author: Mr. JUSTICE SEIDENFELD

text:
    Rockford Education Association et al., Plaintiffs-Appellants, v. The Board of Education of School District No. 205 of Winnebago County, Defendant-Appellee.
    (No. 72-27;
    Second District
    April 26, 1973.
    Drach, Terrell & Deffenbaugh, of Springfield, for appellants.
    Pedderson, Menzimer, Conde & Stoner, of Rockford, for appellee.
   Mr. JUSTICE SEIDENFELD

delivered the opinion of the court:

The plaintiffs, Bernard Frazer and Jerry Aures, two teachers who were completing their first year of service, were notified by the defendant Board of Education that they would not be rehired for the succeeding year. The plaintiff, Rockford Education Association, joined with them in filing a complaint for a declaratory judgment to nullify the dismissal procedure and to require that the plaintiff teachers be rehired. They appeal from an order dismissing the suit on the motion of the Board.

We are asked to construe Section 24—11 of the School Code (Ill. Rev. Stat. 1971, ch. 122, par. 24—11) which provides as material here that a first year probationary teacher “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, * *

It appears from the pleadings that a 60-day notice was given on April 6, 1971, to the plaintiff teachers, together with all other first year teachers at the school, notifying them that because of insufficient funds all teachers who had not entered upon contractual continued service would be dismissed. The notice further provided that should money become available, The Board would tender reinstatement offers to as many of the teachers as possible. On April 28, 1971, the Board sent reinstatement letters to 86 of the dismissed teachers. It was conceded that the April 6 letters of dismissal were received before the 60 days from the end of the school term. The complaint charges the Board with bad faith and subterfuge, alleging that it had no intention of dismissing all first year teachers when the initial notice was sent out; that to have done so would have prevented the school district from functioning and would have violated the professional negotiation agreement in effect between the teachers and the Board relating to maximum class sizes and other standards.

We agree with the trial court’s finding that the allegations of the complaint do not state a cause of action. It is clear that the literal requirements of the statute were met. And a reading of the School Code in its entirety affords no basis for us to reinterpret the clear language of Section 24 — 11 so as to deter a school board because of alleged improper motives.

The Teacher Tenure Law here in question was enacted for the protection of teachers of experience and designed to eliminate political, partisan or capricious considerations by a board of education in dealing with them. (Donahoo v. Board of Education (1953), 413 Ill. 422, 425-426; NcNely v. Board of Education (1956), 9 Ill.2d 143.) Plaintiffs have cited these cases but neither support their position here. In Donahoo, the court was ruling on a requirement that a specific reason be given for not renewing a second year probationer’s contract; while McNely refers to similar language requiring the giving of a specific reason as applied to a superintendent who had been employed for over two years and was under contractual continued service when his job was eliminated.

The School Code vests the board of education with the authority to dismiss teachers. (Ill. Rev. Stat. 1971, ch. 122, par. 10—22.4.) Such authority is limited only by Sections 24 — 11 to 24 — 15, inclusive. Under Section 24 — 11, a teacher having completed just one year of probation is only entitled to notice of dismissal 60 days before the end of the school year; whereas under Section 24 — 12, a teacher in contractual continued service status is entitled to procedural protection such as a hearing, specific charges and proper cause, warnings in remediable cases, and preference in rehiring where dismissal is due to the decrease in the number of teachers. The Teacher Tenure Law appars to be designed primarily for the protection of tenured teachers, evidencing an intent to give first year probationary teachers the least amount of protection and the board the maximum amount of flexibility in dealing with such teachers so long as the notice requirement is fulfilled. People ex rel. Ruff v. School Directors (1948), 335 Ill.App. 445, 448. See also Hankenson v. Board of Education (1957), 10 Ill.2d 560, 563. .

Presumably the purpose of the 60-day-notice provision to first year probationary teachers is to provide them with some certainty as to whether or not they will be employed at the school for the next term. Here, the notice did give the plaintiffs information that the board might not rehire them and that they could seek employment elsewhere. The Board’s good faith or lack of it would have no bearing on the understanding of a teacher that he individually could not be sure of being rehired so that he could seasonably look for other employment. Thus the notice serves a purpose of avoiding prejudice to teachers, regardless of the Board’s motives. We have been advised in oral argument that a number of the teachers had, in fact, taken other employment at the time of the reinstatement offer, which lends some practical illustration of the effect of the notice.

We affirm the judgment below.

Affirmed.

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


source: Caselaw Access Project

author: Mr. JUSTICE ABRAHAMSON.

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Wayne E. Martin, Defendant-Appellant.
    (No. 72-124;
    Second District
    May 2, 1973.
    Paul Bradley, of Defender Project, of Elgin, for appellant.
    F. Lawrence Lenz, State’s Attorney, of Freeport, for the People.
   Opinion by

Mr. JUSTICE ABRAHAMSON.


author: Mr. PRESIDING JUSTICE THOMAS J. MORAN Mr. JUSTICE SEIDENFELD

text:
    Robert Glidden, Individually, and as Admr. of the Estate of Osee Glidden, Plaintiff-Appellant, v. The Farmers Automobile Insurance Association, Defendant-Appellee.
    (No. 71-349;
    Second District
    April 17, 1973.

      SEIDENFELD, J., dissenting in part.
    Yalden & Ridings, of Rockford, (Craig A. Ridings, of counsel,) for appellant.
    Maynard & Brassfield, of Rockford, for appellee.
   Mr. PRESIDING JUSTICE THOMAS J. MORAN

delivered the opinion of the court:

The plaintiff, Robert GHdden, individually and as the administrator of his deceased wife’s estate, brought a declaratory judgment action to determine the liability of defendant, The Farmers Automobile Insurance Association, under automoMe insurance policies issued to plaintiff. From a judgment favoring the defendant, plaintiff appeals.

Defendant issued three automobile Habffity policies covering three separate vehicles. Part IV of each policy offered protection against uninsured motorists and specified a $10,000 maximum payment allowable for each person and $20,000 for each accident. Part II of these policies provided expenses for medical services up to a maximum of $2000 for each person.

On August 31, 1970, plaintiff’s wife, while a pedestrian, was struck and killed by an auto driven by an allegedly intoxicated uninsured motorist. The policies were in force and, under their provisions, plaintiff’s wife qualified as an insured.

It was plaintiff’s contention that the liability limits of all policies could be aggregated, entitling him to a maximum of $30,000 under Part IV of his coverage and an additional $6000 maximum, under Part II; that payment made under Part II coverage should not be credited against any award under Part IV; that defendant had no subrogation right to monies which might be recovered by plaintiff in a pending dram shop action; and that plaintiff was entitled to court costs and attorney’s fees.

The trial judge ruled that, under Part IV, plaintiff was limited to a maximum of $10,000 and, under Part II, to $2000; that any recovery up to the maximum under Part II must be applied to reduce the liability, if any, under Part IV; that defendant was entitled to subrogation under Part IV, and that plaintiff was not entitled to attorney’s fees or costs.

