author: JUSTICE HARRISON PRESIDING JUSTICE KARNS, JUSTICE WELCH,

text:
    JERRY MAXFIELD, Plaintiff, v. PAUL E. SIMMONS, Defendant and Third-Party Plaintiff-Appellant.—(WALTER DeNEAL, d/b/a DeNeal Building Supply, et al., Third-Party Defendants-Appellees.)
    Fifth District
    No. 81-108
    Opinion filed June 14, 1982.

      KARNS, P. J., concurring.
    WELCH, J., dissenting.
    Harris, Lambert and Wilson, of Marion, for appellant.
    David W. Hauptmann, of Harrisburg, for appellees.
   JUSTICE HARRISON

delivered the opinion of the court:

Paul E. Simmons, the defendant and third-party plaintiff, appeals from an order of the circuit court of Saline County which dismissed with prejudice his amended third-party complaint against the third-party defendants Walter DeNeal, d/b/a DeNeal Building Supply, and Jesse B. Holt, Inc. (“Holt”). The trial court expressly found no just reason for delaying an appeal; hence we have jurisdiction of this appeal pursuant to Supreme Court Rule 304(a) (73 Ill. 2d R. 304(a)). The sole issue is whether the trial court properly dismissed the amended third-party complaint. We affirm.

For the purposes of determining the sufficiency of a pleading all facts properly pleaded and all reasonable inferences which can be drawn from them are accepted as true. (See Bray v. Illinois National Bank (1976), 37 Ill. App. 3d 286, 290, 345 N.E.2d 503.) The amended third-party complaint alleged that Jerry Maxfield and Paul Simmons entered into a written agreement for the building of a home. Simmons built the home and used trusses purchased from Walter DeNeal, one of the third-party defendants, and which had been manufactured by Holt, the other third-party defendant. Subsequently, Maxfield sued Simmons, alleging that the roof of the house had buckled, damaging the interior ceiling. Maxfield’s complaint, incorporated by reference in Simmons’ third-party complaint, alleged only that Simmons breached the contract and not that he committed any tortious misconduct. Simmons’ third-party complaint further asserted that in the event Simmons was liable to Maxfield, the liability would be due to “faulty and defective materials, including the trusses, which were sold by third-party defendant Walter DeNeal, 909 and designed, manufactured and sold by Jessie [sic] B. Holt, Inc. 9 9 9.” Simmons also contended that his potential liability would not be due to any fault of his own, but rather would solely be due to the fault of the third-party defendants. The third-party complaint concluded that Simmons was entitled to be indemnified by either or both third-party defendants.

The trial court ordered the amended third-party complaint stricken and dismissed with prejudice on the ground that it showed no cause of action not barred by the statute of limitations in the Uniform Commercial Code (Ill. Rev. Stat. 1979, ch. 26, par. 2 — 725). An appellate court may affirm a judgment for reasons other than those advanced by the trial court (Well v. Schoeneweis (1981), 101 Ill. App. 3d 254, 258, 427 N.E.2d 1343); hence, we need not address the limitations issue as we conclude the pleading states no cause of action against the third-party defendants.

On appeal Simmons contends that his third-party action is one for breach of an implied indemnity contract. The potential liability of Simmons to Maxfield is founded on the contract between Maxfield and Simmons to build the house. Simmons’ third-party complaint therefore seeks indemnification from DeNeal and Holt for Simmons’ potential liability stemming from his alleged breach of the Maxfield-Simmons contract. “Our research discloses no authority * “ * for the proposition that liability for breach of contract might entitle the wrongdoer to indemnity from a third party who was a stranger to the contract and had not contractually undertaken to indemnify the wrongdoer.” (Board of Education v. Joseph J. Duffy Co. (1968), 97 Ill. App. 2d 158, 162, 240 N.E.2d 5.) “As the Duffy decision indicates, a stranger to a contract between two parties cannot be compelled to indemnify one of the parties for breach of contract absent the stranger’s express agreement to so indemnify.” (Emphasis added.) (Talandis Construction Corp. v. Illinois Building Authority (1974), 23 Ill. App. 3d 929, 935, 321 N.E.2d 154.) No such express agreement was pleaded in the third-party complaint and thus no right to indemnification has been shown. Consequently, the third-party claim failed to state a cause of action and was therefore rightly dismissed.

The appellant’s position on this appeal is predicated on a misinterpretation of the law. He cites cases dealing with the liability of third-party defendants for negligence causes of action and concludes that the third-party complaint is sufficient because it alleges that DeNeal and Holt were negligent in providing him with defective trusses. This is not the relevant inquiry. The cases cited by Simmons (e.g., Badorski v. Commonwealth Edison Co. (1980), 89 Ill. App. 3d 494, 411 N.E.2d 924; Zajac v. Illinois Heating & Ventilating Co. (1980), 82 Ill. App. 3d 1148, 403 N.E.2d 674; Rome v. Commonwealth Edison Co. (1980), 81 Ill. App. 3d 776, 401 N.E.2d 1032; Reynolds v. Illinois Bell Telephone Co. (1964), 51 Ill. App. 2d 334, 201 N.E.2d 322), all involved negligence as the gravamen of the plaintiffs complaint against the defendant third-party plaintiff. The instant case, as noted above, is predicated on the plaintiff’s breach of contract action against Simmons. Although Simmons couches his third-party claim in terms of tort, this does not change the nature of Simmons’ potential liability in the suit brought by Maxfield. Hence, the cases on which Simmons relies are distinguishable, and Duffy and Talandis control.

We therefore affirm the order of the circuit court of Saline County.

Affirmed.

PRESIDING JUSTICE KARNS,

concurring:

While I concur in the opinion of the court, I also agree with the reasoning of the trial court. As between DeNeal and Holt, third-party defendants, and Simmons, third-party plaintiff, the transaction involving the trusses was simply a sale of goods under the Uniform Commercial Code. It is not suggested that this sale involved tortious conduct in any manner, even though Simmons employed the word “fault” in his third-party complaint. Plaintiff’s claim against Simmons was premised purely on breach of contract. Third-party defendants were entitled to invoke the specific provisions of the Uniform Commercial Code governing the sale of goods. Section 2 — 725 provides that any action for breach of any contract for sale must be commenced within four years after the cause of action accrues. This section provides further that a breach occurs and the cause of action accrues when the goods are delivered regardless of the aggrieved party’s lack of knowledge of the breach. (Ill. Rev. Stat. 1979, ch. 26, par. 2 — 725.) If the trusses were defective, they were defective at the time of delivery to Simmons. The fact that the purchaser was sued and brought a third-party action against the seller could not extend the time within which the seller could be sued by the purchaser. This case suggests other problems involving the relationship of tort law and the law of sales which are discussed in the recent opinion of the Supreme Court in Moorman Manufacturing Co. v. National Tank Co. (1982), 91 Ill. 2d 69.

JUSTICE WELCH,

dissenting:

I would reverse the trial court’s dismissal and reinstate the third-party complaint for the following reasons. Both the majority opinion and the concurring opinion analyze the situation in terms of contract only, ignoring the tortious aspects of the case. The original complaint by Max-field alleged that the house was defective, dangerous, and faulty and that it failed to comply with the contract between the parties. Thus, the action can be characterized as one for a tortious breach of contract.

The gist of the contractor’s third-party complaint is a denial of negligence on his part sufficient to breach the construction contract. If he, the contractor, is held liable for damage to the house, then he asserts that it is the manufacturer of the trusses and the supplier of the trusses and other building supplies that he used in building the house who are the real culprits in causing the damage.

The majority decision relies on the case of Board of Education v. Joseph J. Duffy Co. (1968), 97 Ill. App. 2d 158, 240 N.E.2d 5. In Duffy the school board sued the architectural firm (Perkins) involved in building a new high school for breach of contract because of failure to supervise the general contractor (Duffy). The architectural firm filed a third-party complaint against the general contractor for indemnity which was dismissed. The architects appealed. Recovery by the school against the architects on a tort theory was barred by the statute of limitations. Therefore the indemnity count based on the underlying tort theory was moot and properly dismissed. The court held that the count by the school against the architects for breach of contract for failure to supervise the contractors would not support a third-party complaint by the architects against the contractors for indemnity.

“Perkins’ breach was in its failure to supervise, and not in the fact that the contractor may have performed in an unworkmanlike manner. Thus, Duffy did not cause Perkins to breach its contract, assuming it is proven that Perkins breached its contractual obligation to supervise.” Board of Education v. Joseph J. Duffy Co. (1968), 97 Ill. App. 2d 158, 163, 240 N.E.2d 5, 8.

In the instant cause the contractor alleges that the only reason he might be held liable for damage to the house is because he unknowingly used defective trusses supplied by the manufacturer and supplier, in other words that they caused his breach.

“In Miller v. DeWitt [(1967) 37 Ill. 2d 273, 226 N.E.2d 630] the court held that a third-party complaint should not be dismissed unless it appears from the pleadings that in no event would the indemnitee have an action against the indemnitor. ” ° Rome v. Commonwealth Edison Co. (1980), 81 Ill. App. 3d 776, 780, 401 N.E.2d 1032, 1035, appeal denied (1980), 81 Ill. 2d 599.

It is true that no facts supporting an express contractual basis for indemnity were alleged by third-party plaintiff. His complaint was based on an implied contract of indemnity theory. A right to indemnity, absent an express contractual undertaking, may be implied from the terms of the contract governing job responsibility or from the relationship of the parties to the particular work being done at the time the injuries were received. Tiffiny Decorating Co. v. General Accident Fire & Life Assurance Corp. (1973), 12 Ill. App. 3d 597, 601, 299 N.E.2d 378, 381.

