author: Mr. JUSTICE SMITH Mr. JUSTICE TRAPP

text:
    Charles R. Farny, Plaintiff-Appellee, v. The Civil Service Commission et al., Defendants-Appellants.
    (No. 11646;
    Fourth District
    March 1, 1973.
    TRAPP, J,, dissenting.

      William J. Scott, Attorney General, of Chicago, (Francis T. Crowe and Herman R. Tavins, Assistant Attorneys General, of counsel,) for appellants.
    Charles M. Given, of Mt. Vernon, and Pree & Pree, of Springfield, (Edward G. Pree, of counsel,) for appellee.
   Mr. JUSTICE SMITH

delivered the opinion of the corut:

The circuit court of Sangamon County reversed a decision of the Civil Service Commission ordering the plaintiff, a deputy fire marshal, to report to the Chicago office of the Department of Public Safety (Law Enforcement), Division of Fire Prevention, if and when his ill health terminates and he is physically able to properly perform his duties. The circuit court ordered the plaintiff be returned to his previous territory in southern Illinois. In so doing, the trial court found that the geographical transfer of the plaintiff was not in good faith, was not in the best interest and welfare of the State service nor did it serve to promote the efficiency of that service. Other findings of the trial court are not at issue. From that decision of the circuit court, the Civil Service Commission and the Department of Public Safety appeal. We affirm.

The defendants agree that a geographical transfer must be made in good faith and in the best interest of the Department, and that that is the issue to be determined. Coupled with that issue originally was an appeal from an order discharging the plaintiff for failure to report within 5 days after being ordered to report to the Chicago office for duty. The hearing officer, the Commission and the trial court concurred in holding that the discharge of the plaintiff was illegal and there is no appeal from that conclusion. As will be noted later, it does have some bearing on the good faith of the transfer and whether or not it is for the best interest of the Department.

We recognize that the “findings and conclusions of the administrative agency on questions of fact shall be held to be prima facie true and correct”. (Ill. Rev. Stat. 1969, ch. 110, par. 274.) We recognize also that “it is only where the agency decision is without substantial foundation in the record or is manifestly against the weight of the evidence that it will be set aside, and it will not be disturbed merely because the evidence is conflicting”. (Kohout v. Civil Service Commission, 28 Ill.App.2d 388, 171 N.E.2d 683; Schwarze v. Board of Fire and Police Commissioners, 46 Ill.App.2d 64, 196 N.E.2d 724; Avent v. Police Board of City of Chicago, 49 Ill.App.2d 228, 199 N.E.2d 637.) There is no conflict in the evidence here. The sole issue tiren is whether or not there is any substantial evidence in the record to support the Commissions conclusion that the transfer was in good faith and in the best interest of the Department. The hearing officer of the Commission held that it was neither. The trial court held that it was neither. Two members of the Commission held that it was and one member filed a dissenting opinion in which he stated that he would restore plaintiff to the area to which he was assigned prior to the transfer without precluding the Department from then effecting Mr. Farny’s transfer to an appropriate area for bona fide reasons. He concluded that if and when this was done and the plaintiff appealed the Commission could then reexamine the circumstances surrounding the transfer to determine whether it was justified by the then-existing situation.

We find considerable difficulty in finding any substantial evidence supporting tire conclusion of tire Commission that the geographical transfer was in good faith or for the best interest of the Department. In the face of evidence that refutes a conclusion by an administrative agency, the findings of that agency are neither prima facie correct nor are they aided by the presumption that public officers will not do that which is prohibited and will do that which is required. Ballentine’s Law Dictionary, 3d ed., defines substantial evidence as “evidence beyond a scintilla; evidence affording a substantial basis of fact from which the fact in issue can reasonably be inferred. * * * Such evidence as will convince reasonable men and on which such men may not reasonably differ as to whether it establishes a case or defense”. With this definition and the case law above stated in mind, we turn to the evidence.

The plaintiff was employed by the State in May 1961 and was certified in 1966 as a civil service employee. There was a change of administration in 1969 and the Department decided for the first time to inspect properties in the city of Chicago and decided to transfer experienced men to that area to carry out such inspection. Plaintiff was one of those men chosen to be transferred.

From May 1961 until May 1969, the plaintiffs territory consisted of four counties in the southern part of the State. Plaintiff lived near Carmi, Illinois, some 400 to 450 miles from Chicago. In September he was ordered to report to the Chicago office and again in October. Neither of these transfers ordered by the Department of Public Safety had the approval of the Department of Personnel as required by its Rule 2 — 420, which provides: “No employee may be transferred from one geographical location in the State to another without the approval of the Director”. The first approval by the Department of Personnel was on November 4, 1969, and Farny received his first valid notice of transfer on December 3. At that time, Farny was still on sick leave from his Department. At no time did the plaintiff report pursuant to any order and he was discharged. He appealed from that discharge and his appeal was upheld by the Civil Service Commission. He likewise appealed from the order of geographical transfer and that appeal was denied by the Commission but approved by the trial court.

Under these facts we are asked to bolster the findings of the Civil Service Commission with the presumption that public officials will act in good faith and with honest motives and that they will not do what the law forbids them to do and will do that which the law requires them to do. That presumption is pretty well torpedoed in this record by the fact that the Director of the Department of Public Safety twice ordered a geographical transfer without lawful authority. In the face of this evidence contradicting the presumption in this instance, that presumption fades into insignificance and its probative value is feather weight.

In addition, the testimony of the deputy director of the Department of Public Safety paints a picture of what was taking place. In May, the four counties that the plaintiff had been serving was cut to two and the testimony of the deputy director was that he had 13 new deputy fire marshals come to work all at once in his department and he had to make counties for them and separate them geographically; that the plaintiff was taking care of four counties satisfactorily and that he was able to cover that territory and that two would now be doing the work satisfactorily performed by one. By making the geographical transfer of Famy, a second vacancy in southern Illinois would be created wherein another one of the thirteen new employees could be utilized. This same witness testified that notwithstanding the newly adopted policy concerning the city of Chicago that Mr. Farny would not necessarily be in Chicago proper. “He may have relieved somebody in an outlying district which might know more about Chicago proper and who would have moved on in. That is what happened. Some of them moved on in that were familiar with Loop activities, and Mr. Farny no doubt would have been assigned to a territory either west or north of Chicago where we would have brought in another deputy to work in the Chicago Loop area”. We have some doubts that this transfer was motivated by a new policy of the Department to begin to enforce the State standards of fire prevention in the city of Chicago where that city had previously taken care of its own fire prevention inspection. Further doubt is cast upon this geographical transfer when we consider the determination of the Commission itself in May 1970 in three other cases; to wit, Eric Eagleston v. Dept. of Public Safety, No. 71-69; Erio v. the Dept. of Public Safety, No. 76-69; and Schuette v. Dept. of Public Safety, No. 72-69. At p. 3 of the latter decision, the Commission found as follows:

“The evidence shows that petitioners Eagleston and Erio were sent to the Northwest part of the State of Illinois, at some considerable distance from Chicago and Cook County, and there performed duties of virtually the same nature that they performed in the area from which they were transferred. They were replaced with newly hired deputy fire marshals in their former areas, which illustrates that there was as much of a need to retain them in their former areas as to transfer them to new areas. Furthermore, there is nothing in the record to indicate that there were unusual and extra-ordinary factors in the Northwest area of the state which required the transfer of these petitioners. Another persuasive factor is that there was no evidence that petitioners Eagleston or Erio were ever called upon to participate in fire inspection activities in the City of Chicago * * *.”

In addition, at p. 4 of the Eagleston case, the Commission stated:

* * [T]hat, in the case of petitioner Eagleston, a 70 year old employee with long estabfished family, business and social foundation in the community from which he was transferred, there is no discernible object that will redound to the benefit of the respondent (Department) by Eagleston’s transfer”.