On appeal, the first issue is whether the limits of liability of each policy, under Part IV coverage can be aggregated to a maximum of $30,000. In each policy, the pertinent provision of Part IV reads:

“Other insurance: With respect to bodily injury to an insured while occupying an automobile not owned by the named insured, the insurance under Part IV shall apply only as excess insurance over any other similar insurance available to such insured and applicable to such automobile as primary insurance, and this insurance shall then apply only in the amount by which the limit of liability for this coverage exceeds the applicable limit of liability of such other insurance.
Except as provided in the foregoing paragraph, if the insured has other similar insurance available to him and applicable to the accident, the damages shall be deemed not to exceed the higher of the applicable limits of liability of this insurance and such other insurance, and the company shall not be liable for a greater proportion of any loss to which this Coverage applies than the limit of liability hereunder bears to the sum of the applicable limits of liability of this insurance and such other insurance.”

Defendant asserts that the second of the quoted paragraphs is applicable because plaintiff owns multiple policies; that the damages cannot exceed $10,000, this figure being the highest of the appficable Emits of the three policies, and that on the basis of the pro-rating directive, $3333.33 wiU be paid under Part IV of each policy.

Plaintiff argues that “other insurance” clauses are intended to avoid one company’s paying a disproportionate amount of a loss which properly should be shared by another carrier and that, consequently, “other insurance” should be interpreted as insurance separate and distinct from the combined policies provided by defendant.

Plaintiff relies upon the case of United Services Automobile Association v. Dokter, 478 P.2d 583 (Nev. 1970), the pertinent facts being identical to those present except that there the insurance company had issued only two policies. The majority held that the insured could recover the limits of both policies because “other insurance” clauses become ambiguous when contained in more than one policy issued to an individual by' the same company. The dissent stated:

“* « # q’hg majority of the court indicates that there is no ambiguity in the other insurance’ clause when two different insurance companies are involved, but that an ambiguity arises when the same insurance company issues two policies to the same person. I do not agree with this contention. We are concerned here with insurance policies and their interpretation, not insurance companies. A careful reading of the language in the ‘other insurance’ clause shows that it is free from ambiguity. The clause clearly states that the limit of liability is the highest amount of liabifity set forth in aU policies involved, whether the policies are with the same company or different companies. The clause also clearly fixes the Habüity of a company under each policy on a pro rata share basis. Horr v. Detroit Automobile Inter-Insurance Exchange, 379 Mich. 562, 153 N.W.2d 655 (1967).”

The courts have taken varied approaches in determining the validity and interpretation of “other insurance” clauses contained in automobile liability insurance policies. (28 A.L.R.3d 551; Putnam v. New Amsterdam Casualty Co., 48 Ill.2d 71, 75-80 (1970).) Having read all cases cited by both parties, we find controHing those general principles on “other insurance” which have been set forth by our Supreme Court. In the two leading cases, Morelock. v. Millers Mutual Insurance, 49 Ill.2d 234 (1971), and Putnam v. New Amsterdam Casualty Co., supra, the Court held that “other insurance” provisions do not frustrate the legislative purpose of tire statute requiring protection against uninsured motorists (Ill. Rev. Stat. 1969, ch. 73, sec. 755a(l)); that such clauses are valid; that when “other insurance” clauses of different policies are in conflict, they should be reconciled and whenever possible, effect the intention of the parties. The Court expressed disapproval of the concept of “stacking" policies (aggregating benefits from more than one policy) when it said:

* If * * ’ [stacking] were mandated as a matter of public policy, motorists would be in the unusual position of preferring that any injuries sustained be at the hands of uninsured motorists rather than motorists who comply with the Financial Responsibility Law * * *” Putnam v. New Amsterdam Casualty Co., supra, 86.

Although in Morelock the same company had issued both policies, the court gave effect to the clause. In view of these pronouncements, the trial judge, in the case at bar, correctly interpreted the “other insurance" provision under Part IV and gave the policy the effect which its language clearly commands. This conclusion follows the reasoning of the dissent in Dokter, supra, and is in accord, we feel, with the rationale of our Supreme Court. See also, Keeble v. Allstate Insurance Co., 342 F. Supp. 963 (E.D. Tenn. 1971).

Under Part II, the “other insurance’ provision reads:

“If there is other automobile medical payments insurance against a loss covered by Part II of this policy the company shall not be liable under this policy for a greater proportion of such loss than the applicable limit of liability stated in the declarations bears to the total applicable limit of liability of all valid and collectible automobile medical payments insurance; provided, however, the insurance with respect to a temporary substitute automobile or non-owned automobile shall be excess insurance over any other valid and collectible automobile medical payments insurance.”

This paragraph is substantially different from the second paragraph of the quoted provision of Part IV. The Part IV paragraph first restricts the amount recoverable to the higher of the limits of liability and then provides for pro-rating. The Part II clause, however, has no limiting language; it provides only for pro-rating. The trial judge erred, therefore, in finding that plaintiff can recover a maximum of $2000 under Part II; we find he may recover up to an aggregate maximum of $6000.

The policies’ limits of liability appear under Part IV:

“(d) The company shall not be obligated to pay under this Coverage that part of the damages which the insured may be entitled to recover from the owner or operator of an uninsured automobile which represents expenses for medical services paid or payable under Part II.”

We have interpreted this provision in Melson v. Ill. National Insurance Co., 1 Ill.App.3d 1025 (1971), and, in view of that rationale, we find that the trial judge here erred in ordering the award under Part II to be credited against any recovery under Part IV.

Plaintiff next argues that subrogation should not be allowed against any possible recovery under the pending dram shop suit. The trial judge found defendant to be entitled to:

“* * * subrogate for any monies recovered by the plaintiffs by settlement or judgment obtained against any person or organization legally responsible for bodily injuries to the extent of payment made by the insurer under the Uninsured Motorist provision of the policies, including recovery in lawsuit #G24436 pending in the Circuit Court * #

The case of Remsen v. Midway Liquors, Inc., 30 Ill.App.2d 132 (1961), is dispositive of this issue. There the court held that a “Trust Agreement,” identical to the one contained herein, provided subrogation to the rights of an insured against the dram shop that caused the loss. Plaintiff attempts to distinguish Remsen because, in that case, the insurance company had already made payment to the insured, while here the defendant seeks to have plaintiff”s interest in a dram shop action assigned before establishment of the right to or extent of any recovery under the policies. It is claimed that the court’s action in this respect is against public policy.

The trial judge’s finding, and the Trust Agreement by its terms, clearly state that subrogation is allowed only to the extent of payment made by the insurer to the insured. Tire court’s order was an anticipatory determination whereby, if it develops that defendant pays the plaintiff under Part IV of the policy, the right to subrogate, up to the amount paid, will vest in the defendant. This is all the court concluded by its order. The determination at this time has forestalled the possibility of multiple suits on the issue. Such procedure cannot be said to be against public policy.

Finally, plaintiff argues that he is entitled to attorney’s fees due to defendant’s refusal to arbitrate the issues of liability and damages prior to questions of coverage and subrogation being settled. Under the arbitration provision contained in plaintiff’s policies, only the issues of liability of the other motorist and the amount of damages resulting from the accident are subject to arbitration. (Flood v. Country Mutual Insurance Co., 41 Ill.2d 91 (1968); Farmers Insurance Group v. Harris, 4 Ill.App.3d 372, 375 (1972).) Issues relating to coverage under the policy and issues unrelated to liability and to damages are for the court’s determination. Issues here litigated were not arbitrable and defendant’s refusal to arbitrate does not allow plaintiff to recover court costs and attorney’s fees.