In its effort to find a basis for the contractor’s claim against the manufacturer and supplier the court assumed, erroneously, that the purchase of materials contract was the only thing which might support liability for indemnity. In this case, as in the case of Ozark Airlines, Inc. v. Fairchild-Hiller Corp. (1979), 71 Ill. App. 3d 637, 390 N.E.2d 444, the contract (between contractor and supplier, and by extension the contract between supplier and manufacturer) merely provided the relationship out of which arose the contractor’s right to seek indemnity.

Ozark Airlines contracted in 1958 for the purchase of three airplanes from Fairchild-Hiller, an aircraft manufacturer. They were delivered in 1959. On November 16, 1966, at O’Hare Airport, Chicago, Illinois, while one of the planes was taxiing from the loading gate the landing gear (nose wheel and two main gears) retracted and the plane’s fuselage settled on the ramp. One passenger suffered personal injuries and the plane was damaged extensively. The passenger sued Ozark in Federal court for his injuries. Ozark filed a third-party action against Fairchild for indemnity of any judgment entered against it on the passenger’s behalf. Ozark settled the case with the passenger in May of 1970 for $60,000. One year later Ozark sued Fairchild in the Circuit Court in Illinois for damages arising from the 1966 accident. Counts I, II, and III of the complaint sought indemnity from Fairchild for the $60,000 Ozark paid the passenger. The theories of recovery were negligence, breach of warranty (express and implied), and strict liability.

“Fairchild argues that the suit is barred by a 5-year statute of limitations [citation], since the relationship of the parties is contractual in nature and the cause of action accrued on the date of delivery of the aircraft, July 16, 1959. Ozark argues that the indemnity cause of action did not accrue until the settlement of Darragh’s personal injury suit on May 27, 1970 and, thus, is not barred by the statute of limitations. Ozark’s argument is well taken.
# # #
Additionally, plaintiff argues, and we agree, that the nature of Ozark’s action is not based on any express promise in the contract for indemnification. The contract merely provides the relationship out of which arises Ozark’s right to seek indemnity. * * * Therefore, we find that Ozark’s indemnity counts are not barred by the statute of limitations.” Ozark Airlines, Inc. v. Fairchild-Hiller Corp. (1979), 71 Ill. App. 3d 637, 638-39, 390 N.E.2d 444, 446.

In this case because the materials were delivered by the manufacturer to the contractor for the supplier on April 3, 1974, more than four years before the third-party complaint was filed, the court applied the statute of limitations for contracts for sale of goods under the Uniform Commercial Code to bar the action. The claim was not based on breach of the contract for purchase of goods but on indemnity and is therefore not limited by the statute of limitations of the U.C.C., either as to the length of time of the statute or the time when the cause of action accrues and the statute starts to run.

The cause of action for indemnity, if one exists, does not accrue until the defendant has judgment entered against him or until he settles the claim in reasonable anticipation of personal liability. (Forty-eight Insulations, Inc. v. Johns-Manville Products Corp. (N.D. Ill. 1979), 472 F. Supp. 385, 393.) Only at that point does the statute of limitations begin to run.

The statute of limitations for indemnity actions is the general five-year statute for “all civil actions not otherwise provided for.” Ill. Rev. Stat. 1979, ch. 83, par. 16; Sherman House Hotel Co. v. Butler Street Foundry & Iron Co. (1912), 168 Ill. App. 549.

Under Illinois law the defendant entitled to indemnity has a choice of filing a third-party complaint against a party or parties who may be liable to indemnify him as a part of the original action (Ill. Rev. Stat. 1979, ch. 110, par. 25(2)), or of waiting until the original action is over and filing a separate action for indemnity if he is found liable. (Gibbons v. Nalco Chemical Co. (1980), 91 Ill. App. 3d 917, 920, 417 N.E.2d 477, 480.) In effect, section 25(2) allows the third-party indemnity claim to be filed before it accrues, in order to promote settling of all claims in one action. (Muhlbauer v. Kruzel (1968), 39 Ill. 2d 226, 234 N.E.2d 790, 792). The third-party claim cannot be determined, however, before the underlying claim establishing liability and damages is determined. Klatt v. Commonwealth Edison Co. (1964), 55 Ill. App. 2d 120, 204 N.E.2d 319, modified on other grounds (1965), 33 Ill. 2d 481.

Because the contractor’s third-party complaint did state a cause of action for indemnity, it should not have been dismissed. Because the cause of action will not ripen until or unless the contractor is found liable in the original action or settles the original action in reasonable anticipation of being found liable, at which time the statute of limitations will begin to run, the third-party complaint is not barred. I would therefore reverse the trial court and remand the cause with directions to reinstate the third-party complaint.


source: Caselaw Access Project

author: PRESIDING JUSTICE KARNS JUSTICE WELCH,

license: Public Domain

text:
    KEVIN DEWAYNE OZMENT, a Minor, by Julia Ozment, His Mother and Next Friend, Plaintiff-Appellant, v. DOUGLAS C. LANCE, JR., et al., Defendants-Appellees.
    Fifth District
    No. 81-397
    Opinion filed June 30, 1982.
    WELCH, J., specially concurring.
    Harris, Lambert and Wilson, of Marion, for appellant.
    John Speroni, of Garrison and Garrison, of Marion, and Edward J. Kionka, of Carbondale, for appellees.
   PRESIDING JUSTICE KARNS

delivered the opinion of the court:

Kevin Ozment brought a two-count complaint against his employer, Douglas C. Lance, Jr., and Thomas H. Vernier, a partnership, and M. R. Associates, Ltd., d/b/a Marion Ramada Inn (hereinafter Ramada Inn), for injuries received, resulting in physical and psychological damage, when he was subjected to deviate sexual abuse when assaulted by two male guests registered at the Ramada Inn where the plaintiff was employed as a bus boy.

Count I was brought under the Dramshop Act (Ill. Rev. Stat. 1979, ch. 43, par. 135). Count II alleged negligence on the part of the defendants in failing to provide plaintiff a safe place to work, in failing to control the criminal conduct of the guests who assaulted plaintiff, and in directing and allowing plaintiff to serve alcoholic beverages to the guest rooms at the Ramada Inn in violation of a section of the liquor control ordinance of the City of Marion which made it unlawful for a minor under 21 years of age to serve alcoholic liquor as an employee of a liquor licensee.

After discovery, defendants moved for summary judgment, asserting that plaintiff’s exclusive remedy, as an employee of defendants, was under the Workers’ Compensation Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.5), which applied automatically and without election to employers and their employees in establishments wherein alcoholic beverages are sold to the general public for consumption on the premises. (Ill. Rev. Stat. 1979, ch. 48, par. 138.3.) Defendants further asserted that the answers to interrogatories and discovery depositions conclusively established that the defendants had no duty to protect plaintiff against the criminal acts of third parties absent knowledge of previous incidents or special circumstances from which such acts could be anticipated.

The trial court denied that part of the motion for summary judgment which asserted that plaintiff’s exclusive remedy was under the Workers’ Compensation Act, apparently for the reason that the court concluded plaintiff’s injuries did not arise out of his employment because the serving of liquor by plaintiff, a minor, was illegal under the liquor control ordinance of the City of Marion. The court refused to certify that question for review under Supreme Court Rule 308 (73 Ill. 2d R. 308). The court entered summary judgment for defendants on count II of the complaint and made an express finding that there was no just reason for delaying appeal under Supreme Court Rule 304(a) (73 Ill. 2d R. 304(a)).

On April 11, 1977, plaintiff, a high school student, was employed part-time as a bus boy at defendant, Ramada Inn. He was 17 the day after the occurrence here in question. His duties were to assist the waitresses in the dining room. Bus boys, including plaintiff, also took food and beverage orders to guest rooms when so directed by the dining room hostess, including alcoholic beverages, although the restaurant manager who employed plaintiff did not consider delivering alcoholic beverages to guest rooms as part of his duties. No minor was allowed to go into the bar to obtain alcoholic beverages for the purpose of taking them to a guest room. Instead, such beverages would be brought to the dining room from the bar by a waitress.

On April 11, 1977, Robert Stacey, Larry Phelps and the sister of one of the men registered at the Ramada Inn and were assigned rooms 230-232. The men went into the lounge and each ordered one drink, a highball and a beer. Joan Gower, lounge manager, testified on deposition that from their mannerisms and conversation she could determine that they were “queer,” presumably meaning homosexual. They did not appear intoxicated to her.

Joan Burton, dining room hostess, testified on deposition that on the evening of April 11,1977, the plaintiff took an unopened six-pack of beer to the rooms of the individuals later determined to be plaintiff’s assailants at her direction in response to a room service call that she received in the dining room. Plaintiff no sooner returned to the dining room than another call for another six-pack of beer was received from the same individual and Burton directed plaintiff to take another six-pack to the same rooms. Plaintiff was reluctant to go, but Burton only attributed this to the fact that plaintiff was busy with his chores in the dining room. She did not think that the person calling was intoxicated. Plaintiff was gone approximately 45 minutes and Burton became concerned and she sent others to look for him and called the room and spoke to two different individuals about plaintiff’s whereabouts. Their answers made her further concerned, but plaintiff then returned to the dining room. He was emotionally upset and he told Burton what had occurred.