The hearing officer sustained an objection to proof of Farny’s family situation. He was in business in his home town, had an elderly mother living with him and a son requiring 24-hour personal attention. He likewise was the deputy fire marshal chosen from a territory the farthest removed from Chicago. While personal hardship is not per se an element necessarily considered, it would seem that in order to effectuate and implement the Civil Service law, there should be some assurance that a civil service employee wiU not be uprooted unceremoniously for nebulous reason by a geographical transfer and that like employees under like circumstances should be treated alike. The Commission in this instance did not follow the decisions above cited and we therefore conclude that the hearing officer was correct in his finding that “the good faith requirement and the efficiency and the welfare of the Department do not seem to be served by the geographical transfer of the petitioner from southern Illinois to the Chicago area”. A court of review is required to consider the entire record in determining whether the findings are against the manifest weight of the evidence or whether there is any substantial evidence to support the Commission. (Gasparas v. Leack, 93 Ill.App.2d 99, 235 N.E.2d 359.) There is no substantial evidence in this case to support the findings of the Commission on the geographical transfer, particularly where the record establishes under like circumstances that a geographical transfer is unwarranted. Equal protection of the law before such a Commission as it is in the courts requires that like facts and circumstances require a like decision — a decision that the plaintiff here did not receive. We do not intend to hold that individual inconvenience per se precludes geographical transfers or are always warranted when approved by the Director of Personnel. We do hold that the Civil Service Commission may not apply one rule in one case and a different rule in another where the circumstances are fundamentally the same on the issue of good faith, welfare of the Department and the necessity for the transfer.

Accordingly, the judgment of the trial court is affirmed.

Judgment affirmed.

CRAVEN, P. J., concurs.

Mr. JUSTICE TRAPP

dissenting:

The Civil Service Commission found that the transfer at issue was effected in good faith and not an act of political discrimination. The dissenting member of the Commission did not question tírese conclusions, but suggested that the transfer be not effective pending the determination of the need of the agency when Famy became fit for duty.

The record supports tire conclusion that the Farny transfer was made pursuant to a reasonable plan for placing men best qualified by experience in the Chicago Division where needed for an expanded State program. It is shown that other men from the administrative division in Springfield were similarly transferred. It is not the province of a court upon review to conclude that the administrative agency might have better chosen some other means for filling the post created by the expanded coverage.

The testimony of Farny makes it clear that he will not accept a transfer under any circumstances. The hearing officer ruled that the claim of hardship allegedly resulting from the transfer was not relevant to the issue of its validity. The accuracy of the ruling is not challenged. Farny, however, persists in arguing such point before the hearing officer as well as here.

The principal opinion cites certain cases which the Civil Service Commission determined that the transfers there involved were not properly made. Neither such cases nor the facts of record therein are to be found in the abstract of proceedings considered by the Commission, but appear only in plaintiff’s brief. In such form they are not a part of this review. In any event, we are not persuaded that orders of the Civil Service Commission finding certain transfers to be improperly made give grounds for concluding that the Commission erred in holding this transfer to be proper and valid.

I would reverse the order of the Circuit Court and affirm the order of the Civil Service Commission,


source: Caselaw Access Project

author: Mr. JUSTICE SMITH

license: Public Domain

text:
    State Bank of Arthur, Plaintiff-Appellee, Cross-Appellant, v. B. G. Sentel, Defendant-Appellant—(Maxine J. Sentel, Cross-Appellee.) State Bank of Arthur, Plaintiff-Appellee, v. H. E. Kendall, Defendant-Appellant.
    (No. 11670;
    Fourth District
    March 1, 1973.

      Glenn & Logue, of Mattoon, (Thomas J. Logue, of counsel,) for appellants.
    Ryan & Heller, of Mattoon, (Dale A. Cini and Willis P. Ryan, of counsel,) for appellee.
   Mr. JUSTICE SMITH

delivered the opinion of the court:

This is an appeal from a judgment in favor of State Bank of Arthur entered against B. G. Sentel and H. E. Kendall on promissory notes executed by them and a cross appeal by the State Bank of Arthur of the dismissal of the suit against Maxine Sentel.

Two separate judgments by confession were obtained, the first on a promissory note for $60,000.00 dated February 23, 1966 and signed by B. G. Sentel and Maxine Sentel and the second, upon a promissory note of the same date and amount signed by H. E. Kendall. After the judgments by confession were opened, the suits were consolidated for subsequent proceedings. Answers were filed to the complaints admitting the execution of the notes but denying liability under the notes and asserting three affirmative defenses: (1) the failure of consideration; (2) alteration of the notes, and (3) fraud in the execution. After the trial of the case, a motion was filed to amend and add a fourth affirmative defense that the notes were an accommodation to the State Bank of Arthur. The court allowed a motion to strike this last affirmative defense and entered judgment on the notes against H. E. Kendall and B. G. Sentel, and this appeal was taken. Judgment was not entered against Maxine Sentel on the note executed by her as the court found no consideration was given. The Bank cross-appeals that ruling.

The factual background of this suit is complicated and at the trial contradictory testimony was introduced concerning the various issues. Both Dr. Kendall and Mr. Sentel were involved in the development of a medical facility near the Shelbyville reservoir. The enterprise was originally known as Merkl Development, Inc. and Kendall was the President of the corporation during various times of its existence and Sentel was its Secretary. (Subsequently, a second corporation was formed named Medical Park of the Kaskaslda and two-thirds of its stock was owned by Merkl.) In connection with the development and promotion of these enterprises, the State Bank of Arthur took, at various times a number of promissory notes from Merkl which were either guaranteed or endorsed by the Kendalls, Sentels and another person for a total of approximately $121,000.00 as of September of 1965. At that time both Mr. Sentel and Dr. Kendall were shareholders and were officers of the corporation.

In September of 1965, the three Defendants and Violet Kendall executed promissory notes to the Bank of Decatur in the amount of $121,-727.55, the proceeds of which were used to pay off the indebtedness of Merkl at the State Bank of Arthur. On December 16,1965, the State Bank of Arthur received two new notes, one from the Sentels for $60,000.00 and one from Dr. Kendall for $60,000.00. The proceeds from these notes were used to pay off the National Bank of Decatur. These notes fell due on February 23, 1966 and were renewed by notes for sixty days. They were not paid when due. As a result, the aforesaid judgments were obtained against both the Sentels and Kendall. Included therein in the judgments obtained were interest, attorneys fees and costs.

The issues raised by this appeal are whether the trial court erred in finding consideration for the notes and that there was no alteration and no fraud in the execution of the notes by Mr. Sentel and Dr. Kendall. An issue is also raised as to the striking of the alleged affirmative defense of alteration. As to the cross-appeal, the issué is whether there was consideration given for the note by Maxine Sentel.

In reviewing the points raised, it is first to be noted the issues are factual and that there is conflicting, evidence on many of these issues. However, the trial court having seen the witnesses and heard the testimony is more appropriately the court where these resolutions should be made. Unless it can be shown that its findings of fact are clearly contrary to the manifest weight of the evidence, the trial court’s resolutions of credibility will not be overturned. Schulenburg v. Signatrol, 37 Ill.2d 352, 226 N.E.2d 624; Comm v. Goodman, 6 Ill.App.3d 847, 286 N.E.2d 758.

The first affirmative defense that there was no consideration given for the notes upon which the judgment was obtained, comprises two points; the first is that when the February notes were executed, the ones upon which the judgment was obtained, the December notes were not surrendered; the second point is that no new consideration or any consideration was given directly to the makers of the notes. As to the first of these issues, the records of the Bank indicate that the December, notes were paid by renewal notes in February of 1966. Although there is testimony to the contrary, the Defendants contend, that these December notes were never returned to the makers but remained in the files of the Bank. The aHeged fact that the bank failed to return these notes to the makers, it is argued, amounted to a failure of consideration for the notes and that if any cause of action existed, it was upon the December notes. Assuming the truth of these factual contentions, the books and records of the Bank revealed that tire proceeds from the February notes were used to credit the indebtedness on the December notes and these notes were shown as paid in full on the record of the Plaintiff bank. There was no showing of any negotiation of the December notes by the Bank of Arthur nor any showing of a demand for their return by Defendants except at the trial. The failure to return the notes, where there was a proper crediting on the books of the bank, and these records show payment of these prior notes by renewal, does not destroy the validity of the renewal notes; to hold otherwise would place form over substance and technicality over justice. In 11 Am.Jur.2d, Bills and Notes, Sec. 233, at pp. 260-262, it is stated:

“A renewal note is supported by a sufficient consideration either in the form of the consideration for the original instrument, the antecedent debt, the surrender of the original instrument, or the extension of time obtained by the renewal, and in some cases by the fact that the renewal embraces, the compromise of a disputed claim in regard to the original. Similarly, where there is an exchange of paper or where a note is given in substitution for the note of another and the holder of the latter note surrenders it or extends the time for payment of the original obligation there is sufficient consideration for the new paper.
# # e
It is not necessary to constitute consideration for a renewal note, or a new note executed in place of an existing one, that the old note be surrendered, canceled, destroyed, or discharged. This is not called for as part of the consideration for the new note unless there is an express agreement therefor.”