We affirm that portion of the judgment which, (1) limits plaintiff to a maximum recovery of $10,000 under Part IV coverage, (2) allows defendant subrogation under Part IV, and (3) denies plaintiff costs and fees.

We reverse that portion of the judgment which limits the plaintiff to a maximum of $2000 under Part II coverage and hold that an aggregate maximum of $6000 is available. We also reverse the finding that the recovery under Part IV will automatically be credited with those funds paid out under Part II and direct attention to the Melson decision for guidance.

Affirmed in part, reversed in part, and remanded.

ABRAHAMSON, J., concurs.

Mr. JUSTICE SEIDENFELD

dissenting in part:

I respectfully dissent from that portion of the majority opinion holding that the “other insurance” clause is unambiguous in this situation, and is applicable to limit defendant’s uninsured motorist liability to $10,000. The majority relies on two Supreme Court cases (Morelock v. Millers Mutual Insurance (1971), 49 Ill.2d 234; Putnam v. New Amsterdam Casualty Co. (1970), 48 Ill.2d 71) which express disapproval with the concept of stacking policies. However, neither dealt with a fact situation similar to that before us. In Morelock, the plaintiff sought recovery under her own policy and under that of her father, whose car she was driving at the time of the accident. While both policies were issued by the same company, they were not issued to the same person, and presumably the different insureds paid the premiums on their respective policies. The father’s policy was held to be “other insurance”. In Putnam, the plaintiffs sought recovery under their own policy and the policy of a friend, in whose car they were riding when the accident took place. Again, the friend’s policy was held “other insurance”. The court disapproved of stacking policies because this would place motorists in the unusual position of preferring that any injuries sustained be at the hands of uninsured motorists rather than motorists who comply with the Financial Responsibility Law. However, the court agreed with the plaintiff that the Illinois uninsured motorist statute (Ill. Rev. Stat. 1969, ch. 73, par. 755a) does not prevent motorists from obtaining, or companies from issuing, uninsured motorist protection in excess of the minimum statutory requirements. See also Deterding v. State Farm Farm Mut. Auto. Insurance Co. (1966), 78 Ill.App.2d 29.

In the case before us, not only are all three of the pohcies issued by a single company, but they are issued to a single insured, who has paid the company three premiums for this coverage. The insurance company does not deny that the accident is covered by the uninsured motorist provisions of aH three policies, and that it accepted separate premiums to provide this coverage under each policy. In such case, it is not the stacking of policies which puts plaintiff in a better position than if the accident had been caused by an insured motorist. Rather, the increased coverage is caused by plaintiff’s payment of multiple premiums, and the defendant’s election to issue multiple policies providing similar items of coverage. See Woolston v. State Farm Mutual Insurance Co. (W. D. Ark. 1969), 306 F.Supp. 738; Sturdy v. Allied Mutual Insurance Co. (Kan. 1969), 457 P.2d 34, 42.

I would further conclude that the term “other insurance” is ambiguous in this situation. It has been stated that there is no purpose in proration unless the “other insurance” was written by another company, since such clauses are designed to preclude payment of a disproportionate amount of a loss shared with another company. United Services Automobile Association v. Dolder (Nev. 1970), 478 P.2d 583, 584. See also Deterding v. State Farm Mut. Auto. Insurance Co. (1966), 78 Ill.App.2d 29, 36.

In Morelock, “other insurance” was held to include a policy written by the same company but to different insureds. To extend this interpretation of the policy language to permit the insurer to issue, separate policies to the same insured and to pro-rate the loss among these pohcies, seems an unfair, and unwarranted result. The insured would not reasonably anticipate that his own policies 'tvould be regarded as “other insurance”. When the fact that the same company issued the policies is coupled with the fact that the pohcies are issued to the same insured, who has paid the separate premiums, an ambiguity arises which should be resolved in favor of the insured.

       We are aware that we here interpret the second paragraph of the “other insurance” clause, while in Morelock the Court interpreted the first paragraph. However, that decision clearly indicates that the Court does not sanction “stacking” even when the multiple pohcies are issued by the same carrier.


author: Mr. JUSTICE ABRAHAMSON

text:
    Arbor Theatre Corp., Plaintiff-Appellant, v. Campbell Soup Company, Defendant-Appellee.
    (No. 72-6;
    Second District
    April 25, 1973.

      Rehearing denied May 31,1973.

    Donovan, Dichtl, Atten, Mountcastle & Roberts, of Wheaton, for appellant.
    Robert W. Hotte, of Elmhurst, for appellee.
   Mr. JUSTICE ABRAHAMSON

delivered the opinion of the court:

This action was brought in the circuit court of Du Page County to enjoin continuation of defendant’s compost producing operation on its Prince Crossing mushroom farm, and to recover damages for loss of revenue and patronage at plaintiff’s outdoor “Cascade” theatre, which is adjacent to the farm. Following a bench trial the court found the issues for the defendant, denied all relief sought, and dismissed the second amended complaint with prejudice. Plaintiff appeals from that judgment.

Defendant purchased the farm on Prince Crossing Road, south of Route 64 in Du Page County, consisting of 201 acres in November 1945 in what was then, and still is, primarily a rural area. Its mushroom growing operation began in 1947 and has continued to the present. Composting is done on a parcel of about 25 acres at the northeasterly portion of its farm. When defendant acquired this parcel, it was zoned “F-Farming District” which permitted mushroom barns and incidental uses.

It is not controverted that the production of compost is an incidental use, inasmuch as compost is required for growing mushrooms in the bams. This is done by inoculating a spore culture of mushroom into the bed of compost. The compost is made of hay, corn cobs, horse manure and commercial fertilizers. Hay and corn cobs, which do not produce objectionable odors, are stored separately in the open. Defendant maintains about a three-month inventory of hay and com cobs and applies the “first-in first-out” procedure in their use. Commercial fertilizers are stored inside the building in paper and burlap bags. Manure is brought in daily, Monday through Friday; corn cobs are then placed on top of the manure and fertilizers are added. It is then mixed, moved inside the building by 5 P.M., and the building is closed. The following morning hay is added to the mixture and the material is placed inside an enclosed compost kiln, where it remains until the following morning. The composting process gives off an ammonia odor. The resulting compost is loaded into trucks, covered with canvas, and driven to the growing houses about % mile south of the compost area where it is used for the planting and growing of mushrooms.

In December 1960, more than 13 years after defendant began operating its mushroom farm, plaintiff contracted to buy a 23-acre tract on Route 64 to the northeast of defendant’s mushroom farm. Plaintiff was aware of the nature of the operation and its attendant odors. One of plaintiff’s principal officers testified that he visited defendant’s farm some time prior to the purchase and was advised by one of defendant’s officers that the odors were worse at times than at the time of the visit, but he did not seem impressed. He. further testified that the directors of the plaintiff discussed “the odor situation” prior to the purchase, but plaintiff nevertheless closed the deal and built its drive-in theatre at that location.