Plaintiff testified on deposition that the first six-pack of beer was delivered to the guest room without incident. Only one person was in the room, who plaintiff believed was intoxicated. When he returned the second time, two men were in the room. When he attempted to leave, one of the men blocked his exit. He was threatened and subjected to deviate sexual assault by both men.

At the outset, we would note that we express no opinion whether plaintiff’s injuries were received out of and in the course of his employment so that his exclusive remedy would be under the Workers’ Compensation Act. (See Ferguson v. Roundtable Motor Lodge (1980), 83 Ill. App. 3d 331, 404 N.E.2d 1039; Bloom v. Industrial Com. (1975), 61 Ill. 2d 248, 335 N.E.2d 423.) The trial court rejected this contention and declined to certify this question for review under Supreme Court Rule 308. Nonetheless, the appellee may advance any argument supported by the record to sustain the judgment of the trial court (Peterson v. Norfolk & Western Ry. Co. (1976), 42 Ill. App. 3d 570, 356 N.E.2d 391), and the reviewing court may affirm the trial court when justified in law for any reason (73 Ill. 2d R. 366(a)(5)). We decline to address this issue, however, inasmuch as it was never advanced in appellee’s brief and argument as a reason to sustain the judgment of the trial court. See Winston v. Mitchell (1977), 53 Ill. App. 3d 206, 368 N.E.2d 460.

In a memorandum decision, the trial court stated:

“The general rule of law applicable to these circumstances is that a person has no duty to anticipate the criminal misconduct of third parties and to protect against them. (See Prosser, Torts Section 33 (1971). This rule may be explained in terms of no legal duty being imposed, or that such omission is no negligence as it is not a foreseeable injury. Actually, it would seem that there is no duty to foresee criminal misconduct. However, if it is reasonably foreseeable, then it cannot be ignored. See 65 C.J.S. Negligence Section III.

In this case, the plaintiff argues that the risk of injury was sufficiently foreseeable to impose a duty of care on the defendants. The plaintiff states [in] his brief:

‘When two queers get a young boy in a room by themselves, where one of the queers is drunk and much larger than the boy, it certainly is not unforseeable, as a matter of law, that the larger, drunk queer will try to do something to the boy.’
Certainly, the suggested threat is possible — if it had occurred in a penitentiary — it would be ‘reasonably’ foreseeable. However, is it reasonably foreseeable under the circumstances described? I must conclude that it is not.
The criminal conduct in this case is bizarre and most unusual— certainly less common than a rape of a female by a male. This more common sexual attack seldom occurs within the range of hearing of other motel guests and even more infrequently would the perpetrator have his wife or girlfriend present to witness the occurrence. Nothing about these circumstances, even after combining the knowledge of the various employees of the defendants, would warn a reasonably prudent man of the subsequent danger. In addition, to require employees to constantly compare information would create an impossible burden — or, simply make the employer an insuror.”

The plaintiff argues that it was evidence of negligence on the part of the defendant that the minor plaintiff, as part of his duties, was directed to serve the six-packs of beer to the guest room in the motel and that the criminal attack upon the plaintiff which caused his injuries cannot be said to be unforeseeable as a matter of law, citing the established principle of Illinois law that questions of proximate causation are ordinarily questions of fact for the jury. (Felty v. New Berlin Transit Inc. (1978), 71 Ill. 2d 126, 374 N.E.2d 203; Davis v. Marathon Oil Co. (1976), 64 Ill. 2d 380, 356 N.E.2d 93.) However, these cases involve intervening negligent acts of third parties which were not unforeseeable as a matter of law. Where the harm is caused by the criminal conduct of third parties, special considerations obtain. See Restatement (Second) of Torts secs. 448, 449 (1965).

The general rule is that one has no duty to control the criminal conduct of a third person to prevent him from causing physical harm to another (Boyd v. Racine Currency Exchange, Inc. (1973), 56 Ill. 2d 95, 306 N.E.2d 39), unless a special relation exists between the actor whose negligent conduct creates the risk and the third person which imposes a duty upon the actor to control the third person’s conduct, or a special relation exists between the actor and the person injured. Fancil v. Q.S.E. Foods, Inc. (1975), 60 Ill. 2d 552, 328 N.E.2d 538; Cross v. Chicago Housing Authority (1979), 74 Ill. App. 3d 921, 393 N.E.2d 580; Restatement (Second) of Torts sec. 315 (1965).

Special relationships between defendants and the person causing harm by criminal conduct giving rise to a duty include parent-child, master-servant, possessor of land-licensee and a person in charge of another having dangerous propensities. (Restatement (Second) of Torts secs. 316-319 (1965).) The relationship of proprietor-guest is not such a special relationship. Special relationships between the actor and the person suffering harm include common carrier-passenger, possessor of land-invitee and innkeeper-guest. Restatement (Second) of Torts sec. 314A (1965).

Whether the relationship of employer-employee is such a special relation imposing a duty on the employer to protect the employee against the criminal misconduct of another has not been clearly established in Illinois or elsewhere. (See, e.g., Hosein v. Checker Taxi Co. (1981), 95 Ill. App. 3d 150, 419 N.E.2d 568; Thomas v. General Electric Co. (1973), Tenn., 494 S.W.2d 493.) The Restatement (Second) of Torts sec. 302B, comment e(B), at 90 (1965), lists the employer-employee relation as such a special relation as does comment a to section 314A (at 119). However, the employer must have knowledge of the danger to the employee (sec. 314B), as the employer is not liable where he neither knows or should know of an unreasonable risk to his employee and “is not required to take precautions against a sudden attack from a third person which he has no reason, to anticipate * * Restatement (Second) of Torts sec. 314A, comment e, at 120 (1965).

Even though this special relation of employer-employee may impose a duty of care on the employer to guard against and protect the employee against the criminal acts of others, the possibility of some criminal act, though not necessarily the precise act, must be reasonably foreseeable before the failure of the employer to take reasonable precautions to protect the employee against harm may be said to be negligent (Restatement (Second) of Torts sec. 302B, comment f, at 93 (1965)). Reasonable foreseeability may be considered to be a prerequisite to the imposition of a duty on the employer (see, e.g., Taylor v. Hocker (1981), 101 Ill. App. 3d 639, 428 N.E.2d 662; Gill v. Chicago Park Dist. (1980), 85 Ill. App. 3d 903, 407 N.E.2d 671), or it may be prerequisite to a breach of duty, that is negligence (see Burks v. Madyun (1982), 105 Ill. App. 3d 917). Under either analysis, the result would be the same. In Taylor, plaintiffs were stabbed by an unknown assailant on the parking lot of a shopping center upon returning to their car after shopping. They alleged that the owner of the shopping center was negligent in failing to provide security and adequate lighting and failing to warn of the danger of assault. We sustained the judgment of the trial court in granting summary judgment for defendant. No similar criminal acts had ever occurred on the parking lot or at the shopping center. We concluded that defendant had no notice or knowledge of previous criminality so as to give rise to a duty to protect patrons from criminal acts of third parties. We quoted with approval Professor Prosser that liability should be imposed “only if the defendant is negligent in not guarding against the possible crime — which is to say, if the foreseeable risk is an unreasonable one, in light of the burden of taking precautions.” (Prosser, Torts sec. 33, at 175-76 (4th ed. 1971).) So, regardless of the form of legal analysis, before liability may attach, the occurrence must be reasonably foreseeable; however, foreseeability alone is not sufficient. Before imposing a duty on defendant, the likelihood of injury, the magnitude of the burden of guarding against it and the consequence of placing that burden on defendant must also be taken into account. Cross v. Chicago Housing Authority (1979), 74 Ill. App. 3d 921, 393 N.E.2d 580.

Looking to the allegations of plaintiff’s complaint and considering these in light of the admitted facts developed on discovery, we do not believe that the employer has done anything which subjected plaintiff to an unreasonable risk of harm or failed to do anything to protect plaintiff from a reasonably foreseeable risk of harm, even assuming a duty of reasonable care was owed to plaintiff because of the employer-employee relationship. We find nothing in the facts established, considered in their light most favorable to plaintiff, that would put defendant on notice that the motel guests who assaulted plaintiff presented a special risk or danger to plaintiff in taking room-service orders to the rooms in which they were registered. From hindsight, every occurrence is foreseeable, but we agree with the trial court that defendant could not reasonably anticipate what occurred here as the criminal conduct was “bizarre and most unusual.”

The complaint alleges that defendants were negligent in directing plaintiff to serve alcoholic liquor in violation of an ordinance of the City of Marion, in failing to provide plaintiff with a safe place to work and in failing to control the conduct of the motel guests who assaulted plaintiff. As to the general allegation that defendant failed to provide plaintiff with a safe place to work, this, without more, as noted in Thomas v. General Electric Co. (Term. 1973), 494 S.W.2d 493, would make plaintiff’s claim cognizable under the Workers’ Compensation Act. As to the failure of defendant to control the conduct of the guests, there are no allegations that any prior criminal attacks or acts of any kind had occurred at the motel which would alert defendant of any danger to anyone or that defendants were put on notice of any criminal propensities of the guests registered at the hotel or of anything that would alert them of the possibility of a criminal assault on plaintiff. The guests who assaulted plaintiff were homosexuals and one may have been intoxicated. These facts would not, however, bring this case within the rule of Neering v. Illinois Central R.R. Co. (1943), 383 Ill. 366, 50 N.E.2d 497, which involved the special relation of common carrier-passenger. There, tramps and hoboes were allowed to congregate in defendant’s station house. Plaintiff had repeatedly complained to defendant’s station agent about their presence. Plaintiff, while waiting for a train, was attacked by one of these persons that the court characterized as vagrants and lawbreakers. No data has been cited that suggests that homosexuals as a class are dangerous or more prone to violence than any class in the general population. It is difficult to propose reasonable precautions an employer would be required to take to guard against the possibility of criminal assaults on employees of this type of business.