There was no evidence found by the trial court, nor any found in our review of the record, to support the proposition that the renewal notes were executed with the express agreement for the return of the notes they replaced.

It is also contended that there was no consideration given by the Sentels and Dr. Kendall for the February notes. A review of the evidence indicates that although Dr. Kendall and the Sentels did not receive any direct consideration — credit or cash advanced to them — Merkl did receive such. Both Mr. Sentel and Dr. Kendall engaged in actively promoting and developing properties held by Merkl and the Medical Park of the Kaskaskia. At various times, both were officers. and employees of these organizations. Dr. Kendall and Mr. Sentel owned stock in the Merkl corporation. They were interested in raising money for the various purposes of the corporation and did in fact lend it money personally. They also signed notes at the Bank of Arthur for money lent to the corporation and endorsed obligations of Merkl at that Bank.

At the time the loan was made by the National Bank of Decatur, Merkl was indebted to the Bank of Arthur in tire amount of approximately $121,000, the major portion of which had been guaranteed by the defendants. The Bank of Arthur had indicated that the bank examiners would show the loan as an overline — an over extension of credit — and that something would have to be done with that loan. The Bank of Arthur therefore arranged for a loan made directly by the National Bank of Decatur to the Kendalls and the Sentels. The proceeds of that loan were used to pay off the loan of Merkl at the Bank of Arthur. Subsequently, other notes were executed at the Bank of Arthur, the proceeds of which were used to pay on the loan at the Bank of Decatur.

From the foregoing facts, there is adequate evidence in the record to support the court’s finding of consideration. That fact of payment of a corporate obligation in which the makers had an interest alone is sufficient consideration for the execution of the promissory notes and for the holding of the makers responsible on the notes, even though they did not obtain any direct personal benefit from the execution of these notes. In National Bank & Trust Co. v. Becker, 38 Ill.App.2d 307, 187 N.E.2d 355, judgment against individual defendants upon their guaranty of a loan of $95,000.00 to a corporation in which they were shareholders was affirmed, the court saying, at page 312:

“* * it -phe defendants were not merely accommodation guarantors, but as shareholders of the corporation received a benefit from the loans and renewals made on the strength of the instruments of guaranty * *

The rationale for liability of borrowers connected with corporations is stated in Meyer v. Pfahler, 362 Ill. 336, 199 N.E. 801 at page 345 as follows:

“The interest of each of these signers was such as to constitute a valid consideration for the transfer had they given property ox-money or notes directly to the banking corporation. Those who were employees, only, were directly interested in the continuance of their employment; those who were officers were likwise interested in maintaining their positions, while those who were stockholders, as nearly all the signers were, were interested- in maintaining the value of their stock as an investment * *

The fact that consideration had been given and credit extended to a corporation in which the makers had an interest as shareholders and officers is sufficient consideration to support these notes.

The trial court dismissed the complaint against Maxine Sentel. She was the wife of B. G. Sentel. As previously noted in September of 1965, her husband was personally liable on Merkl loans, and her husband had loaned money to Merkl. In order to transfer the account to the Decatur bank, she signed in September of 1965 a note for $60,000.00 to that bank. This was because the Bank of Arthur “had to do something about the Merkl loans”. Obviously, if the overline was not removed, proceedings would have begun against her husband on the notes that he had guaranteed or co-signed for Merkl. In December, she executed a note of Plaintiff to remove the loan at the Decatur Bank. Under this factual situation where the wife is a co-maker of the note paying for the husbands obligations, there is consideration to the wife as she shares in his wealth and his inheritance. The extension of credit was made to her husband on the basis of her signature and she had a direct interest in the extension.

The next issues raised are that of fraud and alteration of the notes sued upon. Essentially the alteration and fraud arguments are the same — the failure to complete the document as allegedly authorized. Plaintiffs argue that the notes were fraudulently obtained because they were supposed to be Merkl notes and not individual notes. The testimony presented on behalf of the Plaintiff bank was that the notes were intended to be personal notes and that they were typed out that way by an officer of the bank prior to their delivery and prior to signing. The notes themselves were signed, not in any capacity as a corporate officer, but by the individuals in their individual capacities. The defendants at first denied any recollection of signing the December notes but later admitted signing the February notes.

The testimony of the bank officers is supported by the record of extrinsic facts. The initial notes in September to Merkl were guaranteed or co-signed by both Kendall and Sentel; they were both liable on these notes. The notes to the Bank in Decatur were personal notes and they were liable on those notes. The December notes were personal notes and they were liable on those notes. It seems incongruous, to say the least, that all of a sudden in December and February when Merkl was financially hard pressed, the bank decided that the notes should be that of Merkl and no co-signers were required. This inconsistency is further heightened by the fact that Mrs. Sentel signed the notes. She was not an officer, director or stockholder of the corporation. What was the function of her signing the note? It obviously had to be to hold her personally liable and that is consistent with the testimony of the bank that the notes were to be personal; if it was to be solely a corporate note, her name ■yvould not appear. These facts adequately support the trial court finding, which was basically a credibility issue, that the notes were intended to be and were in fact personal notes of the Sentels and Dr. Kendall.

The accommodation argument as raised was basically that there was no consideration. Technically, the defendants are not accommodation parties. Under the Illinois Commercial Code, “an accommodation party is one who signs the instrument in any capacity for the purpose of lending his name to another party to it.” (See Sec. 3 — 415, Ill. Commercial Code, Ch. 26, 1965 Ill. Rev. Stat.) The Code further provides that the party accommodated cannot, sue the accommodation party.

The Sentels and Dr. Kendall do not fall into this definition — they did not lend their names to another party to the note. The accommodation allegedly was to the Plaintiff bank to remove the overline of credit; however, the Plaintiff bank was not “another party” to that note to whom their names were lent and therefore without the provisions of that Section. There was no error in the dismissal of the affirmative defense.

Error is also assigned to the trial court in the failure to admit certain testimony. Offers of proof were made and upon review of these offers, it cannot be said that the testimony sought to be introduced would change the outcome of this suit and therefore any error in that regard would have to be regarded as harmless.

Accordingly, the judgments in favor of the Plaintiff bank against B. G. Sentel and H. E. Kendall are affirmed. The judgment in favor of defendant Maxine Sentel against Plaintiff State Bank of Arthur is reversed and judgment entered here in favor of the Plaintiff and against the Defendant Maxine Sentel in the sum of $68,950, together with interest at the statutory rate from August 7,1967 — the date of the original judgment.

Affirmed in part; reversed in part, with judgment here.

CRAVEN,.P. J., and SIMKINS, J., concur.


author: Mr. PRESIDING JUSTICE CRAVEN

text:
    James H. Kirby, Plaintiff-Appellant, v. General Motors Corporation, Defendant-Appellee.
    (No. 11692;
    Fourth District
    March 1, 1973.

      Herrick, Rudasill & Moss, of Clinton, (Ray Moss, of counsel,) for appellant.
    Lord, Bissell & Brook, of Chicago, Livingston, Barger, Brandt, Slater & Schroeder, of Bloomington, and Ross L. Malone, of Detroit, Michigan, (Richard E. Mueller and Michael Davis, of counsel,) for appellee.
   Mr. PRESIDING JUSTICE CRAVEN

delivered tire opinion of the court:

This is an appeal from a judgment of the trial court entered in favor of defendant, General Motors Corporation, on a motion for summary judgment by defendant in an action brought to recover damages for personal injuries to plaintiff, a truck driver, caused by alleged negligent design of the steering mechanism in a Chevrolet truck manufactured and designed by defendant.