The theatre opened for business in August 1961. It is generally operating from April to November. When there is a southwest wind, the odor at the theatre is noticeable as a manure odor. Other witnesses described the odor as fishy, sour, strong musty and irritating. The theatre manager testified, from a record that he kept for the year 1969 and 1970 (to the date of trial in July), that the smell was bad on 71 days. Defendant’s testimony cited other odor producing elements in the vicinity of plaintiffs theatre; an oxidizing pond on or near plaintiffs property; a swamp or marsh of about 7 acres north of defendant’s property with stagnant waters covered by green scum which produces a marshy odor; odors from the Du Page River nearby; and a riding stable immediately to the north of plaintiff’s theatre across Route 64 (which has been operating for 23 years), where manure is collected and spread on a parcel across the road next to plaintiff’s property.

Since plaintiff’s outdoor theatre was established and prior thereto, defendant modified its operation and has tried various experiments in order to control, reduce and eliminate the odors: it discontinued storing and aerating the manure out-of-doors; the compost is brought indoors as soon as it is mixed and placed in the rotary kiln which was installed; the area is hosed down and brushed daily; a lagoon system was installed to reduce bacteria in the surface water run-off; spraying and fogging for insect control is practiced; commercially prepared compost was used; spent compost is being used experimentally; and experiments continue with the use of potassium permanganate.

Plaintiff contends that defendant’s operation of its mushroom farm was proved unreasonable and created a substantial invasion of plaintiff’s property. Whether defendant’s invasion of plaintiffs rights is substantial and unreasonable is a question of fact. (Patterson v. Peabody Coal Co., 3 Ill.App.2d 311, 316.) The trial court made extensive findings. One of these was that defendant’s invasion of plaintiff’s rights was “neither substantial enough or unreasonable to such a degree as would warrant granting plaintiff the relief requested.” The court’s findings will not be disturbed unless they are clearly against the manifest weight of the evidence. Chapman v. Huttenlocher, 125 Ill.App.2d 39, 47; Elgin Lumber & Supply Co., Inc. v. Malenius, 90 IlI.App.2d 90, 97.

Defendant’s mushroom farm and its composting operation concededly produced odor on occasion since it was established. Plaintiff knew of this condition when it was considering the purchase of its property for use as an outdoor theatre but nevertheless purchased the property and erected its theatre in 1961 at that location. One of plaintiffs witnesses, a home owner who purchased a parcel close to the mushroom farm in 1961, testified as to the effect the “objectionable odors” had on the use of his property. He testified that he was aware of the odors for several years, which for the first few years he attributed to some “farmer fertilizing his fields.” Then he became aware of defendant’s compost operation, but “in spite of the Campbell Soup Farm” he proceeded to build his home there in 1962.

Plaintiff complains that the court’s finding as to reasonableness was based on the fact that this area was essentially rural and that defendant’s composting operation was a legitimate non-conforming use, but that the court ignored the Du Page County ordinance setting forth performance standards on odor emissions which prohibit such emissions across boundary lines. That ordinance provides in substance that: “No use already established * # * shall be so altered or modified as to conflict with # # # performance standards governing odorous materials * ” *” which prohibit “emission of odorous matter in such quantities as to be readily detectable at any point along lot lines or as to produce a public nuisance or hazard beyond lot lines ” *

Nothing in this record indicates that defendant’s compost operation was “so altered or modified as to conflict” with the performance standards. On tire contrary, all of the steps taken by defendant, including the construction of a kiln building in 1964, were designated to reduce “emission of odorous matter” not “to conflict with” the performance standards. Defendant was therefore in full compliance with that ordinance.

The occasional odors and any discomfort resulting from the compost operation on defendant’s mushroom, farm were obviously not “wantonly caused from malice or wickedness,” but from defendant’s pursuit of a useful occupation. (Cooley on Torts, 4th ed., vol. 3, p. 163.) The occasional discomfort from such odors must be submitted to when the occupation complained of “is suitable to the locality and when the employment of. one’s premises under the circumstances is reasonable.” (Gardner v. International Shoe Co., 386 Ill. 418, 429-430.) Defendant’s composting operation is suitable to the locality and is reasonable under the circumstances.

We are unable to say that the trial court’s decision was against the manifest weight of the evidence and therefore need not consider other points raised by the parties.

Judgment affirmed.

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


author: Mr. JUSTICE AKEMANN

text:
    The Department of Public Works and Buildings, Plaintiff-Appellee, v. Carl Jensen et al., Defendants-Appellants.
    (No. 72-8;
    Second District
    April 19, 1973.

      Rehearing denied May 31,1973.

      Mark Drobnick, of Waukegan, for appellants.
    William J. Scott, Attorney General, of Chicago, (Loretta C. Didzerekis and John W. Damisch, Special Assistant Attorneys General, of counsel,) for appellee.
   Mr. JUSTICE AKEMANN

delivered the opinion of the court:

This is an appeal from the trial court judgment in a land condemnation case to determine the value of nine parcels of land in Lake County, Illinois. No cross-complaint was filed in the trial court so the only issue was the value of the land taken. The jury fixed the valuations of the land taken in its verdict and, since the defendants had withdrawn an amount in excess of the verdict returned, a judgment was entered against the defendants in the sum of $4100 for the excessive withdrawal, from which judgment order this appeal is taken.

Five assignments of error are made by defendants’ brief as follows:

(1) that defendants’ motion to strike plaintiffs expert testimony should have been granted;

(2) that defendants’ offered testimony on comparable sales should have been received;

(3) that plaintiff’s expert testimony was in error in contending certain parcels were non-buildable;

(4) that a volunteered statement by one of plaintiff’s witnesses constituted reversible error; and

(5) that the trial court’s conduct toward defendants’ counsel constituted reversible error.

The plaintiff’s proof consisted of testimony of a civil engineer employed by the Division of Highways who generally described the relationship of the several properties being condemned to the improvement for which they were taken; three appraisers who qualified as experts on the valuation of the property taken; one witness who purchased property in the immediate area of several of the properties; and a contractor who located sewer lines in the area of the properties and who testified to the purchase and sale of several comparable properties in the area.

The defendants’ proof consisted of testimony of a civil engineer who testified on the dimensions of the whole parcels and on the part taken and to the location of sewer lines in the area; one of the defendants who testified to many rezonings for the purpose of rebutting plaintiff’s witnesses’ testimony on highest and best use being residential and to show probability of rezoning and who also testified to value based on probability of rezoning for business use; a real estate broker and insurance agent, Turowski, with a B.A. degree from Lake Forest College without indication of any additional education or training in appraisal or real estate courses, without membership in any real estate or appraisal associations, or multiple listing service, whose primary sales were to the defendants themselves and whose sales and purchases average eight to ten a year; and another broker, Sutkus, who testified on values of the several parcels, and whose qualifications as an appraiser were at best minimal.

With respect to defendants’ first assignment of error, they argue that with regard to several of the parcels, a serious error was made in not describing an adjacent vacated alley as a part of the whole parcel. This contention is not valid for several reasons:

(a) Defendants stipulated to plaintiff’s exhibits on the boundaries in question without objection to their now-exclusion of any alley. They cannot lay back and later try to take advantage of a misdescription in which they acquiesced. There was no proof of discrepancy on the land taken.

“The petition, verdict and judgment correctly described the premises, and it is clear from the record that the jury viewed and the witnesses testified concerning the actual premises in question.” Dept. of Public Works & Bldgs, v. Drobnick, 14 Ill.2d 28, 33.