Plaintiff argues that the ordinance of the City of Marion prohibits minors from serving alcoholic beverages, that the defendants violated the ordinance and this violation is evidence of negligence. The ordinance provides that it is unlawful for any person under 21 years of age to draw, pour, mix or serve any alcoholic liquors as an employee of any licensee. In view of section 12 of article VI of the Illinois Dramshop Act (Ill. Rev. Stat. 1979, ch. 43, par. 131), which expressly authorizes minors under 21 years to possess alcoholic beverages when making delivery pursuant to employment, it is doubtful that the ordinance of the City of Marion, which does not expressly prohibit delivery, was intended to prohibit the type of employment activity involved here. It is not suggested that plaintiff was an illegally employed minor. The purpose of the ordinance would seem to be to prohibit the employment of a minor in a licensed premises. In any event, not every violation of a statute or municipal ordinance is evidence of negligence. The statute or ordinance may not prescribe duties for the protection of persons or property or the harm suffered may not be the kind which the statute or ordinance was intended to prevent. (Prosser, Torts sec. 35, at 195-97 (4th ed. 1971).) We conclude that the purpose of the ordinance was to protect minors from the evils considered to be associated with the consumption of alcoholic beverages by removing them from places where liquor is served and thus from the temptation to consume alcoholic beverages. The violation of the ordinance here, if any, cannot be said to be related to or a proximate cause of the criminal assault that occurred. In short, we do not believe that the violation of this ordinance had any nexus or causal connection with plaintiff’s injury, which could have occurred in any event had he delivered a food order and no alcoholic beverage to his assailants’ room or been sent to this room for any purpose in his employment as a bus boy.

The judgment of the Circuit Court of Williamson County is affirmed.

Affirmed.

JONES, J., concurs.

JUSTICE WELCH,

specially concurring:

In analyzing the plaintiff’s cause of action under the Marion liquor control ordinance, the majority observes that the minor was not employed in violation of that ordinance, which prohibits minors from “drawing, pouring, mixing or serving alcohol.” I do not agree, because I believe that the term “serving” is broad enough to proscribe the conduct of the plaintiff in bringing beer to the motel room. See Hensen v. City of Chicago (1953), 415 Ill. 564, 570, 114 N.E.2d 778, 782; Webster’s Third New International Dictionary 2075, “serve,” definition 5b (1961).

The majority further concludes that, even if the plaintiff were illegally employed, that alone would not indicate that the defendants were negligent, because the sole purpose of the ordinance was to prevent minors from consuming alcoholic beverages. However, it should be recalled that other laws accomplish that result more directly. The liquor business has been described as one “fraught with danger to the community” (Tavern Owners Association of Lake County, Illinois, Inc. v. County of Lake (1977), 52 Ill. App. 3d 542, 547, 367 N.E.2d 748, 751), and that danger is even greater when a minor, who lacks the judgment and experience of an adult, is employed in that business to dispense alcohol. The potentially serious consequences to the minor, as well as to others, of serving alcohol to one who is intoxicated appear to me to have been the kind of injury the ordinance was designed to prevent. Thus, I think that the violation of the ordinance should be considered as evidence of negligence in this case. Barthel v. Illinois Central Gulf R.R. Co. (1978), 74 Ill. 2d 213, 384 N.E.2d 323.

Yet, I must agree with the result reached by the majority because the plaintiff cannot show that his injury was occasioned by his employer’s negligence in allowing him to bring beer to the motel room. Illustrative of this principle is Yerk v. Rockford Coca Cola Bottling Co. (1973), 12 Ill. App. 3d 299, 298 N.E.2d 319. There, a minor who was employed in connection with a bottle sorting machine in violation of section 7 of the Child Labor Act (Ill. Rev. Stat. 1981, ch. 48, par. 31.7) was injured in a fight with a fellow employee. The minor rejected his workers’compensation remedies and brought a common law action, alleging that his employer violated the Child Labor Act. The court noted that while it is true that, but for the minor’s employment at the sorting machine, he would not have been assaulted, this did not give rise to liability under the Act. It was stated that “[a]n analysis of the cases in which recovery has been permitted under the child labor laws indicates that in each case the injury was connected with a danger inherent in the environment in which the minor was illegally placed.” (12 Ill. App. 3d 299, 301, 298 N.E.2d 319, 321.) Such a causal connection was not established in that case, and summary judgment for the defendant was affirmed.

Similarly, the minor in this case brought his action under an enactment which, like the Child Labor Act, was designed “to protect children from engaging in employments where their immaturity, inexperience, and heedlessness might cause them to be injured.” (Beauchamp v. Sturges & Burn Manufacturing Co. (1911), 250 Ill. 303, 311, 95 N.E. 204, 207, aff'd (1914), 231 U.S. 320, 58 L. Ed. 245, 34 S. Ct. 60.) And, it is certainly true that the assault upon the minor was more within the range of injuries to be prevented by the Marion liquor control ordinance than was the assault in Yerk one of the dangers to be prevented by section 7 of the Child Labor Act. Nonetheless, the connection established by the minor in this case is simply that he was assaulted while carrying liquor to the room. He has failed to demonstrate a causal relationship between his employment outside the scope of the Marion ordinance and the attack, which, as the majority notes, could well have occurred had he appeared at the room for any other purpose in his employment. The fact that the article he carried happened to have been beer is not a cause of the plaintiff’s injuries.

Subject to these observations, I concur in the majority’s opinion.


author: JUSTICE KASSERMAN

text:
    NANCY M. BOOKER, Plaintiff-Appellee, v. HUTSONVILLE SCHOOL DISTRICT NO. 1, Defendant-Appellant.
    Fifth District
    No. 81-548
    Opinion filed July 1, 1982.
    David M. Correll, of Robinson, and Miller & Tracy Law Offices, P. C., of Monticello, for appellant.
    Larry Battershell, of Robinson, for appellee.
   JUSTICE KASSERMAN

delivered the opinion of the court:

This is an appeal brought by defendant, Hutsonville School District No. 1, seeking a reversal of the trial court’s finding that plaintiff, Nancy M. Booker, was a full-time teacher within the meaning of section 24 — 11 of the School Code (Ill. Rev. Stat. 1979, ch. 122, par. 24 — 11) and, therefore, entitled to reinstatement to her teaching position.

On August 6, 1980, plaintiff filed a two-count complaint seeking a declaratory judgment that she was a full-time teacher under both section 16 — 106 of the Illinois Pension Code (Ill. Rev. Stat. 1979, ch. 108½, par. 16 — 106) and section 24 — 11 of the School Code, which requires notice of the termination of the employment of probationary and full-time teachers. The case was tried before the court without a jury on September 2, 1981.

Plaintiff testified that in August 1979 she was contacted by defendant regarding possible employment as a kindergarten teacher. She said that defendant, through Kent Anderson, “reasonably assured” her that she would be employed for one year. She was told that for the first 20 days she would receive a substitute teacher’s salary and thereafter would be on the regular teacher pay schedule. She stated that there was no discussion regarding fringe benefits. Plaintiff worked from 8 a.m. to 3:45 p.m. for the full school year of 1979-1980 and received one sick day per month. During the course of the school year, her teaching was evaluated by her principal, Mr. Anderson. She testified that she received no official notice that she would not be re-employed for the following school year; however, she indicated that she knew that the teacher whose position she had taken was to return. On cross-examination, plaintiff said she was told prior to employment that she was filling in for a teacher, Elizabeth Rose Mehler, who was taking a disability leave. She further testified that she was not issued a regular teaching contract.

Mrs. Mehler testified that she estimated that her disability leave would last for one full school year and stated that she intended to return to her teaching duties for the 1980-81 school term.

Mr. Kent Anderson, the principal of the defendant’s elementary schools, testified that plaintiff was hired to work for the 1979-80 school year as a replacement for Mrs. Mehler, who still retained her position under the terms of the disability leave that she had been granted. He said that he told plaintiff that he could provide no security in her job and that her employment would be on a “day-to-day basis.” He said he informed plaintiff that there would be no sick leave, paid retirement, or other benefits. In September, however, the school board granted plaintiff sick leave of one day per month, which was two days more than teachers under contract could receive. He said that sometime in January 1980 he told plaintiff that Mrs. Mehler would be returning to teach the next school year and that plaintiff should seek other employment.

Mr. Gary Matteson, the superintendent of the defendant’s schools, testified that under the temporary disability status granted Mrs. Mehler, the defendant had an obligation to maintain her teaching position for her. He stated that Mr. Anderson was instructed by the school board to find a job applicant to replace Mrs. Mehler who was willing to accept a teaching position on a temporary básis. He said that it was school board policy to pay substitute teachers a salary commensurate with the regular teachers’ pay schedule after 20 days’ service because substitute teachers’ pay was thought to be insufficient. He further testified that special school board action was required to grant plaintiff one day per month sick leave.

On September 21, 1981, the trial court found that plaintiff was a full-time teacher under both section 16 — 106 of the Illinois Pension Code and section 24 — 11 of the School Code. The court ordered that plaintiff be considered to be a full-time teacher under the Illinois Teacher Retirement System for the school year 1979-80 and that she be “deemed to be reemployed for the school year 1980-81.” On appeal defendant seeks reversal of the trial court’s determination that plaintiff was a teacher entitled to notice under the provisions of section 24 — 11 of the School Code and, alternatively, attacks the propriety of plaintiff’s reinstatement as a remedy in the instant case.