The complaint alleged that the steering mechanism of the truck failed due to faulty design by defendant of certain of its parts. Defendant’s answer denied the charges and by amendment raised defenses of assumption of the risk and contributory negligence of plaintiff.

Subsequently, defendant filed a motion for summary judgment on grounds that plaintiff’s conduct amounted to assumption of the risk or contributory negligence, as a matter of law. This motion, based on two grounds, alleged that the defective product was not that of the defendant, and that the plaintiff assumed the risk of the consequences of the alleged defect or was guilty of contributory negligence.

The motion had attached to it as supporting documents the discovery depositions taken of plaintiff, and of Diana Albert, Vice President for Administration and former office manager and personnel director of PreFab Transit Company, employer of plaintiff and owner of the truck plaintiff was driving, certain written answers of plaintiff to written interrogatories, the evidence deposition of James Webb taken by defendant, and. an affidavit of Gerald A. Confer, an engineer of defendant,

Plaintiff filed no counter-affidavits or other documents countering those attached to defendant’s motion for summary judgment.

From the record it appears that plaintiff, a truck driver, employed by Pre-Fab Transit Company at the time of the occurrence of February 19, 1968, resulting in plaintiff’s injuries, was driving a 1962 Chevrolet diesel tractor of his employer on an assignment for his employer, from Lansing, Michigan, to Largo, Indiana on a four-lane highway known as U.S. highway 24. He was driving at 50 to 55 miles per hour in the right-hand lane of the two westbound lanes.

Plaintiff pulled into the other westbound lane to pass another vehicle. After completing the pass and upon cutting his wheels to the right to return to the right-hand lane, plaintiff discovered he had no steering. The steering wheel would spin, having no apparent connection to the wheels. He braked the trailer, but skidded 40 to 50 feet on the pavement and went into a ditch and struck a tree on the right side of the road and was seriously injured.

At the time of the accident, plaintiff was 31 years of age. He had been raised on a farm and done usual farm repair work; had been in the Army and had served overseas with a truck driver military occupational specialty. He had been employed as a track driver by his employer for about two years.

The 1962 Chevrolet diesel tractor involved had been designed and manufactured by defendant and was bought by Pre-Fab Transit Company in 1962. Plaintiff started driving this track in the fall of 1966, at which time its speedometer had about 300,000 miles on it. Plaintiff was its only regular driver from the fall of 1966 up to the time of the accident. Its speedometer showed an additional 150,000 miles or 450,000 miles.

It is plaintiff’s contention that the accident was caused by failure of the tractor’s steering system in that the yoke fitting the spline shaft coming out of the gear box pulled off, due to faulty design by defendant.

On at' least two prior occasions, plaintiff had experienced loss of steering control of this tractor due to the yoke’s pulling completely off of the spline shaft. Each prior time, plaintiff himself performed repairs and continued driving on the highway. Two months prior to the accident, while coming into a curve at about 50 miles per hour, upon attempting to turn left the truck would not guide. Plaintiff determined that the yoke had slipped off the spline shaft, whereupon he put the parts back together, tightened the safety bolt, and resumed driving. He later stopped, found the yoke had slipped up about a half-inch and again tightened the bolt.

During the next two months of January and February, 1968, he experienced difficulty in steering when, upon striking bumps, the steering wheel would slip a half-turn. As a result, he left the truck in his employer’s terminal for repairs during January, 1968, up to the date of the accident. On the date of the accident, a very few minutes before its occurrence, plaintiff again experienced a complete loss of steering. While driving along U.S. highway 24, he saw another of his employer’s tracks at a truck stop. He pulled off of the road, but in the process of doing so, while his vehicle was traveling at 30 to 40 miles per hour, the steering wheel locked and would not turn. Since his truck was headed toward the side of the road, however, he simply let it slow down and braked it off to the side. The vehicle came to a stop approximately fifty yards from the truck stop entrance. He lifted the hood, saw that the “knuckle” again had slipped off the spline shaft, and had dropped down between the frame and gear box. He called over to the other driver and showed him the condition. Thereupon plaintiff lifted tire “knuckle”, placed it back on tire shaft and tightened the bolt. He then closed the hood, got back into his truck and resumed traveling westward on U.S. highway 24. Three miles later the accident occurred.

Prior to the date of the accident, various fellow employees of plaintiff had been informed of, or knew of the existence of some defect or fault in the tractor steering mechanism. The shop foreman at the Farmer City, Illinois, and Columbus, Ohio, facilities had been informed of it. The vehicle had been left at the Columbus facility, where a knuckle was replaced; and something was replaced at the Farmer City facility.

One of the employer’s other employees, a mechanic named James Webb who worked at Columbus, Ohio, on April 14, 1967, had inspected plaintiff’s truck at the plant there and noted a defect in the steering mechanism. He replaced a universal joint in the steering shaft because it was worn. Such replacement, no doubt, required loosening the bolt in the assembly, lifting the yoke, or “knuckle” off the spline shaft, removing the shaft, universal joint and yoke from the vehicle. He did not recall whether he also replaced the yoke, or “knuckle”, in the assembly; neither did he recall whether he replaced the bolt within the yoke or knuckle.

After tire accident, some parts of the vehicle were removed. The intermediate shaft of the steering mechanism, together with its attached bolt, washer and nut, was taken by the employer. Neither the bolt, the washer, nor the nut removed from the vehicle were supplied by defendant either as original or replacement parts. The bolt removed from the vehicle was different in dimension, and the washer and nut were different in type from those supplied by the defendant to the vehicle either as original or replacement parts.

There can be no question but that this was a proper case for the granting of summary judgment. There was no genuine issue of material fact, since as a matter of law plaintiff’s conduct clearly constituted contributory negligence, if we are to treat this case as one merely of negligence. Further, were this case to be treated as one being brought on the theory of strict liability, plaintiff clearly assumed the risk as a matter of law. At the time defendant moved for summary judgment, the complaint alleged only negligence. Defendant’s amendment to its answer pleaded the affirmative defense of contributory negligence and in addition pleaded the further affirmative defense to a case of strict liability in tort of the assumption of risk and misuse of the product. Defendant supported its motion for summary judgment with the matters listed above. Plaintiff offered no counter-affidavits or other proofs in opposition to the motion or to the facts shown by defendant’s counter-affidavits and supporting documents.

Where, as in this case, there is no genuine issue of material fact, and the court finds as a matter of law that there is a complete defense to the cause of action, it is not only proper, but it is the duty of the trial court to enter summary judgment for the defendant. Allen v. Meyer (1958), 14 Ill.2d 284, 152 N.E.2d 576; Fooden v. Board of Governors, etc. (1971), 48 Ill.2d 580, 272 N.E.2d 497; Ferguson v. Lounsberry (4th Dist. 1965), 58 Ill.App.2d 456; 207 N.E.2d 309; Mitchell v. Ralston (4th Dist. 1971), 130 Ill.App.2d 759; 266 N.E.2d 424.

A manufacturer cannot be held liable either on the theory of negligence or on the theory of strict liability under circumstances as are shown by this record. The alleged defect was in a vehicle manufactured and placed in the channels of commerce some six years earlier. The vehicle had been driven some 450,000 miles. It had been repaired by the plaintiff and by employees of its owner. Replacement parts had been used which were neither designed, manufactured, nor sold by defendant whose liability is sought to be established. We know of no theory of liability under which the plaintiff's asserted claim can be established. The trial court quite correctly granted the motion for summary judgment for the defendant and that action is affirmed.

Judgment affirmed.

SMITH and SIMONS, JJ., concur.


author: Mr. PRESIDING JUSTICE BURMAN

text:
    Clarence H. Martino, Admr., of the Estate of Herbert L. Hazen, Jr., Deceased, et al., Plaintiffs-Appellees, v. Ned Thomas Barra et al., Defendants-Appellees—(Mt. Vernon Tire Service Corporation, Defendants-Appellants.) Anton Halmel et al., Counterdefendants-Appellees, v. Ned Thomas Barra et al., Counterplaintiffs-Appellees—(Mt. Vernon Tire Service Corporation, Counterdefendant-Appellant.)
    (No. 56371;
    First District (4th Division)
    January 31, 1973.