(b) Defendants neither offered nor made proof of title to one-half the vacated alley. Whether they acquired title to one-half of the vacated alley may be dependent upon the original ownership of the alleyway prior to its dedication as an alleyway.

(c) The alleyway was in the rear of the property while the taking was of a part of the frontage. The presence of a greater or lesser amount of property in the rear would not affect the value of the frontage but would only affect the value of the remainder. Value of remainder or damage to remainder were not in issue in this case.

(d) The defendants’ witnesses were permitted to testify concerning the alley area and to contradict plaintiff’s experts so that the matter was before tire jury.

(e) The discrepancies of square footage testified to by the several expert witnesses were so small as to be virtually negligible and in one or more instances the plaintiff’s figures exceeded the defendants’ with the alley included.

(f) When defendants were given the opportunity to testify on the subject of the alleyway, the only direction their testimony assumed was to indicate a potential for probable rezoning.

(g) Lastly, we agree with plaintiff that the motion was, in any event, not timely made during or at the conclusion of the testimony of each of the expert witnesses. City of Chicago v. George F. Harding Collection, 70 Ill.App.2d 254, footnote p. 274; Dept. of Bus. & Econ. Develop. v. Schoppe, 1 Ill.App.3d 313.

With respect to defendants’ contention that “comparable” sales should have been received, the rule is fully set forth in Dept. of Public Works & Bldgs. v. Drobnick, 14 Ill.2d 28, 34, as follows:

“It is weU settled that evidence of voluntary sales of comparable property in the vicinity is admissible in evidence to aid the jury in determining the value of the land to be taken. (City of Chicago v. Harbecke, 409 Ill. 425.) However, the party offering the proof must first show that the land so sold was similar in locality and character to the land sought to be acquired. (Forest Preserve District v. Chilvers, 344 Ill. 573, 577.) And tire matter of admission of comparable sales must be left largely to the discretion of the trial judge. (Forest Preserve District v. Kercher, 394 Ill. 11; Forest Preserve District v. Dearlove, 337 Ill. 555.)”

True, neither distance nor size are of themselves alone bases for exclusion of comparable sales but, as set forth in defendants’ cited cases, are factors to be considered.

In City of Chicago v. Harbecke, 409 Ill. 425, 430, it is said:

“With the same frequency with which the issue of similar sales has been raised in this court, we have pointed out that the exact limit either of similarity or difference, or of nearness or remoteness of sale in point of time, is difficult, if not impossible, to prescribe by any arbitrary rule, but must to a large extent depend on the character and location of the property and the circumstances of the case. As a corollary to the foregoing rule, it is likewise held that the question of similarity must be submitted to the trial judge and must rest largely in his discretion. Forest Preserve Dist. v. Wing, 305 Ill. 194; Forest Preserve Dist. v. Caraher, 299 Ill. 11; Forest Preserve Dist. v. Barchard, 293 Ill. 556.”

In Kankakee Park Dist. v. Heidenreich, 328 Ill. 198, 204, it is said:

“It is incumbent on the party offering proof of sales of other lands to show, as a foundation for its admissibility, that the lands sold were similar in locality, quality, character and usefulness to the lands in question and that the sales were recently made and under circumstances indicating that they were sold freely and in the open market.”

No place in the record is there an offer of proof by defendants to show the similarity required by the above cases.

We find no abuse of the trial court’s discretion.

Defendants-appellants next contend that plaintiff’s expert valuation witnesses were in error in contending the lots were not of sufficient size for buildability. This was their opinion based on the ordinance and on the lack of sewer and water facilities. Certainly we cannot question their right to an opinion. Also, nowhere is there a rule that defendants could not offer counter-evidence, including the ease of bringing sewer and water to the premises and the approximate cost thereof — none of which was offered.

It seems that defendants expect the plaintiff to accept defendants’ theory of the case and present evidence for defendants; and when plaintiffs refuse, to then cry “error.” No such obligation exists on the part of plaintiff, nor are defendants justified in inferring any lack of ethics on the part of die condemning authority. No case is cited suggesting that condemnation is not an adversary proceeding.

Defendants’ fourth contention suggests that one of the plaintiffs witnesses said, “In all of the appraisals I am in, the people settle up and there is no trial.” The statement does not show in the transcript and defendants’ counsel purports to make it a part of the record by motion for correction of the record and affidavit in the trial court. His motion was denied, but he now contends it is part of the record and argues the court should have declared a mistrial because of it.

Since the court denied the motion, it is not a part of the record. We take no cognizance of it. There is no protection of the record if it can be so easily altered. County Board of School Trustees v. Bendt, 30 Ill.App.2d 329.

To properly evaluate the defendants’ fifth contention that the trial court’s attitude toward defendants’ counsel in the presence and hearing of the jury precluded them from getting a fair trial, we have examined the entire transcript of the record. The words referred to in his brief were spoken and are a part of the record, but much of the rest of counsel’s brief is editorializing which cannot come from the written word, such as, “constantly rebuking” and “either shouting at him * * * or * * * was shouting.”

The record shows a good deal of admonition to counsel throughout the trial. If the spoken word correctly reflects the facts existing at the time of the speaking, then we believe the admonitions to have been justified and in any event not such as to be highly prejudicial. Attorneys must remember that they are officers of the court and that if they fail to conduct themselves with propriety it is the judge’s duty to restrain them. (Waukegan Park Dist. v. First Nat. Bank, 22 Ill.2d 238.) It might be observed that the case above cited involved the same attorney.

In oral argument, the defendants also argued that the verdicts were not within the range of the testimony on the low side. We have researched the record and the following chart shows the comparisons of the several witnesses’ appraisals for the plaintiff with respect to the parcel numbers and the verdicts. The verdicts are clearly in excess of the lowest appraisal.

In conclusion, it has been repeatedly held that where in condemnation proceedings the evidence of value is conflicting and the jury having viewed the premises fixes the amount of compensation within the range of the testimony for the land taken, the award will not be disturbed unless there is something in the record which shows that the verdict was a clear and palpable mistake or the result of passion and prejudice, or, , unless there was some erroneous ruling which might have misled the ' jury. Waukegan Park Dist. v. First Nat. Bk., 22 Ill.2d 238; City of Mt. Olive v. Braje, 366 Ill. 132; Dept. of Public Works & Bldgs, v. Drobnick, 14 Ill.2d 28; City of Chicago v. Harbecke, 409 Ill. 425.

The record in this case does not support defendants-appellants’ contentions. j

A motion to strike the brief and excerpts of defendants-appellants for failure to comply with Supreme Court Rules 341(e), 341(e) (2), 342, and 344(b) was taken with the case. Our decision eliminates the need to rule on this motion.

We do, however, commend to defendants’ counsel a comparison of the typing and copying of his excerpts, brief, and argument for the defendants-appellants with that of the brief and argument for plaintiffappellee. Being most charitable to him, compliance with the Supreme Court Rules is at best minimal.

The judgment of the trial court is affirmed.

Affirmed.

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


author: Mr. PRESIDING JUSTICE ALLOY

text:
    Harry L. Erickson, Plaintiff-Appellant, v. Edward Walsh et al., Defendants-Appellees.
    (No. 72-126;
    Third District
    April 30, 1973.