Section 24 — 11 of The School Code, in pertinent part, provides:

“Boards of Education — Boards of School Inspectors — Contractual continued service. As used in this and the succeeding Sections of this Article, ‘teacher’ means any or all school district employees regularly required to be certified under laws relating to the certification of teachers, ‘board’ means board of directors, board of education or board of school inspectors, as the case may be, and ‘school term’ means that portion of the school year, July 1 to the following June 30, when school is in actual session. This Section and Sections 24 — 12 through 24 — 16 of this Article apply only to school districts having less than 500,000 inhabitants.
Any teacher who has been employed in any district as a full-time teacher for a probationary period of 2 consecutive school terms shall enter upon contractual continued service unless given written notice of dismissal stating the specific reason therefor, by registered mail by the employing board at least 60 days before the end of such period. * 6 * If, however, a teacher has not had one school term of full-time teaching experience before the beginning of such probationary period, the employing board may at its option extend such probationary period for one additional school term by giving the teacher written notice by registered mail at least 60 days before the end of the second school term of the period of 2 consecutive school terms referred to above. Such notice must state the reasons for the one year extension and must outline the corrective actions which the teacher should take to satisfactorily complete probation.
Any full-time teacher who is completing the first year of the probationary period described in the preceding paragraph, or any teacher employed on a full-time basis not later than January 1 of the school term, shall receive written notice from the employing board at least 60 days before the end of any school term whether or not he will be re-employed for the following school term. If the board fails to give such notice, the employee shall be deemed reemployed, and not later than the close of the then current school term the board shall issue a regular contract to the employee as though the board had reemployed him in the usual manner.
<* # *
Contractual continued service shall continue in effect the terms and provisions of the contract with the teacher during the last school term of the probationary period, subject to this Act and the lawful regulations of the employing board.” Ill. Rev. Stat. 1979, ch. 122, par. 24 — 11.

Initially, it must be determined whether the third paragraph of section 24 — 11 is applicable to the plaintiff. Defendant argues that this particular paragraph of section 24 — 11 was enacted solely for the benefit of probationary teachers and cannot be applied to a teacher such as plaintiff who is serving in a substitute capacity. Plaintiff, on the other hand, points to the language of the third paragraph of section 24 — 11 and argues that the words “any teacher employed on a full-time basis” include a person such as herself who has worked a full school day for a full school year.

Plaintiff correctly contends that the language used in a statute should be given its plain and ordinary meaning. (Franzese v. Trinko (1977), 66 Ill. 2d 136, 139, 361 N.E.2d 585, 587.) However, it is the intent of the legislature which is the touchstone upon which any statutory interpretation must be based (Village of Lombard v. Pollution Control Board (1977), 66 Ill. 2d 503, 507, 363 N.E.2d 814,816), and the literal language of a statute is not controlling where the object and purpose of the legislature is clearly ascertainable. Continental Illinois National Bank & Trust Co. v. Illinois State Toll Highway Com. (1969), 42 Ill. 2d 385, 395, 251 N.E.2d 253, 259.

The intent of the legislature in enacting section 24 — 11 of The School Code was recently discussed by our supreme court in Johnson v. Board of Education (1981), 85 Ill. 2d 338, 423 N.E.2d 903. There the court stated:

“The dispositive factor in our consideration is a determination of the intent of the legislature in enacting sections 24 — 11 and 24 — 12 of the School Code. One objective of teacher tenure is ‘to assure continuous service on the part of teachers of ability and experience.’ (Lenard v. Board of Education (1979), 74 Ill. 2d 260, 268.) The tenure system is, we believe, intended to provide continuity and stability for students; provide some degree of job security, thus affording teachers the ability to pursue a career free from arbitrary hiring and firing; attract teachers of high quality; and retain experienced teachers. Since, however, the statutes create liabilities where none would otherwise exist, they must be strictly construed in order not to unduly interfere with the responsibility of local boards to efficiently operate the educational systems. Illinois Education Association Local Community High School District 218 v. Board of Education (1975), 62 Ill. 2d 127.
Section 24 — 11 focuses on the notice of dismissal as the operative fact in preventing tenure from arising. The statute gives teachers considerable protection, since it requires that the board take action in order to prevent tenure and treats silence as resulting in tenure. 0 0 (85 Ill. 2d 338, 344, 423 N.E.2d 903, 906.)

Therefore, while section 24 — 11 affords teachers protection against arbitrary and capricious action on the part of a school board, it must be strictly interpreted so as to allow local school boards to operate with some flexibility. Applying these principles to the instant case, we conclude that the school board was justified in its belief that compliance with the third paragraph of section 24 — 11 was not necessary.

It has been observed that the third paragraph of section 24 — 11 was intended to protect “full-time probationary teachers.” (Bessler v. Board of Education (1976), 43 Ill. App. 3d 322, 326, 356 N.E.2d 1253, 1256, affd in part & rev’d in part (1977), 69 Ill. 2d 191, 370 N.E.2d 1050.) We agree with this observation and conclude that a teacher without probationary status is not covered by the notice provisions found in the third paragraph of section 24 — 11.

We are of the opinion that the status of a probationary teacher is separate and distinct from that of a substitute teacher. (Cf. People ex rel. Thomas v. Board of Education (1963), 40 Ill. App. 2d 308, 313, 188 N.E.2d 237, 240.) A probationary teacher’s employment “ ‘will ripen into a permanent position.’ ” (Strejcek v. Board of Education (1979), 78 Ill. App. 3d 400, 403, 397 N.E.2d 448, 451.) Conversely, although the School Code of Illinois is silent on the subject, a substitute teacher is generally regarded as one employed on a temporary basis as a replacement for a regular teacher. (See Amos v. Board of School Directors (E.D. Wis. 1976), 408 F. Supp. 765, 795; Wood v. Los Angeles City School District (1935), 6 Cal. App. 2d 400, 402, 44 P.2d 644, 645.) Since the statute in question makes no mention of substitute teachers, we cannot, in light of the requirement that we strictly construe such provision, include some teachers within its provisions. Therefore, if plaintiff cannot be said to be a probationary teacher, she was not entitled to the protection afforded by section 24 — 11.

Upon the facts before us, we conclude that plaintiff was a substitute teacher and did not obtain the status of a probationary teacher. Both plaintiff and her principal testified that plaintiff was employed as a temporary replacement for a regular teacher on disability leave. Indeed, Mr. Anderson stated that he made it clear to plaintiff that she was employed “on a day-to-day basis.” The fact that plaintiff felt “reasonably assured” that her employment would continue for a full year does not alter the temporary nature of her employment. The testimony establishes that, although she received the higher salary of a permanent or probationary teacher in accordance with school board policy, plaintiff did not receive the benefits of permanent or probationary employment and was not given a regular teaching contract. Considering plaintiff’s unique treatment and, more importantly, her own recognition of the fact that she was employed merely as a replacement for a regular teacher, we find that plaintiff was a substitute teacher whose employment would terminate upon the return of the teacher whom she replaced.

Since we find that the trial court erroneously applied section 24 — 11, we need not consider whether the remedy granted below was appropriate. Therefore, the judgment of the circuit court of Crawford County is reversed.

Reversed.

JONES and HARRISON, JJ., concur.


author: JUSTICE O’CONNOR

text:
    JEROME SHELBY, Plaintiff-Appellee, v. SUN EXPRESS, INC., et al., Defendants.—(THE DEPARTMENT OF TRANSPORTATION, Intervenor-Appellant.)
    First District (1st Division)
    No. 81-0812
    Opinion filed June 7, 1982.

      Tyrone C. Fahner, Attorney General, of Chicago (Kathleen M. Lien, Assistant Attorney General, of counsel), for appellant.
    Fred Lambruschi, of Chicago (Herbert P. Veldenz, of counsel), for appellee.
   JUSTICE O’CONNOR

delivered the opinion of the court:

The Illinois Department of Transportation appeals from a portion of an order of the circuit court of Cook County denying immediate reimbursement from the settlement of a personal injury claim of the amount of workmen’s compensation paid by it to its employee and also denying it interest on the amount of that compensation. We affirm.

Plaintiff Jerome Shelby, an employee of the Illinois Department of Transportation (Department), while working on a highway resurfacing crew, was struck by a vehicle driven by defendant Gene Aikman, an agent of defendant Sun Express. Plaintiff sustained severe personal injuries for which he sued defendants. Subsequently he settled his claim for $900,000. The Department intervened to secure reimbursement from the settlement of the amount of workmen’s compensation benefits it had paid up to that time. These totaled $126,987.11. The Department also sought interest thereon.