      Jerome M. Brooks and Gilbert Gordon, both of Chicago, for appellant.
    James A. Dooley, of Chicago, for appellees.
    Nat P. Ozmon, of Chicago, for counterplaintiffs-appellees.
    Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago, (Leonel I. Hatch, Jr. and D. Kendall Griffith, of counsel,) for appellees Ned Barra and Leon B. Stilley.
   Mr. PRESIDING JUSTICE BURMAN

delivered the opinion of the court:

This action was brought to recover damages for the wrongful deaths of Herbert Hazen, Jr., Josephine Hazen and Charlotte Thacker. There were multiple plaintiffs and defendants. The jury returned a verdict on February 3, 1964, for all the defendants against the plaintiffs. Post-trial motions were filed by the plaintiffs for judgment notwithstanding the verdict and for a new trial on the issue of damages only. Other post-trial motions were also filed by the respective parties. Plaintiffs’ motions for judgment notwithstanding the verdict and for a new trial on the issue of damages only were granted as to defendants, Ned Thomas Barra and Mt. Vemon Tire Service (hereinafter referred to as Mt. Vernon) on March 6, 1964. Motions by certain cross-claimants were also granted.

Defendants Barra and Mt. Vemon appealed to this court. On October 5, 1965, the Appellate Court filed an opinion reversing the order of the Circuit Court and remanding the cause with directions. On rehearing, however, the Appellate Court dismissed the appeal with respect to three of the appellees on the ground that the Circuit Court order was not final and appealable. (Martino v. Barra, 67 Ill.App.2d 328, 215 N.E.2d 12.) The Supreme Court affirmed the dismissal of the appeal and remanded the cause to the Circuit Court for further proceedings. Martino v. Barra, 37 Ill.2d 588, 229 N.E.2d 545.

On remand to the Circuit Court, the plaintiffs and counter-plaintiffs moved the court to vacate the judgment notwithstanding the verdict and to allow them to amend their post-trial motions to request a new trial on all the issues. The trial court, over objections, granted their motions, and ordered a new trial as to all issues and aU parties.

On January 15, 1969, the defendants, Ned Barra, Leon B. Stilley Construction Co., Leon B. Stilley, and Mt. Vernon Tire Service Corp., pursuant to Supreme Court Rule 306, Ill. Rev. Stat. 1969, ch. 110A, par. 306(a)(1), jointly petitioned this Court for leave to appeal from the order of the Circuit Court granting the new trial. Leave to appeal was denied on May 27,1969. The cause was then retried before another judge. On retrial, a jury found Mt. Vernon solely liable to all plaintiffs and counter-plaintiffs. The amount of the judgments entered on the verdicts is not here in issue.

On appeal from the judgment entered against it, Mt. Vemon now contends that (1) the original trial court erred in entering judgment against Mt. Vernon notwithstanding the verdict of the jury, (2) the subsequent order by the same judge granting a new trial on all the issues constituted an abuse of discretion and was contrary to the instructions of the Supreme Court, (3) on retrial, tire trial court improperly instructed the jury with respect to the theory of res ipsa loquitur, and (4) erroneously permitted the jury to hear evidence implying that the only insurance coverage available was that of Mt. Vemon.

Initially, Mt. Vernon is requesting that we again pass upon the question of whether the Circuit Court erred in setting aside the jury verdict and granting a new trial. This we cannot do. The record reveals that Mt. Vemon, jointly with others, filed a petition for leave to appeal from the order granting a new trial. In the petition, filed in this court under file number 53711 on January 15, 1969, Mt. Vernon contended that the order granting a new trial on all issues was inconsistent with the views of this court and with the mandate of the Supreme Court. The arguments made in the petition are substantially similar to Mt. Vernon’s contentions on this appeal. The Appellate Court denied the petition for leave to appeal, and the parties proceeded to retry the case.

Supreme Court Rule 306, formerly Rule 30, provides that, “An appeal may be taken from an order of the Circuit Court granting a new trial only on the allowance by the Appellate Court of a petition for leave to appeal,” Ill. Rev. Stat. 1969, ch. 110A, par. 306(a)(1). This is the sole means of securing review of an order granting a new trial. Rodriguez v. Chicago Transit Authority, 58 Ill.App.2d 150, 162, 206 N.E.2d 828, 834-5.

Mt. Vernon’s petition for leave to appeal from the order of the trial court granting a new trial was denied by this court on May 27, 1969. Both tire original order granting judgment notwithstanding the verdict of the jury and ordering a new trial of the issue of damages, and the subsequent revised order granting a new trial on all the issues were considered by this court at that time and are not properly before us on this appeal.

We note that Mt. Vernon predicates its argument on the sole authority of remarks contained in the original Appellate and Supreme Court opinions. In a subsequent opinion, the Supreme Court, affirming the Appellate Court, dismissed the appeal on the ground it was piecemeal, and remanded the cause to the Circuit Court. Supreme Court Rule 369 (b), Ill. Rev. Stat. 1969, ch. 110A, par. 369(b), states:

“When the reviewing court dismisses the appeal * * * and the mandate is filed in the circuit court, * * * proceedings may be conducted as if no appeal had been taken.”

Since the Appellate and Supreme Courts found they had no jurisdiction, the original opinions on which Mt. Vernon relies can have no effect.

Mt. Vernon next contends that on the re-trial of this case, tire court over appellant’s objection improperly instructed the jury with respect to the theory of res ipsa loquitur. The instruction complained of reads as follows:

“Under one of the theories of the plaintiffs and counter-plaintiffs alleged against the defendants, Ned Thomas Barra, Leon B. Stilley d/b/a Leon B. Stilley Construction Company, and Mt. Vernon Tire Service, Inc., the plaintiffs and counter-plaintiffs have a burden of proving each of the following propositions:
First: That the plaintiffs and counter-plaintiffs sustained injury or damage.
Second: That the injury or damage was received from a wheel of a concrete mixer truck which was or had been under one or more or all of the defendant’s control.
Third: That in the normal course of events, the wheels would not have come off of said truck and the injury or damage would not have occurred if any or all of the defendants had used ordinary care while the wheel of the cement mixer truck was under his or their control.
If you find that each of these propositions has been proved, the law permits you to infer from them that a defendant or defendants were negligent with respect to the wheel of the cement mixer truck while it was under his or their control. If you draw such an inference your verdict must be for the plaintiffs and counter-plaintiffs if any injury or damage proximately resulted. But if, on the other hand, you find that any of these propositions has not been proved, or if you find that the defendant or defendants used ordinary care for the safety of others in his or their control of the wheel of the cement mixer truck, then your verdict should be for the defendant.”

The factual situation essential to this issue may be briefly summarized as follows:

On August 26,1958, sometime after noon, a Cities Service Oil Company tractor-trailer, driven by Anton Halmel, was northbound on Route 37, a two-lane highway. Southbound was a Leon B. Stilley Construction Company concrete mixer truck, operated by Ned Barra. Also southbound, behind the concrete-mixer truck, was the automobile in which Herbert Hazen, Jr., Josephine Hazen and Charlotte Thacker, all deceased, were riding. As the Cities Service tractor-trailer and the concrete-mixer approached each other, the two left rear dual wheels of the mixer truck came off, rolled down the highway into the northbound lane and collided with the Cities Service truck. To avoid the collision, Halmel applied the brakes and attempted to turn his vehicle to the right, but the Cities Service tractor-trailer went into the southbound lane and collided with the automobile containing the deceased persons.

The record further shows that 15 days prior to the collision, on August 11, 1958, the concrete-mixer had a flat tire and Mt. Vernon was called to replace it. The wheel repaired by Mt. Vernon was one of those involved in the occurrence. Mt. Vernon’s employee testified that he removed the outside left tire and wheel and changed the tire. When he replaced the tire he tightened the lugs with a wrench and a cheeter bar, which he used for leverage. He stated that if the procedure he described is done correctly, the nuts should not come off in 13 or 14 days by themselves. The truck was used daily after the repair and nothing unusual was noticed about any of its wheels.