      Louis E. Olivero, of Peru, for appellant.
    Andrew O’Connor and Ernest Pool, Jr., both of Ottawa, for appellees.
   Mr. PRESIDING JUSTICE ALLOY

delivered the opinion of the court:

Plaintiff Harry L. Erickson appeals to this court from judgments of the Circuit Court of La Salle County entered (1) on a directed verdict in favor of defendant F. W. Lewis and (2) as a result of a jury verdict in favor of defendant Edward Walsh, in the Circuit Court of LaSalle County. Plaintiff Harry L. Erickson had filed a two-count complaint in the Circuit Court of La Salle County in which he sought recovery for personal injuries sustained by him as a result of an automobile accident. Defendant Edward Walsh, the driver of the car in which plaintiff was riding, and F. W. Lewis, the operator of the other automobile involved in the incident, were joined as defendants. At the close of evidence for the plaintiff, the trial court directed a verdict as to Count II of the complaint in favor of defendant Lewis. Thereafter, when the jury returned the verdict of not guilty as to defendant Walsh on Count I of the complaint, the trial court entered judgment in favor of defendant Walsh as to such count. Defendant F. W. Lewis also prosecutes a cross-appeal in this court in which he contends that the trial court erred in denying his motion for recovery of expenses from plaintiff incurred by defendant Lewis as a result of die litigation.

The record discloses that early in the afternoon on Sunday, August 28, 1966, the day of the accident, defendant Walsh and a friend, Vaughn Williamson, the brother-in-law of plaintiff, left the Walsh home near Ottawa, Illinois, and traveled in the 1965 Pontiac Convertible owned by Walsh, to Leo White’s tavern near Wedron, Illinois. At the tavern they met another friend, Fred Carlson, and also (according to the plaintiff) defendant Walsh testified that the four people then left the tavern and traveled to plaintiff’s home so that plaintiff could advise his wife that he was going along for a ride. According to the plaintiff and Williamson, plaintiff did not appear at Leo White’s tavern at all but rather the three others went in defendant Walsh’s car to plaintiff’s home to ask him to go for a ride. It was stated that defendant Walsh wanted to look at a truck which had been advertised in the paper. Irrespective of where the initial meeting with plaintiff took place, it does not appear that such meeting was by mutual prior arrangement.

It is clear, in any event, that the group left plaintiff’s home shortly after their arrival there in defendant Walsh’s automobile with defendant Walsh driving. They drove toward Marseilles, Illinois, to a residence, where defendant Walsh talked to his job superintendent about the location of the work which defendant Walsh was to do the next day. After a brief time was spent at the superintendent’s residence, the parties then drove into Marseilles and stopped at a tavern. Shortly thereafter they drove to Seneca, Illinois, to look at the truck. Walsh discussed the merits of the truck with the others and decided against purchasing it. The group then left Seneca, traveling in a westerly direction along Route 6 toward Ottawa. The top of the convertible was down as the party was driving along Route 6. Defendant Walsh was driving, Williamson was in the right front seat, Carlson was in the right rear seat, and the plaintiff was in the left rear seat. It was during this portion of the journey that the accident occurred. The day was bright, warm, and clear, and the pavement was dry.

There was some confusion as to the exact location of the accident. Williamson and defendant Walsh placed the accident at some distance west of the Material Service Corporation underpass. Defendant Lewis and the other occupant of his car, who subsequently became his wife, stated that the accident occurred at a point east of the underpass. As a result of the accident plaintiffs right hand was severely mangled and a portion of the hand was later amputated.

Prior to the accident there were some cucumbers in defendant Walsh’s automobile which had been there since the day before the accident. Some members of the group were engaging in a bit of horseplay or amusement with the cucumbers. At least one cucumber was thrown at a road sign by Fred Carlson and another was thrown out of the automobile by plaintiff. According to the testimony of plaintiff, at a point when defendant Walsh was pulling out to pass an automobile in front of him, plaintiff stood up and reached over the “front seat” for a cucumber. He recalls that immediately thereafter, he lost his balance, threw up his arms and fell over to his left. He remembers nothing further about the occurrence. Williamson stated that immediately prior to the occurrence, defendant Walsh had pulled out to pass the automobile ahead of them while they were in a “no passing zone”. There was an oncoming car (that of defendant Lewis) and defendant Walsh, accordingly, started to move back into his own lane. Williamson looked into the back seat and saw that plaintiff had severely injured his right hand. Defendant Walsh states that at no time after he had traversed the underpass did he cross the center line in an attempt to pass another vehicle. He did not see plaintiff sustain his injury, but was told about it by Carlson. The Walsh car was traveling at about 50 to 60 miles per hour immediately prior to the accident.

Defendant Lewis testified that he was driving his car easterly along Route 6 and that he saw the Walsh car approaching him. He saw someone in the back seat stand up and “dive” toward his left and that a few seconds later as he passed the Walsh car he heard a “thump” caused by plaintiffs hand striking the left headlight of the Lewis car. He after-wards observed that his left headlight was smashed. Lewis testified that he was traveling within the speed limit at about 50 to 55 miles per hour and that at no time was his car in the westbound lane. None of the other witnesses who testified indicated in any manner that the Lewis vehicle was at any time outside of the eastbound lane of traffic. The testimony which was presented in the case corroborated that of defendant Lewis in this respect. Defendant Lewis also stated that he did not see the Walsh car attempting to pass any of the vehicles in front of him. Fred Carlson did not testify at the trial.

It is first contended by plaintiff that the trial court erred in directing a verdict for defendant Lewis. Plaintiff bases this argument on the assertion that although plaintiff and the witness Williamson testified that defendant Walsh crossed the center fine, defendant Walsh said that he did not, and it follows (according to plaintiff) that the jury could have disbelieved his testimony and that of Williamson and believed that of defendant Walsh. Thus, it is contended by plaintiff that there was circumstantial evidence that the accident could not have occurred unless the Lewis vehicle crossed the center line. The evidence in the record, however, does not support plaintiff’s argument in this respect. The evidence presented at the trial when taken in its aspect most favorable to plaintiff, so overwhelmingly favors defendant Lewis that a verdict against him on the record could never stand. (Pedrick v. Peoria & Eastern R.R. Co., 37 Ill.2d 494, 229 N.E.2d 504.) It is obvious that the accident could have occurred even if neither of the cars had crossed the center line. On the basis of the evidence presented in the case it could well have been concluded that plaintiff’s aim and upper body could have extended laterally from defendant Walsh’s car and over the center line of file highway so as to allow plaintiffs hand to be struck by defendant Lewis’s left headlight while both automobiles were entirely within their proper lanes of travel. Significantly, an evaluation of all of plaintiffs testimony, together with an appraisal thereof in the light of the testimony of the other witnesses called during plaintiff’s case (see Carter v. Winter, 32 Ill.2d 275, 204 N.E.2d 755, 759), manifest a signal failure to controvert the clear and unequivocal testimony of defendant Lewis given when called as a witness under section 60 of fhe Civil Practice Act, when he asserted that his automobile was fully in the eastbound lane at all relevant times. Since this was corroborated by everyone who testified as to the position of Lewis’s car, the trial court was bound under the Pedrick rule to direct a verdict in favor of defendant Lewis under the facts as shown by the record.