After several hearings and modifications of prior orders, the circuit, court ordered:

“It is therefore ordered that the Defendants, SUN EXPRESS, INC. and GENE AIKMAN, shall pay the gross amount of $900,000.00 in the form of two separate checks, one check in the sum of $773,012.89 payable to Jerome Shelby and Gladys Shelby, his wife, and their attorney, Fred Lambruschi. The second check in the sum of $126,987.11 payable to Jerome Shelby and Gladys Shelby, his wife, their attorney, Fred Lambruschi and the State of Illinois, Department of Transportation. Said sums shall be deposited into two Court Approved Restricted Trust Accounts at the LaSalle National Bank of Chicago and the beneficiaries of said trusts shall be designated as Jerome Shelby and Gladys Shelby, his wife, Attorney Fred Lambruschi, and the State of Illinois, Department of Transportation.
The interest that accrues from said trust account in the principal sum of $773,012.89 is to be paid directly to Jerome Shelby and Gladys Shelby, his wife, on demand without further order of this Court during the pendency of this cause of action. The interest in the second account in the principal sum of $126,987.11 shall accrue and not be subject to any distribution to any of the parties until a determination is made by the Appellate Court of Illinois as to which of the parties is entitled to the funds that are created by virtue of said interest payments.
# # #
As previously stated by these court orders, this Court does retain full and complete jurisdiction of this matter and of the said trust accounts until such time as the Workmen’s Compensation claim has been terminated and at that time upon application to this Court the Court will order such sums be distributed to the plaintiff, Jerome Shelby and Gladys Shelby, his wife, and their attorney, Fred Lambruschi, and the Department of Transportation of the State of Illinois in full and final discharge of the rights of all parties as is then determined by this Court.”

The Department contends that it is entitled to immediate reimbursement from the settlement fund for the amount of workmen’s compensation it has paid to its employee and that it is entitled also to interest on that portion of the settlement representing the amount of those workmen’s compensation benefits paid, where the settlement fund has been invested and before payment has been disbursed.

Section 5(b) of the Workmen’s Compensation Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.5(b)) provides in pertinent part:

“(b) Where the injury or death for which compensation is payable under this Act was caused under circumstances creating a legal liability for damages on the part of some person other than his employer to pay damages, then legal proceedings may be taken against such other person to recover damages notwithstanding such employer’s payment of or liability to pay compensation under this Act. In such case, however, if the action against such other person is brought by the injured employee or his personal representative and judgment is obtained and paid, or settlement is made with such other person, either with or without suit, then from the amount received by such employee or personal representative there shall be paid to the employer the amount of compensation paid or to be paid by him to such employee or personal representative including amounts paid or to be paid pursuant to paragraph (a) of Section 8 of this Act.
Out of any reimbursement received by the employer pursuant to this Section, the employer shall pay his pro rata share of all costs and reasonably necessary expenses in connection with such third-party claim, action or suit and where the services of an attorney at law of the employee or dependents have resulted in or substantiaHy contributed to the procurement by suit, settlement or otherwise of the proceeds out of which the employer is reimbursed, then, in the absence of other agreement, the employer shall pay such attorney 25% of the gross amount of such reimbursement.
If the injured employee or his personal representative agrees to receive compensation from the employer or accept from the employer any payment on account of such compensation, or to institute proceedings to recover the same, the employer may have or claim a lien upon any award, judgment or fund out of which such employee might be compensated from such third party.”

The Department argues that the language of this section with reference to a suit brought by an injured employee against a third person for the injuries sustained, “[i]n such case, however, if * * * judgment is obtained and paid, or settlement is made e e °, then from the amount received by such employee * * * there shall be paid to the employer the amount of compensation paid or to be paid by him to such employee * ° requires that there be immediately paid to the Department from the settlement fund the amount it had already expended at the time of intervention, less its pro rata share of all costs and reasonably necessary expenses and attorney fees. We disagree.

We agree with the Department that the word “then” following “in such case” in the above-quoted provision is an adverb of time and not a reference to a preceding event. Strain v. Sweeny (1896), 163 Ill. 603, 608, 45 N.E. 201; Tolley v. Wilson (1939), 371 Ill. 124, 133-34, 20 N.E.2d 68; Sloan v. Beatty (1953), 1 Ill. 2d 581, 591, 116 N.E.2d 375.

The statute thus provides, with reference to the facts before us, that after the employee had received the settlement the Department shall be paid; but it does not state the precise time at which that payment is to be made. The word “shall,” while ordinarily mandatory, does not in the context of the Workmen’s Compensation Act require immediate reimbursement for the compensation benefits already paid. The above-quoted language refers to amounts both “paid or to be paid.” The Department recognizes that the future amounts “to be paid” of necessity have to wait until disbursement to be ascertainable and reimbursable. They can only be determined at the conclusion of the proceedings before the Industrial Commission, which at the time of the Department’s intervention had not been determined. Because the statute does not explicitly provide for immediate reimbursement of benefits already paid when a settlement is received and because the Department’s right to reimbursement here both for past and future payments is completely protected by its lien, we find that no disbursement to the Department should be made until the Industrial Commission has made its determination. At that time disbursement can be made for both past and future benefits, with proper deductions for court costs and attorney fees. See Vandygriff v. Commonwealth Edison Co. (1979), 68 Ill. App. 3d 396, 386 N.E.2d 318; Denius v. Robertson (1981), 98 Ill. App. 3d 83, 424 N.E.2d 336, appeal denied (1981), 85 Ill. 2d 577.

Although an employer’s right to intervene in a pending personal injury suit to secure reimbursement for workmen’s compensation benefits paid to an employee does not require proceedings before the Industrial Commission in order to give it a right to intervene (Neal v. Independent Boiler & Tank Co. (1970), 119 Ill. App. 2d 440, 256 N.E.2d 38), that fact alone does not determine at what time payment of reimbursement is required to be made.

We also disagree with the Department’s contention that it, as employer, is entitled to interest on that portion of the settlement representing benefits already paid to the employee, when the settlement fund has been invested and before payment has been disbursed to the employer. The Department’s contention is based on the argument that the portion of the settlement (less attorney fees and costs) representing the benefits already paid by it is its money now and that not to pay it immediately to the Department unjustly enriches the employee to the amount of the interest received by the employee on that amount. We are not persuaded by the Department’s argument.

It is well settled that, in the absence of a contract or statutory provision, interest is not recoverable. Neubert v. Foxworthy (1979), 71 Ill. App. 3d 438, 389 N.E.2d 898.

In Kirk v. Walter E. Deuchler Associates, Inc. (1981), 96 Ill. App. 3d 99, 420 N.E.2d 1124, the employer’s insurer sought reimbursement for workmen’s compensation benefits paid by it, plus interest on its share of the recovery, from the date judgment was entered against the third-party tortfeasor. The trial court allowed reimbursement of the benefits paid, less deductions for costs and attorney fees, but denied the claim for interest. The appellate court affirmed. It pointed out that reimbursement was not due until the judgment had been paid and that section 5(b) made no provision for interest. The court stated:

“We conclude that if interest is to be allowed on the portion of a workers’ compensation payment which is recovered from a third party the legislature should clearly state that the payer of workers’ compensation benefits pays them only contingently and when they are recovered is entitled to them back together with interest. The legislature, however, has merely provided that the employer or his carrier shall have a lien until a judgment is recovered against the third party and paid.” 96 Ill. App. 3d 99, 101.

The payment of the settlement amount in the case before us is, under the language of section 5(b), the equivalent of the payment of a judgment. But, as the court observed, that section, the only basis for recovery of the compensation benefits paid, makes no provision for interest.

With reference to the Department’s claim of unjust enrichment, the court in Kirk, while noting that statutes in other states may require a different conclusion, stated with reference to the Illinois Workmen’s Compensation Act:

“The argument of [the employer’s insurance carrier] based on fundamental fairness is not persuasive in view of the statutory enactment.
There is nothing in the statute or the policies behind the Workers’ Compensation Act to indicate that the legislature intended to allow employers interest in these situations. The purpose of the Act is to provide compensation to accidentally injured employees. Compensation to an employee being the primary purpose, the Act also allows employers reimbursement rights where a third party is the actual tortfeasor. But the Act limits reimbursement to the amounts paid, payable only when a judgment against the third party has been satisfied.” 99 Ill. App. 3d 99,101.

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

Affirmed.

CAMPBELL, P. J., and McGLOON, J., concur.

       Now “Workers’.” Pub. Act 81-992, effective Jan. 1,1980.


author: JUSTICE LINN PRESIDING JUSTICE JOHNSON,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KEVIN SUMNER, Defendant-Appellant.
    First District (4th Division)
    No. 81-1255
    Opinion filed June 10, 1982.
    JOHNSON, P. J., dissenting.
    James J. Doherty, Public Defender, of Chicago (Thomas F. Bomba and John Kalnins, Assistant Public Defenders, of counsel), for appellant.

      Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Ruth Stern Geis, and Anthony John Calabrese, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LINN

delivered the opinion of the court:

Defendant Kevin Sumner was charged with deceptive practices (Ill. Rev. Stat. 1979, ch. 38, par. 17 — 1(B) (d)) for knowingly issuing a check in an amount greater than his account balance. Following a bench trial in the circuit court of Cook County, he was found guilty, sentenced to one year’s probation, and fined $310. On appeal, Sumner contends that because the prosecution failed to contradict any part of his affirmative defense or to impeach his credibility, the State did not prove beyond a reasonable doubt that, at the time of the transaction, he had the statutorily required intent to defraud.

Our review of the record compels us to conclude that the State has not met its burden of proof. Accordingly, we reverse the judgment of conviction of the trial court.

The corroborated facts pertinent to this appeal show that on April 30, 1980, Kevin Sumner contracted with Fanning Cadillac (Fanning) to purchase a 1980 Coupe de Ville at a listed cash price of $15,581.52. As consideration, he traded in a 1978 Mercury Cougar, paid $700 cash, wrote a check for $2,100, and signed a financing agreement to cover the balance of the purchase price, approximately $18,000, thus promising to pay a total of $21,659 for the car. On April 30, 1980, when Sumner issued the $2,100 check, he knew he did not have sufficient funds in his account to cover it.