Mt. Vernon contends that the giving of a res ipsa instruction under the facts and circumstances of this case was erroneous. It stresses that the tire was repaired 15 days prior to the collision, and that during that period, other persons, not involved herein, had control of the concrete-mixer truck. Mt. Vernon also points out that from August 11, 1958, when the wheel was repaired, until the time of the occurrence, the truck was in full and heavy use, and while not in use, was parked in an open space on the truck lessee’s premises. Mt. Vernon argues that on these facts; it is no more logical to infer that the wheel came off because of Mt. Vernon’s lack of due care than to infer that it came off from a multitude of other causes.

It is well established that the instrumentality causing the injury need not be in the control of the defendant at the time the injury occurred to justify the giving of a res ipsa instruction. A similar argument was rejected in Moore v. Jewel Tea Co., 116 Ill.App.2d 109, 253 N.E.2d 636, aff’d 46 Ill.2d 288, 263 N.E.2d 103, where a can of Drano exploded while in the possession of the purchaser some 10 months after it had left defendants’ control. Defendants argued that during that period, tire can of Drano was in the custody and control, not of the defendants, but of various common carriers, unidentified employees and customers of the Jewel Tea Co., and the plaintiff and members of her household. In holding that it was not error to submit the case to the jury on a res ipsa instruction, we quoted from the Illinois Jury Instruction Committee comment to IPI 22.01 as follows:

“The agency or instrument which causes the injury need not be in the control or management of the defendant at tire time the injury occurs. It is sufficient if the instrument has been in the control of the defendant at a time prior to the injury and there is no rational ground upon which to impute negligence to another with respect to the instrumentality after it left the defendant’s control. Cobb v. Marshall Field & Co., 22 Ill.App.2d 143, 152, N.E.2d 520, 524; Bornstein v. Metropolitan Bottling Co., 26 N.J. 263, 270, 139 A.2d 404, 409 (1957).” 116 Ill.App.2d at 135, 253 N.E.2d at 648.

In May v. Columbian Rope Co., 40 Ill.App.2d 264, 189 N.E.2d 394, the defendant rope manufacturer unsuccessfully claimed that res ipsa was inapplicable because it had parted with control of the rope. There the court stated,

“Decisions from other states and recent cases here reject this inflexible application of a rule of control and hold that a defendant in a res ipsa loquitur case cannot automatically defeat an allegation of negligence with a bare showing that, before harm struck, it had parted with control of the harmful instrumentality. (Prosser, Torts 206 ( 2d ed 1955).)
The demonstrable trend of these authorities is to determine from the nature of the defective instrumentality and the surrounding circumstances whether the inference of the defendant’s negligence is strong enough to survive the fact that, between the defendant’s control and the plaintiffs injury, another possession intervened. If a reasonable inference of negligence does survive, liability has been imposed.” 40 Ill.App.2d at 271, 189 N.E.2d at 397.

In the instant case, Mt. Vernon removed the wheel, repaired it, and replaced it on the truck 15 days before the accident occurred. There was no evidence from which to impute negligence with respect to the wheel to any other party. Under the circumstances, we do not think the trial judge erred in submitting the res ipsa loquitur instruction to the jury.

Mt. Vernon also contends that at the retrial, the court permitted the jury to hear evidence implying that the only insurance coverage available was that of Mt. Vernon. We are not in accord. In the course of voir dire examination, four jurors were asked if they were financially interested in Transamerica Corp. or in the Reliance Insurance Companies. The questions were asked pursuant to a motion and affidavit filed by plaintiffs indicating that Mt. Vernon was insured by the Reliance Insurance Companies and that Ned Barra and Leon B. Stilley were insured by the Transamerica Corp. This particular procedure was approved by the Supreme Court in Haymes v. Catholic Bishop of Chicago, 41 Ill.2d 336, 341, 243 N.E.2d 203, 205-6. No reference, however, was made to Mt. Vernon during the voir dire examination.

Mt. Vernon argues that it was error subsequently to allow defendant Stilley to testify regarding the lack of coverage of the concrete-mixer truck under his policy of insurance. As pointed out in Seyferlich v. Maxwell, 28 Ill.App.2d 469, 475-6, 171 N.E.2d 806, 809, the topic of insurance is proper under many circumstances.

“The general rule is that insurance coverage is inadmissible on the grounds of irrelevancy as it has no bearing on the question of negligence. The doctrine is in transition, however, and there have been established numerous exceptions and competing considerations. It is admissible to show agency, ownership or control of the vehicle or instrumentality (Vacker v. Yeager, 151 Ill.App. 144, Watson v. Trinz, 274 Ill.App. 379) or to show bias or interest of a witness. Moore v. Young, 317 Ill.App. 474, 46 N.E.2d 852. It may be elicited unintentionally by examining counsel when the witness, unaware of the conspiracy of silence, makes an unresponsive reference to insurance. McCormick on Evidence, p. 356. Reitz v. Yellow Cab Co., 248 Ill.App. 287. Hoffman v. Jenard, 334 Ill. App. 74, 78 N.E.2d 322. It may also be introduced in evidence when a party makes a statement amounting to an admission of liability and the jury is thereby incidentally apprised of the insurance coverage. 4 A.L.R.2d 781, Garee v. McDonnell, (C.C.A. 7th Ill.) 116 F.2d 78. Finally, the jurors may be questioned on voir dire as to their possible connection or interest in an insurance company when this information is necessary for the intelligent exercise of the right of peremptory challenge and is sought in good faith. Kavanaugh v. Parret, 379 Ill. 273, 40 N.E.2d 501. Wheeler v. Rudek, 397 Ill. 438, 74 N.E.2d 601.”

An examination of the record reveals that no objection was made to Stilley’s testimony by counsel for Mt. Vernon. Although counsel for another defendant objected, that objection does not benefit Mt. Vernon. (Allegretti v. Murphy-Miles Oil Co., 280 Ill.App. 378, 391.) Moreover, the conduct complained of was that of counsel for defendant Halmel. The error of one defendant complained of by another defendant is not chargeable to the plaintiff. See Schmitt v. Chicago City Ry. Co., 239 Ill. 494, 499, 88 N.E. 275, 277.

In view of our decision to affirm the judgment of the Circuit Court, we need not consider the alternative requests made by the various parties.

Judgment affirmed.

ADESKO and McGLOON, JJ., concur.


author: Mr. PRESIDING JUSTICE DRUCKER

text:
    John P. Merrick, Petitioner-Appellant, v. Continental Illinois National Bank and Trust Company of Chicago, as Exr. of the Estate of May Agnes Merrick, Deceased, et al., Respondents-Appellees.
    (No. 56166;
    First District (5th Division)
    February 2, 1973.

      Hardiman & Lynch, of Chicago, (A. J. Hardiman and George P. Lynch, of counsel,) for appellant.
    Jack R. Davis, of Chicago, (Paul M. King, of counsel,) for certain appellee.
    Kirkland & Ellis, of Chicago, (John E. Angle and David M. Burner, Jr., of counsel,) for other appellees.
   Mr. PRESIDING JUSTICE DRUCKER

delivered the opinion of the court:

John P. Merrick, hereinafter petitioner, filed suit to set aside the will of his sister, May Agnes Merrick, hereinafter the decedent. Tire respondents are the corporate executor, Continental Illinois National Bank and Trust Company, and the beneficiaries of decedent’s estate. Many of the beneficiaries are Catholic Church affiliated organizations and their religious leaders.

Four allegations in the petition charged the Catholic Church and the religious leaders of its various organizations with undue influence and fraud in procuring their bequests. They were stricken for being insufficient in law. The other three allegations were to the effect that the will was improperly executed due to the lack of proper attestation and that the decedent lacked the requisite testamentary capacity at the time of execution. Summary judgment was entered in favor of the respondents as to these allegations.