Plaintiff next contends that his motions for leave to file successive amended complaints were erroneously denied by the trial court. From the record we note that on August 13, 1971, plaintiff filed a motion for leave to file an amended complaint, stating that newly discovered evidence had disclosed that plaintiff was not a guest passenger in defendant Walsh’s vehicle, as originally alleged, but rather was merely a passenger therein, the automobile trip in question being “primarily” for the purpose of defendant Walsh. (See Sinclair v. Thomas, 90 Ill.App.2d 114, 119-120, 234 N.E.2d 368, 371.) Plaintiff sought to file an amended complaint, therefore, averring that he was a “passenger” in defendant Walsh’s car and charging defendant Walsh with ordinary negligence instead of willful and wanton misconduct. Willful and wanton misconduct is required to be shown if plaintiff had been only a guest in the Walsh vehicle. (Ill. Rev. Stat. 1969, ch. 95½, sec. 9—201.) A proposed two-count amended complaint was attached to the motion and following the hearing on the motion, the court entered an order denying such motion. Plaintiff thereupon orally moved for leave to file a proposed two-count second amended complaint. This proposed second amended complaint sought not only to charge defendant Walsh with liability for ordinary negligence as did the proposed first amended complaint, but, also, as part of such charge, set forth a “comparative negligence” theory of recovery as against both defendants. The trial court denied leave to file the proposed second amended complaint.

By electing to ask leave to file the second amended complaint, upon ■ the trial court’s denial of leave to file the first amended complaint, plaintiff abandoned the first amended complaint and thus waived any contentions of error concerning the trial court’s ruling thereon. (Villareal v. Trevino, 30 Ill.App.2d 77, 173 N.E.2d 582; Trembois v. Standard Ry. Equipment Mfg. Co., 337 Ill.App. 35, 84 N.E.2d 862.) The only question, therefore, remaining before us concerning the pleadings is whether the trial court’s order denying plaintiff’s oral motion for leave to file the second amended complaint was proper. We have noted that such pleadings sought to aver causes of action under a comparative negligence theory. If that theory is not viable in Illinois, the trial court’s order on the pleadings must be sustained, in view of the nature of the pleadings presented.

On the issue as to whether Illinois should judicially adopt a comparative negligence doctrine in cases such as we are confronted with in the instant case, plaintiff has set forth a cogent and well-reasoned argument in his brief. The particular issues involved, however, have been fully considered by our Supreme Court as recently as 1968 in the well-known case of Maki v. Frelk, 40 Ill.2d 193, 239 N.E.2d 445. In that case, the Supreme Court, as the highest tribunal in this State, specifically held that proper respect for the principle of stare decisis compelled a ruling that if comparative negligence concepts were to become the law of Illinois and the long settled rule that plaintiff’s contributory negligence absolutely bars him from recovery in a common law negligence action is to be abrogated, that change in the law must be accomplished by the legislature.

Irrespective of what our personal analysis or predilections may be with respect to the desirability of the comparative negligence doctrine in the State of Illinois, we feel that, primarily by reason of the fact that the Maki v. Frelk case was decided so recently, we are required to follow that determination. If a change is to be made, judicially, in such doctrine, that change should be initiated by the Supreme Court in view of its recent pronouncement in Maki v. Frelk. The issue may be presented to the Supreme Court on appeal from this court if appellant is so inclined. As a consequence of this situation, and in view of Maki v. Frelk, 40 Ill.2d 193, 239 N.E.2d 445, we conclude that the proposed second amended complaint which seeks recovery under comparative negligence theory does not now state a cause of action under the rules of Illinois negligence law. We, therefore, conclude that we have no alternative but to uphold the order of the trial court which denied plaintiff’s leave to file such second amended complaint. The resolution of questions relating to the proposed first and second amended complaints necessarily resolves all questions dealing with the proposed instructions thereon and accordingly we need not discuss plaintiff’s further contention of error relating to instructions.

A final question with which we must deal involves defendant Lewis’ cross-appeal from the trial court order denying his motion to tax his costs against plaintiff for the “expenses” of defendant Lewis, excluding attorney’s fees, incurred in defense of the action. These expenses are stated to be $352 and represent wages lost by defendant Lewis in presenting himself in court and at the taking of a deposition. The Lewis motion was filed under the provisions of section 41 of the Civil Practice Act. (Ill. Rev. Stat. 1971, ch. 110, sec. 41.) This section purports to penalize litigants who plead false or frivolous matters or bring lawsuits without any basis in law.

Although we recognize that defendant Lewis was properly awarded a directed verdict at the close of plaintiff’s case, that circumstance alone does not establish that plaintiff’s action against defendant Lewis was baseless. Experience teaches us that it is extremely difficult to predict what witnesses will say when called upon to testify even if their depositions have been taken prior to trial. The question of interpretation of testimony is also an uncertain factor which cannot be determined arbitrarily. If we were to overrule the trial court’s action on the Lewis motion for expenses in this case, it would substantially establish a precedent that litigants in whose favor directed verdicts are properly entered at the close of the opponent’s case may properly charge such opponent with their litigation expenses. This would be an unsound rule and is not a proper interpretation of the statute (sec. 41) referred to. We, also, see no basis for applying it in the instant case. We, therefore, find no error in the trial court’s ruling on the motion for assessment of expenses.

For the reasons stated, the judgment of the Circuit Court of La Salle County is hereby affirmed.

Judgment affirmed.

STOUDER and SCOTT, JJ., concur.


author: Mr. JUSTICE DIXON Mr. PRESIDING JUSTICE ALLOY

text:
    Phillip E. Smith, Petitioner-Appellee, v. Gen Co. Corporation, d/b/a Deck Oil Company, et al., Respondents-Appellants.
    (No. 72-318;
    Third District
    April 30, 1973.

      ALLOY, P. J., specially concurring.
    Henry Noetzel, of Peoria, for appellants.
    Edward Keefe, of Rock Island, for appellee.
   Mr. JUSTICE DIXON

delivered the opinion of the court:

On May 17, 1972 petitioner-employee Phillip E. Smith applied to the Circuit Court of Henry County under Ill. Rev. Stat. 1971, ch. 48, sec. 138.19(g) for judgment, against the employer-respondent, Gen Co. Corporation, and its insurer, The North River Insurance Company, on a final award of the Industrial Commission entered March 28, 1972 to enforce collection of amounts that had accrued and were due when no payment or tender was made by respondents after many requests. After hearing, the Circuit Court included in its judgment for petitioner, not only amounts that had accrued under the award to the date of judgment but also the additional sum of $3396.45 for the employee’s costs and attorney fees both in proceedings before the Industrial Commission and in the Circuit Court. Appellants complain only of that portion of the judgment which allowed attorney’s fees and costs. Since no review of an order of the Industrial Commission is involved, appellants’ direct appeal to the Supreme Court was transferred to this Court.

The appeal involves construction of section 19(g) of the Workmen’s Compensation Act (Ill. Rev. Stat. 1971, ch. 48, sec. 138.19(g)), applicable portions of which read:

“* * * either party may present a certified copy of the # # decision of the Commission, when the same has become final, * * * providing for the payment of compensation * * * to the Circuit Court * * Whereupon said court shall render a judgment * *. In case where the employer refuses to pay compensation according to such final award * * * the court shall * * * tax as costs * * # the reasonable costs and attorney fees in the arbitration proceedings and in the court entering the judgment # * *.
Judgment shall not be entered until 15 days’ notice * * * shall be served * *

“The purpose of section 19(g) is to permit speedy judgment in cases where there has been a refusal to pay the award and a need to reduce the award to judgment to compel its payment. A further purpose is to compensate a claimant who is compelled to incur additional expense by reason of the refusal to pay an award by allowing him court costs and attorney fees.” Franklin v. Wellco Co., 5 Ill.App.3d 731.