On May 2, 1980, following a discussion with his brother concerning the finance and insurance charges that had been added to the cash price of the car, Sumner asked Fanning to take back the car and cancel the deal. Fanning refused. On May 29,1980, when Sumner’s check for $2,100 was presented at his bank for payment, his account contained a balance of $50.15; the check was stamped “Insufficient Funds” and returned to the Fanning dealership. Thereafter, based on Fanning’s complaint, the subject criminal proceedings charging Sumner with a deceptive practice were instituted.

The pertinent statute (Ill. Rev. Stat. 1979, ch. 38, par. 17 — 1(B) (d)) reads as follows:

“B. General Deception
A person commits a deceptive practice when, with intent to defraud:
* « «
(d) with intent to obtain control over property or to pay for property, * * * he issues or delivers a check or other order upon a * * * depository for the payment of money, knowing that it will not be paid by the depository. Failure to have sufficient funds or credit with the depository when the check or other order is issued or delivered is prima facie evidence that the offender knows that it will not be paid by ■ the depository, and that he has the intent to defraud;
* # ft »

The only issue presented on appeal is whether Sumner was proved guilty of a deceptive practice beyond a reasonable doubt. The State contends that because Sumner knew on both the date of issuance and the date of presentment of the $2,100 check that his account contained insufficient funds, he was guilty of a statutorily defined deceptive practice and therefore properly convicted by the trial court. The State maintains that Sumner’s conviction should be affirmed because his own testimony and bank records supported each other in showing that he did not have adequate funds on deposit in his checking account on either the date of issuance or the date of presentment; therefore, the prosecution asserts it has presented all the evidence necessary to fulfill the statutory requirements for a prima facie case of deceptive practices.

Sumner, while agreeing that the State presented enough evidence to establish a statutorily adequate prima facie case, argues that his own testimony was legally sufficient to establish a reasonable defense showing that he lacked the necessary intent to defraud. Therefore, Sumner claims, the presumption of guilt established by the State’s prima facie case was rebutted, and the prosecution was required to refute his defense by presenting convincing proof that Sumner had the requisite intent to defraud when he issued the check in question. We agree with Sumner.

The language of the deceptive practices statute (Ill. Rev. Stat. 1979, ch. 38, par. 17 — l(B)(d)) clearly states that a deceptive practice is a specific intent crime, that is, a person who writes and delivers a check knowing the account balance is deficient or that the bank will not pay the check when presented is guilty of a deceptive practice only if the check is written with the specific intent to defraud the recipient. Writing a check on insufficient funds but without that specific intent may violate some other law, but it does not constitute the crime here charged.

In his defense, Sumner testified that although at the time he wrote, the check he knew his account balance was insufficient, he intended to and did deposit enough money the next day to make up the deficiency. However, after reconsidering his purchase in light of the finance charges and unsuccessfully attempting to rescind the contract with Fanning, he withdrew the money he had deposited in order to forestall Fanning from cashing his check. He therefore contends that he did not violate the statute because he had no intent to defraud at the time he wrote the check.

We initially note that the offense of deceptive practices is complete at the moment of making, delivering, or uttering the check. (People v. Cundiff (1973), 16 Ill. App. 3d 267, 305 N.E.2d 735.) Consequently, if the State does not prove that all elements of the crime existed at that moment, then the defendant may not be found guilty of the crime charged. The defendant here has presented testimony which, if believed by the finder of fact, would negate the existence of one essential element, the specific intent to defraud. “[The statute] places a burden on the State to prove the element of ‘intent to defraud’ beyond a reasonable doubt. This section also requires the State to prove the check was drawn while the drawer knew it would not be paid by the depository. Failure to have sufficient funds in the depository when the check is issued is prima facie evidence the offender knows it will not be paid, but is not prima facie evidence of intent to defraud.” (Emphasis added.) People v. Dennis (1976), 43 Ill. App. 3d 518, 520-21, 57 N.E.2d 563, 565.

It is clear, therefore, that once the defendant presents a reasonable, probable defense, the fundamental presumption of innocence until proven guilty precludes the trier of fact from simply ignoring the exculpatory testimony. (People v. Harling (1975), 29 Ill. App. 3d 1053, 331 N.E.2d 653.) We find it significant that the prosecution introduced into evidence bank records carefully selected to show Sumner’s balance five days before the check was issued (the closing date for March) and his balance over a month later after the check was presented for payment (up to the closing date for May), but nothing in between. The bank records covering that crucial month would have proved conclusively whether or not Sumner had made the deposit to his checking account as he claimed.

It was not Sumner’s duty to present his deposit slip dated April 1, 1980, but the State’s duty to prove him guilty beyond a reasonable doubt. Once Sumner presented his defense, evidence of lack of intent to defraud, the State had the additional burden of proving him guilty on that issue as well. (People v. Harling (1975), 29 Ill. App. 3d 1053, 331 N.E.2d 653.) The State’s evidence, displaying as it does a conspicuous gap covering the specific dates on which Sumner testified he deposited and then withdrew the money from his checking account, obviously does nothing to rebut the defense. Sumner’s defense, therefore, stands uncontradicted. “Where acts or circumstances are attributable to either an innocent or a criminal cause, the innocent hypothesis will be adopted.” People v. Everhart (1974), 22 Ill. App. 3d 727, 732, 317 N.E.2d 720, 724.

Additionally, we note another significant fact, ignored by the State, which tends to negate the existence of specific intent to defraud. Unlike defendants in most cases prosecuted under the deceptive practices statute, Sumner had tendered other value for the purchased car in addition to the dishonored check. The fact that Sumner traded in his two-year-old car as well as paying over a substantial amount of cash tends to support his defense that he had no intent to defraud at the time he issued the check.

It is clear that the intent to defraud is a distinctly different mental state from knowledge that the check will not be paid. An example of the difference is the writing of a check for more than the account balance but with the intent to deposit funds to cover it. “In such cases there is no intent to defraud, nor can it be inferred from the issuer’s knowledge that his check is not good. Similarly, one cannot infer that because payment on a check was later stopped, the drawer issued it. intending to defraud the payee.” People v. Ogunsola (1981), 87 Ill. 2d 216, 221, 429 N.E.2d 861, 864.

Although it is true that the findings of the trier of fact, including conclusions concerning the credibility of witnesses, are entitled to “great weight” (People v. Williams (1976), 65 Ill. 2d 258, 268, 357 N.E.2d 525, 530), “if there is any reasonable hypothesis arising from the evidence consistent with the innocence of the defendant it must be accepted.” People v. Dennis (1976), 43 Ill. App. 3d 518, 521, 357 N.E.2d 563, 565.

In light of all the above, the judgment of the trial court is reversed.

Reversed.

ROMITI, J., concurs.

PRESIDING JUSTICE JOHNSON,

dissenting:

I would affirm the decision of the trial court. The statute defining deceptive practices provides that failure to have sufficient funds when the check is delivered is prima facie evidence that the offender knows it will not be paid by the depository, and he has intent to defraud (Ill. Rev. Stat. 1979, ch. 38, par. 17 — 1(B)(d)). I think the prosecution proved beyond a reasonable doubt that at the time of the transaction defendant had the statutorily required intent to defraud.

The record revealed that when Sumner issued the $2,100 check he knew he did not have sufficient funds in his account to cover it. Further, when the check was presented for payment, it was stamped “Insufficient Funds” and returned to Fanning. Sumner argues that his own testimony was legally sufficient to establish a reasonable defense showing he lacked the necessary intent to defraud, thus, requiring the State to refute his defense. I disagree with defendant’s analysis.

The question of whether or not a defendant has an intent to defraud is one for the trier of fact to determine upon consideration of all the circumstances in the case — not alone on defendant’s declaration of his intent. (People v. Lundblade (1981), 95 Ill. App. 3d 474, 478, 420 N.E.2d 784, 786.) The testimony thus presented a conflict between the State’s evidence and defendant’s declaration which was the function of the judge to resolve, having an opportunity to observe the witnesses and their credibility. The judge obviously chose not to believe the testimony of defendant.

I believe the State was not required to show that defendant deposited funds in the bank but later withdrew them. The trier of fact found against defendant, and I would affirm his finding.

       The contract Sumner signed specifically stated that the seller (Fanning) reserved a security interest in the car, as provided by the Uniform Commercial Code. Section 9 — 503 of. the Code (Ill. Rev. Stat. 1979, ch. 26, par. 9 — 503) states that in a case of buyer default, the seller may repossess the collateral without judicial process if no breach of the peace results. If a breach of the peace is likely, a properly instituted civil action is the appropriate remedy. In effect, what Fanning has done is force the State to act as its collection agent.


author: JUSTICE HARTMAN

text:
    JAMES KUPIANEN, JR., by James Kupianen, Sr., his Father and Next Friend, Plaintiff, v. ELAINE GRAHAM, Adm’r of the Estate of Kimberly Hovanes, Deceased, et al., Defendants.—(ELAINE GRAHAM, Adm’r of the Estate of Kimberly Hovanes, Deceased, Cross-Plaintiff-Appellant, v. THE VILLAGE OF PALOS PARK et al., Cross-Defendants-Appellees.)
    First District (2nd Division)
    No. 81-1317
    Opinion filed June 8, 1982.

