution is a case cited in the Edelen opinion. In Gholson v. Engle (1956), 9 Ill.2d 454, 138 N.E.2d 508, the plaintiff contended that a statutory provision was invalid which permitted the board issuing licenses for funeral directors to include in the qualifying examination questions pertaining to embalming. The court refused to consider the plaintiffs objection to that enactment since the plaintiff was not found to be directly affected by the statute as he had not actually taken the examination. This result was reached despite the plaintiff’s argument that to have taken such an examination would have been futile.

The plaintiff contends that the remedy afforded her by the Court of Claims will be inadequate. However, she has not pursued her claim in that court far enough to determine what the ultimate disposition of the case will be. The evidence before that tribunal might establish that she is not entitled to recover as a matter of law, that the deceased was guilty of contributory negligence, or that aH the evidence considered in its aspect most favorable to the plaintiff so overwhelmingly favors the defendant that a verdict in the plaintiff’s favor could not stand. On the other hand, assuming that she is entitled to damages, she might feel after considering the case presented by the State that the award of the court was just and that it would be unwise to further press her claim.

We conclude that the mere filing of a petition in the Court of Claims does not satisfy the requirement of Edelen v. Hogsett that a party must first seek his remedy in that court prior to attacking the validity of Article IV, section 26 of the Illinois Constitution of 1870. This court will not anticipate constitutional questions, and the relatively minor inconvenience to the plaintiff of the postponement of decision does not alter our conclusion. People v. Illinois Protestant Children’s Home, Inc. (1965), 33 Ill.2d 60, 210 N.E.2d 217.

It was not error to grant the defendant’s motion to dismiss the plaintiff’s complaint, and the order of the Circuit Court will be affirmed.

Affirmed.

McNAMARA and McGLOON, JJ., concur.