On appeal petitioner contends that (1) the court erred in striking the allegations of fraud and undue influence; (2) the court erred in granting summary judgment in favor of respondents as to tire allegations of improper execution and lack of testamentary capacity; (3) the petitioner was denied his right to adequate discovery; (4) the court erred in failing to construe Article IV of the will; and (5) the court erred in failing to enter an order of default as to certain respondents for failing to enter an appearance.

The facts follow:

The decedent died testate on January 20, 1970, at the age of 76. Her will, dated March 26, 1965, was admitted to probate on May 19, 1970. It first provided for the payment of debts, funeral expenses, costs of administration and estate taxes. Then, specific legacies totaling $12,000 were left to four Catholic organizations. A specific legacy of common stock was given to six other Catholic religious organizations, and specific legacies totaling $25,000 were given to seven lay individuals. This latter bequest included a $10,000 bequest to petitioner and $5,000 to his wife. All the decedent’s personal effects were given to decedent’s cousin and the residue to petitioner with substitute takers if he predeceased her.

The petition to set aside the will was filed on July 24, 1970. The sub-paragraphs which were stricken are as follows:

"(d) That at the time of the alleged * * * execution * * *, [the decedent] was under the influence, domination and control of certain priests and confessors, including Respondents, ARCHBISHOP OF CHICAGO, * * * REV. JAMES F. CUNNINGHAM, PASTOR OF ST. MARY’S CHAPEL AND PASTOR OF OLD SAINT MARTS CHURCH; REV. EDWARD T. O’MEARA, NATIONAL DIRECTOR OF THE SOCIETY FOR THE PROPOGATION OF THE FAITH; REV. ROBERT YOUNGS, PASTOR OF ST. JOACHIM’S CHURCH; and BISHOP FULTON J. SHEEN, which deprived her of her free agency and the freedom of her will.
[This subparagraph was subsequently amended on June 15, 1971, to include: ‘And that influence, domination and control was accomplished in part by Bishop Fulton J. Sheen while appearing on his and other television programs.’]
(e) That the Catholic Church and [the respondents named in subparagraph (d)], teach * ® ** members of the Catholic Faith, including the decedent, that a testator would personally benefit after her death if bequests are made to the Catholic Church, or any Catholic religious group, and [the decedent] was under said delusion at the time of the alleged execution * * *. [This subparagraph was subsequently amended on June 15, 1971, to include: ‘And that said teachings include bequests for masses.’]
(f) That the Catholic Church [and the respondents named in subparagraph (d)] are and were using bequests for purposes unrelated to religious efforts * * * and said Respondents have fraudulently concealed these purposes from the members of the Catholic Faith, including the decedent, and the decedent would not have executed [the will] * * * if the said Respondents had not fraudulently failed to disclose these purposes.
[This subparagraph was subsequently amended on June 15, 1971, to include: ‘And that such purposes included the promotion of racial integration, anti-war activities, anti-abortion law activites and civil rights activites.’]
(g) That the Catholic Church [and the respondents named in subparagraph (d)] have misrepresented to members of the Catholic Faith, including the decedent their true financial position and by so doing have fraudulently induced the decedent to make certain bequests which would not have been made by [her] if this financial information had not been fraudulently withheld from her.”

On February 8 a hearing was held wherein the attorney for the executor moved to withdraw as the attorney of record for all of the other respondents named in the petition. He initially filed an appearance on behalf of all of them since he believed it was the executor’s duty to uphold the will and the respondents, as beneficiaries, would all benefit if he was successful. The motion to withdraw was granted with leave to file an amended answer to the petition on behalf of the executor only. The amended answer was subsequently filed. Some of the respondents filed separate appearances, but others did not.

Petitioner’s discovery efforts were discussed at the hearing. He had previously served a “Notice of Deposition” on the attorneys representing the executor and certain other respondents. The notice listed seven named individuals, two of whom were involved in the drafting or execution of the decedent’s will. (Petitioner subsequently took their depositions.) The other five were clergymen. Petitioner submitted a series of 40 interrogatories to the executor and four clergymen. It not being clear that any of the clergymen had personal contact with the decedent during her lifetime or whether they were in any way involved in the procurement of her will, the court stated that the petitioner, in the first instance, should send each of them a few general interrogatories to determine if they knew the decedent at all. The court noted that if responses to these general interrogatories were positive, further discovery could be sought. Also, respondents’ motion to strike subparagraphs (d) through (g), supra, was granted.

On March 12 another hearing was held wherein respondents’ objections to 25 of petitioner’s 40 interrogatories and petitioner’s “Motion to Produce” certain correspondence and documents were sustained on the ground that the information sought therein was irrelevant to the issues remaining in the case, i.e., the propriety of the manner in which the will was executed and the decedent’s testamentary capacity. The judge indicated that he would strike all 40 interrogatories and reiterated his position that a few general interrogatories should be sent in the first instance. The court allowed 15 interrogatories to stand only after counsel for the executor stated that he believed petitioner was entitled to them.

Petitioners deposition was taken on March 30 and April 7. At the first deposition he stated that he had not been present when the decedent executed her will; that he was told by residents in the building in which she had lived that she did not sign the will in the presence of the three attesting witnesses. At the second deposition petitioner denied that he had previously stated that the will was not properly attested. When confronted with his original statement, he responded: “I don’t think anyone told me that”; he had just been “surmising”; he had “no knowledge at all” as to the issue.

He further stated that the decedent has worked as a stenographer for the Illinois Central Railroad until she retired in 1963; at the time of her death she lived alone in a one-room apartment at 7000 South Lake Shore Drive. She cooked for herself, clothed herself, bought her own clothes, paid her own bills, maintained and personally handled three bank accounts, walked without the assistance of a cane, had good eyesight with her glasses on, attended church regularly, had been a devout Catholic all her adult life, had made gifts to the Catholic Church prior to her death and had never been under psychiatric care. Petitioner knew of no one who could testify as to the decedent’s alleged mental incapacity.

Petitioner was also questioned as to the allegations of fraud and undue influence despite the fact that they had already been stricken. In relevant part he stated that the deceased had had no personal contact with the Archbishop of Chicago; that unnamed priests had told her that they needed money and that it would go for a good cause. Reverend James F. Cunningham had told her that his church, St. Mary’s, needed money; petitioner did not dispute the truth of this statement. Reverend Edward T. O’Meara had done nothing to deprive the deceased of her free will but had sent her literature asking for money; it was the usual literature sent out by the church. Petitioner was asked what the church did to fraudulently conceal its true financial position from the deceased. Petitioner responded, “I wouldn’t know.”

On June 15 petitioner filed various motions. Relevant here are the following: a motion requesting the court to construe Article IV of the deceased’s will; a motion to enter an order of default against various respondents for failing to file an appearance or responsive pleading, and that their bequests be stricken. Both motions were denied. Petitioner also filed the previously cited amendments to subparagraphs (d), (e) and (f) of the petition to set aside the will. Leave to file the amendments was granted but the court struck the subparagraphs as amended. Summary judgment as to subparagraphs (a), (b) and (c) was entered in favor of the respondents.

Opinion

Defendant first contends that the court erred in striking sub-paragraphs (d), (e), (f) and (g) of the petition to set aside the will. Subparagraph (d) contains only the general allegation that the deceased was under the influence, domination and control of the named respondents “which deprived her of her free agency and the freedom of her will.” This subparagraph is conclusory and therefore was properly stricken. As was stated in Sterling v. Kramer, 15 Ill.App.2d 230, 234, 145 N.E.2d 757:

“[T]he general rule in Illinois [is that] * # * the pleading of undue influence in a will contest must contain a specific recital of the manner in which the free will of the testator was impaired at the time the instrument was executed. A mere conclusion that the testator was influenced by the persuasive or dominant nature of one of the beneficiaries is not sufficient.”

(See Heavner v. Heavner, 342 Ill. 321, 174 N.E. 413.) The added allegation that the undue influence was, in part, a result of the deceased watching Bishop Fulton J. Sheen on television is of no aid to petitioner. He has failed to cite any authority to the effect that undue influence (according to its legally accepted meaning) may be imposed upon a testator over a nationwide commercial television program. We believe the proposition is without merit.