      Walter M. Ketchum, Ltd. and Law Offices of Jeffrey A. Kripton, both of Chicago (Jeffrey A. Kripton, of counsel), for appellant.
    Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (D. Kendall Griffith, Tracy C. Beggs, and Thomas S. White, of counsel), for appellees.
   JUSTICE HARTMAN

delivered the opinion of the court:

James Kupianen was an occupant in a vehicle driven by Kimberly Hovanes when it collided with a Palos Park police vehicle driven by John Grigas at the intersection of 123d Street and 86th Avenue in Palos Park, Illinois, on July 8, 1978. Kimberly Hovanes died thereafter and an estate was opened in her behalf with Elaine Graham named as her administrator. Kupianen filed a complaint against Graham, the Village of Palos Park (sometimes “Village”) and Grigas for personal injuries. Graham filed an answer denying responsibility for Kupianen’s injuries and filed a counterclaim in three counts against the Village of Palos Park and Grigas. Counts I and II of the counterclaim alleged negligence against the Village of Palos Park and Grigas. These counts are not at issue. Count III of the counterclaim alleged wilful and wanton misconduct against the Village and Grigas and requested relief in the form of both compensatory and punitive damages. On motion of the Village and Grigas, pursuant to section 45 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 45), count III was dismissed with prejudice on the ground that punitive damages are not recoverable under the Illinois “Survival Act” (Ill. Rev. Stat. 1979, ch. 110½, par. 27 — 6, formerly 1975, ch. 3, par. 339), and the Illinois Wrongful Death Act (Ill. Rev. Stat. 1979, ch. 70, par. 1 etseq.).

Thereafter Graham moved to vacate the order of dismissal and sought to amend count III by deleting punitive damages from the ad damnum, which motion was denied on the ground that a cause of action for wilful and wanton misconduct is precluded under the Wrongful Death Act by the holding of the supreme court in Mattyasovszky v. West Towns Bus Co. (1975), 61 Ill. 2d 31, 330 N.E.2d 509 (hereinafter “Mattyasovszky”). From this order of dismissal, Graham pursues the appeal, identifying as error the trial court’s dismissal of count III alleging wilful and wanton misconduct in a wrongful death action and asserting abuse of discretion by the trial court in refusing to allow count III of the counterclaim to be amended.

For reasons hereinafter set forth, the order of dismissal must be reversed and the cause remanded.

Each of the parties rely upon Mattyasovszky as authority for their respective positions, as did the trial court. The order signed by the trial court contains, among other provisions, the following language:

“IT IS HEREBY FURTHER ORDERED that this court finds that Count III of the cross [sic] plaintiff’s cross [sic] claim is insufficient as a matter of law on the grounds that under the decision of Mattyasovszky v. West Towns Bus Co. * e * [citation] allegations setting forth a purported cause of action for wilful and wanton misconduct are precluded under the Illinois Wrongful Death Act for the reason that punitive damages are not recoverable in actions based on said statute; * *

Mattyasovszky does not so hold. In that case, defendant was found guilty of wilful and wanton misconduct and plaintiff was awarded $75,000 in pecuniary damages and $50,000 in punitive damages for the death of a 12-year-old boy whose foot was caught in the bus door and was killed as the bus moved forward. The supreme court “severely limited” the questions presented in that appeal:

“(1) Are punitive damages recoverable under the ‘survival act’ 6 e 6 [citation], and (2) is there a common law action for wrongful death which includes the element of punitive damages.”

The supreme court observed in Mattyasovszky that the law in this State for more than 100 years has limited recovery under the Survival Act to compensatory damages and, following its review of earlier cases, concluded that punitive damages thereunder could not be allowed, and declined to recognize a common law action for wrongful death which would include exemplary damages. The supreme court affirmed the judgment of the appellate court which, significantly, had affirmed the award of pecuniary damages and reversed the judgment which awarded punitive damages, leaving intact the jury verdict finding defendant guilty of wilful and wanton misconduct. The appellate court (21 Ill. App. 3d 46, 55), in denying defendant’s request for remandment for a new trial on the basis that it was prejudiced in the eyes of the jurors by the trial court allowing arguments, evidence and instructions on wilful and wanton misconduct, held that such misconduct is indeed a ground for seeking recovery of pecuniary damages in a wrongful death action, citing Chicago City Ry. Co. v. O’Donnell (1903), 109 Ill. App. 616, aff’d (1904), 207 Ill. 478. That finding by the appellate court in Mattasovszky was left undisturbed by the supreme court.

In the present case, the identity of defendants also may be of particular importance with respect to the issue herein raised. Defendant Grigas, operator of a police vehicle owned by the Village, may well be proved at trial to have been a public employee. Under section 2 — 202 of the Local Governmental and Governmental Employees Tort Immunity Act (hereinafter “Tort Immunity Act”) (Ill. Rev. Stat. 1979, ch. 85, par. 2 — 202), such an employee is relieved of liability for his acts or omissions in the execution or enforcement of any law unless such acts or omissions constitute wilful and wanton negligence. To deny Graham the right to pursue allegations of wilful and wanton misconduct, absent a prayer for punitive damages, would effectively deny her a remedy provided for by article I, section 12 of the 1970 Illinois Constitution and by the Survival Act, Wrongful Death Act as well as the Tort Immunity Act. Such a result, as we have seen, is neither mandated nor suggested by the supreme court in Mattyasovszky.

Accordingly, the dismissal of count III of Graham’s counterclaim must be reversed.

Argument is madé by the Village and Grigas that wilful and wanton activity as defined generally is reprehensible and will generate strong feelings in the already charged atmosphere of a death case; however, as the appellate court stated in Mattyasovszky such a claim is without merit and has no basis in the law. 21 Ill. App. 3d 46, 55.

The abuse of discretion ascribed to the trial court by Graham relates additionally to the court’s refusal to allow Graham to amend count III of the counterclaim so as to permit her. to fully present her claim, citing Scala/O’Brien Porsche Audi, Inc. v. Volkswagen of America, Inc. (1980), 87 Ill. App. 3d 757, 410 N.E.2d 205, and Schlossberg v. E. L. Trendel & Associates, Inc. (1978), 63 Ill. App. 3d 939, 380 N.E.2d 950. The decision as to whether to aUow or deny an amendment rests within the sound discretion of the trial court. (Montgomery Ward & Co. v. Wetzel (1981), 98 Ill. App. 3d 243, 423 N.E.2d 1170; Banks v. United Insurance Company of America (1975), 28 Ill. App. 3d 60, 328 N.E.2d 167.) Among the factors to be considered in whether that discretion was properly exercised is whether the proposed amendment would cure the defective pleading (DMI, Inc. v. Country Mutual Insurance Co. (1980), 82 Ill. App. 3d 113, 402 N.E.2d 805); whether other parties would sustain prejudice or surprise by virtue of the proposed amendment (First National Bank ir Trust Co. v. Sousanes (1978), 66 Ill. App. 3d 394, 384 N.E.2d 30; Baird ir Warner, Inc. v. Ruud (1976), 45 Ill. App. 3d 223, 230,359 N.E.2d 745); the timeliness of the proposed amendment (Able v. Pure Oil Co. (1972), 8 Ill. App. 3d 558, 290 N.E.2d 331); and whether previous opportunities to amend the pleadings could be identified. Friestedt v. Chicago Transit Authority (1970), 129 Ill. App. 2d 153, 262 N.E.2d 771.

In the case sub judice, Graham sought to present an amendment to count III which deleted the request for punitive damages and would have cured the issue of damages under the Survival Act and Wrongful Death Act. No prejudice or surprise could have resulted to the other parties since the case was stiH at the pleading stage. The proposed amendment was presented to the trial court at the time the motion to vacate was heard. Finally, the denial of the motion to amend count III effectively prevented Graham from fully presenting her claim. Under these circumstances it cannot be said that the trial court’s discretion was properly exercised in the furtherance of justice, and, upon remandment Graham should be permitted to file a properly articulated count III.

The Village and Grigas note that the proposed amended count III submitted to the trial court failed to properly state a cause of action for wilful and wanton misconduct under the holding in Pendowski v. Patent Scaffolding Co. (1980), 89 Ill. App. 3d 484, 411 N.E.2d 910, and Rowlett v. Hamann (1969), 112 Ill. App. 2d 121, 251 N.E.2d 358, claiming the absence of the allegations of facts necessary to state an action for wilful and wanton misconduct. We have previously addressed ourselves to the issue of proper articulation of wilful and wanton misconduct in Pendow ski v. Patent Scaffolding Co.; however, the supreme court in O’Brien v. Township High School District 214 (1980), 83 Ill. 2d 462, 469, 415 N.E.2d 1015, decided after Pendowski that, with regard to a similarly articulated wilful and wanton count, a * * plaintiff should be allowed to present evidence in support of * * **” such allegations at trial, a right which Graham in the present case therefore must be allowed to exercise.

For the foregoing reasons, we are compelled to reverse the dismissal of count III of the counterclaim and remand the cause with directions to permit Graham to file a second amended count III.

Reversed and remanded with directions.

STAMOS, P. J., and DOWNING, J., concur.

       Graham also relies upon Kirshenbaum v. City of Chicago (1976), 43 Ill. App. 3d 529, 357 N.E.2d 521; however, it is unclear as to whether the judgments entered in that case were for compensatory or punitive damages.

       Section 38(1) of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 38(1)) specifically requires that a cross demand be designated as a “counterclaim” and we shall hereinafter so refer to it, although the parties and the court designate the pleading at issue as a “cross-claim.”

        Cf. section 1 — 4—6 of the Illinois Municipal Code. Ill. Rev. Stat. 1979, ch. 24, par. 1 — 4—6; Arnolt v. City of Highland Park (1972), 52 Ill. 2d 27, 282 N.E.2d 144.