The allegations in subparagraphs (e), (f) and (g) are allegations of fraud. Subparagraph (e) charges various respondents with teaching the deceased that “a testator would personally benefit after her death” if bequests were made to the church, and that the deceased was under this “delusion” when she executed her will.

At the February 8 hearing counsel for the executor argued that this allegation should be dismissed because even if such instruction were given, it would be impossible to prove that it was false. This would be a requisite element of proof in a fraud case. (See Broberg v. Mann, 66 Ill.App.2d 134, 139, 213 N.E.2d 89.) On appeal petitioner states that his real contention is that the alleged teaching was contrary to the true tenets of the Catholic faith and this is where the alleged fraud lies; he has cited an abundance of religious authorities in support of his point. Even if this were true — and we make no such decision — this is not what he pleaded, and he cannot assert a new theory on review. (Benson v. Isaacs, 22 Ill.2d 606, 610, 177 N.E.2d 209; Broberg v. Mann, 66 Ill.App.2d at 138.) The trial court properly struck subparagraph (e).

Subparagraph (f) was also properly stricken. In the original petition it merely alleged that the respondents fraudulently concealed that the church used bequests for “purposes unrelated to religious efforts.” This allegation was purely conclusory and it appears that the amendment to subparagraph (f) to the effect such purposes included “the promotion of racial integration, anti-war activities, anti-abortion law activities and civil rights activities” was an attempt to cure this defect. However, the listed activities are certainly recognized as ancillary to what might strictly be termed “religious efforts” and the alleged failure to disclose the partial use of church funds for such activities does not constitute fraud.

Subparagraph (g) alleged that the Catholic Church and certain respondents misrepresented to its members and the deceased their true financial position and thereby “fraudulently” induced the deceased to make bequests she would otherwise not have made. Petitioner states in his brief that “the testator had a right to rely on these representations which were made by Respondents who were in a confidential relationship with the testator.” However, the complaint does not allege the existence of a confidential relationship between the respondents and decedent. It was stated in Bridge v. Newridge Chemical Co., 88 Ill.App.2d 337, 342, 232 N.E.2d 551, that:

“Fraud is not presumed. The facts constituting the fraud must be clearly and explicitly alleged. Anderson v. Anderson, 339 Ill. 400, 171 N.E. 504 (1930). The same rule applies to the existence of a confidential or fiduciary relationship. Nechanicky v. Morton Park Federal Savings & Loan Ass’n., 32 Ill.App.2d 444, 178 N.E.2d 197 (1st Dist 1961).” (Emphasis supplied.)

Therefore the allegation was properly dismissed.

We add that at petitioner’s deposition, when asked what the church did to conceal its true financial position from the deceased, petitioner responded, “I wouldn’t know.” At other points during the deposition he conceded that the alleged misrepresentations consisted largely of the usual literature the church sends out noting its need for donations and requesting the same. Therefore, even if this allegation were improperly stricken, entry of summary judgment in favor of the respondents with respect thereto would have been proper.

Defendant’s second contention is that the court erred in granting nummary judgment in favor of the respondents as to subparagraphs (a), (b) and (c) which alleged that the will was improperly executed because the deceased failed to sign it in the presence of the attesting witnesses, and the deceased lacked testamentary capacity at the time of execution.

It was stated in In re Estate of Jensik, 34 Ill.App.2d 130, 135, 180 N.E.2d 740, that:

“Summary judgment procedure is an important tool in the administration of justice. Its use in a proper case, wherein is presented no genuine issue as to any material fact, is to be encouraged. Allen v. Meyer, 14 Ill.2d 284, 292, 152 N.E.2d 576. The use of summary judgment procedure in the Probate Court where there is no genuine issue as to any material fact should be encouraged.”

We believe that based upon the depositions of the petitioner that were before the court when summary judgment was entered, there was no genuine issue of material fact and that respondents were entitled to a judgment as a matter of law. See Ill. Rev. Stat. 1969, ch. 110, par. 57(3).

As to the alleged improper execution of the will, petitioner at his first deposition stated that unnamed persons who lived in the apartment building where the decedent resided told him that the will was not properly attested. At his second deposition he admitted that he had no personal knowledge concerning the issue; that no one had ever told him that the will was improperly executed. As to the allegations of lack of testamentary capacity, petitioner in effect admitted that the decedent was a healthy and normally functioning elderly woman at the time she executed her will. The requisite testamentary capacity has been found to exist under circumstances more adverse than those presented here. See Quellmalz v. First Nat. Bank, 16 Ill.2d 546, 158 N.E.2d 591.

Defendant’s third contention is that he was denied the right to adequate discovery. He argues that his effort to gain discovery from various clergymen was frustrated by the court. We disagree. It was brought out during the hearings below that it was uncertain whether any of the clergymen who were the objects of petitioner’s discovery efforts had any personal contact with the deceased during her lifetime; some of the respondents were clergymen of national prominence. Thus the court suggested that petitioner send them general interrogatories to determine if they did in fact know the deceased and, if so, in what capacity. If these were returned with answers indicating that further inquiry was called for, the court assured the petitioner of its cooperation. Petitioner never bothered to send these general interrogatories and was allowed to send 15 interrogatories out of a series of 40 submitted to the court only because the executor’s attorney urged the court that he be permitted in doing so.

The trial judge has wide discretion in controlling the scope of discovery. (See Cohn v. Board of Ed. Waukegan Tp., 118 Ill.App.2d 453, 456, 254 N.E.2d 803.) Petitioner was allowed to take the depositions of two men who were connected with the drafting and execution of the decedent’s will. He was also permitted to take the deposition of two supervisors of the business at which the deceased was employed until two years before her death. We have carefully reviewed the record as to petitioner’s efforts to procure discovery from various clergymen and do not believe the court abused its discretion in regulating discovery proceedings as it did. See People ex rel. Gen. Motors Corp. v. Bua, 37 Ill.2d 180, 194, 226 N.E.2d 6.

Petitioner next contends that the court erred in failing to construe Article IV of the will. This contention is without merit. This action was one to set aside a will. Petitioner’s complaints and amendment thereto raised only the issues of improper execution, testamentary capacity, undue influence and fraud. The construction of Article IV of the will was simply irrelevant to the issues presented to the court and therefore it was not error for the court to deny petitioner’s request for construction.

Finally, petitioner contends that the court erred in denying his motion to enter an order of default as to certain respondents who failed to file an appearance. In support he cites Section 50(4) of the Civil Practice Act (Ill. Rev. Stat. 1969, ch. 110, par. 50(4)), which states that the court may enter a judgment of default for want of appearance or failure to plead. Section 5 of the Probate Act (Ill. Rev. Stat. 1969, ch. 3, par. 5) provides in relevant part that the Civil Practice Act shall apply to all proceedings covered by the Probate Act “except as otherwise provided in this Act.” (Emphasis supplied.) Section 93 of the Probate Act (Ill. Rev. Stat. 1969, ch. 3, par. 93), which we deem governs here, provides:

“It is the duty of the executor or the administrator * # # to defend a proceeding to contest the validity of the will. The court may order the executor or administrator * * * to defend or prosecute an appeal from the decree. In the event of the failure or refusal of the executor or administrator * * * to defend the proceeding or to defend or prosecute an appeal when ordered to do so by the court, the court upon its motion or on application of any interested party may appoint a special adimnistrator to defend or appeal in his stead.”

No cases directly on point have been cited by any of the parties nor have we found any during the course of our own research. However, we believe that the clear intent of Section 93 is to place the duty to defend a decedent’s last testament on a specific person, i.e., the executor, administrator or special administrator as the case may be.

An action to set aside a will is against the will itself and not the beneficiaries. (James Ill. Probate Law and Practice, § 90.3, and cases cited therein.) The beneficiaries under the will are necessary parties to the action. See Section 91 of the Probate Act. (Ill. Rev. Stat. 1969, ch. 3, par. 91.) However, they should not be defaulted for failure to appear or file a responsive pleading. Evén if an order of default had been entered, it would have availed petitioner nothing, as it would not have afforded a proper basis for depriving those beneficiaries of their bequests if the will was otherwise sustained as valid.

The decision of the circuit court is affirmed.

Affirmed.

ENGLISH and LORENZ, JJ., concur.