The employee sustained brain and skull injuries on Oct. 24, 1967 while employed at respondents gasoline station at Geneseo in Henry County. Eventually in its Decision on Review entered March 28, 1972 the Industrial Commission held tire employee to be entitled to an award for permanent total disability in the amount of $56 per week for 267 weeks plus 1 week at $48 ($15,000 total) and thereafter a lifetime pension of $150 per month. The March 28 award became final April 18, 1972. The amount owed under the award at the time of its entry was $7989.38. Interest began accruing on this amount from and after March 28, 1972. (Proctor Community Hospital v. Industrial Com., 50 Ill.2d 7.) Moreover, during every week following March 28, 1972 an additional $56 payment became due until the full $15,000 was paid.

After the award became final the employee’s attorney made repeated requests for payment (4 in all) and nothing was forthcoming, not even the $56 weekly payments. Finally, application was made to the Circuit Court for judgment on the award under sec. 138.19(g). The filing fee was $31.

The next day a representative of the insurer offered a draft in the amount of $8288 with a condition that endorsement constituted a release in full settlement. There was then due $8447 and the offer was refused.

The following week the insurer offered drafts with the condition that endorsement was a full release and which did not contain accrued interest. The offer was refused.

Nothing further occurred until the hearing on the application for judgment 9 days later. During its case the insurer offered its earlier drafts and an additional draft for interest accrued only to May 23 ($73.50) when $85.36 interest was in fact due. No attempt to tender court costs was made and an additional weekly payment of $56 though due was not tendered.

After the hearing was concluded the trial court entered judgment for the full amount due ($8578.74) and taxed as costs $3396.45 itemized as follows:

It is apparent from the record that die insurer herein denied owing and never intended to pay interest due on the award and that for its convenience it intended to pay the weekly awards monthly rather than weekly. Even in its reply brief it argues that, “interest never became vested until judgment”. No interest was ever offered until the hearing and then less than the amount due. The cost of the filing fee was never tendered at all.

As a general rule, a tender must include everytiiing to which the creditor is entitled, and a tender of any less sum is nugatory and ineffective as a tender. (Colby v. Reed, 99 U.S. 560, 25 L.Ed. 484.) It must include interest due and costs then due as accrued. (Annot. 5 A.L.R. 1228. 86 C.J.S. Tender, sec. 7—8.) It is the duty of the debtor to make sure that his tender is sufficient in amount. An offer of an amount less than due where coupled with conditions which renders its acceptance by the creditor an admission that no greater amount is due is not a tender at all. Ortman v. Kane, 389 Ill. 613; 34 I.L.P. Tender; 52 Am.Jur. Tender, sec. 25.

The employee was entitled to interest on the award and the insurer knew or should have known it. (McMurray v. Peabody Coal Co., 281 Ill. 218, 226; Chicago Traction Co. v. Industrial Board, 282 Ill. 230, 235.) As for the $56 weekly payments the employee was entitled to be paid weekly and not monthly. Sec. 138.8(b)5 provides: “All payments of compensation shall be made not later than 2 weeks after the interval for which compensation is payable.” The import is that an employee is to be paid promptly.

Insurer argues that since sec. 19(k) of the Act provides an administrative remedy that that remedy must be exhausted before application to the Circuit Court.

The insurer has cited Board of Education v. Industrial Com., 39 Ill.2d 167. In that case the proceeding was brought under sec. 19 (k) of the Act and has no application here except as was observed by the court on page 171. “We think, however, that employers in compensation cases would be well advised to make payments of awards as soon as practicable to avoid this question and the possible application of sanctions.” The case was distinguished by the Supreme Court in Proctor on page 9. Sweitzer v. Industrial Com., 394 Ill. 141 also cited by insurer certainly has no application here. The court there held that a review of an arbitrator’s decision by the commission a precedent to a review by the Circuit Court. Sanchez v. Industrial Com., 53 Ill.2d 514 was also a proceeding under sec. 19(k) of the Act and would have no application here. In that case there were negotiations between the attorneys in attempt to arrive at a lump sum settlement. The court said, “Settlement negotiations conducted in good faith should not be penalized”. There were no settlement negotiations here.

There is no precedent for insurer’s position that relief under sec. 138.19(g) cannot be afforded without first applying to the Commission under sec. 138.19(k) and both Voorhees and Proctor approve the contrary procedure. In addition to the obvious differences in the sections (k) speaks only of penalties for vexatious delay and failure to pay “compensation” and never speaks of penalties for failure or refusal to pay an “award”, where (g) is addressed to penalties for refusal to pay “final awards”, and is a method of enforcement of final awards. Going back to the Commission for a 50% penalty under (k) does not provide a method of enforcement of payment; respondent could still fail or refuse to pay the larger amount.

Under the Illinois Act the Commission has no power to enforce payment of its own award and the only way a final award can be enforced is by a proceeding in Circuit Court. In short, there is no administrative remedy and therefore none to be exhausted.

In interpreting sec. 138.19(g) the Supreme Court in Voorhees v. Industrial Com., 31 Ill.2d 330 established two principles:

1. If anything is properly due the employee under the final award of the Commission at the time application for judgment is made then the Circuit Court should enter judgment as provided in 19(g).

2. Full payment or tender of full payment is a complete defense to the employee’s application for judgment.

In the case at bar it is undisputed that the insurer made no payment or tender of any kind whatever, in any amount, prior to the filing of the application for judgment on May 17, 1972. The delay in view of so many requests could hardly have been inadvertent. It was not only necessary for the employee to incur the expense of filing in the Circuit Court he had to proceed to a full hearing to judgment.

Respondent’s conduct demonstrated its refusal to pay the award according to its terms and the Circuit Court correctly so found.

Respondents also assert in this appeal a number of oflier matters not raised in the trial Court and which cannot be raised for the first time in this court. Richards v. Industrial Com., 44 Ill.2d 150.

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

Affirmed.

STOUDER, J., concurs.

Mr. PRESIDING JUSTICE ALLOY

specially concurring:

My reluctant concurrence in the above case stems from the fact that, as stated in the case of Franklin v. Wellco Co., 5 Ill.App.3d 731, 283 N.E.2d 913, “The statute states that reasonable attorney’s fees shall be taxed when the employer refuses to pay the award.” I recognize that a deliberate delay may amount to refusal and that this becomes essentially a question of fact for determination by the circuit court as a trier of fact. I believe it is necessary, however, to emphasize that not every delay in and of itself could be construed to amount to a refusal to pay. A good faith delay would certainly not fall into this category. This cause is determined on the basis that the circuit court found that the delay was tantamount to a refusal. It does not mean, and should not mean, that any delay should be a basis for a finding that penalties invoked for vexatious delays and refusals to pay are available in all cases where payment is not made precisely in accordance with statutory provisions.


author: Mr. JUSTICE DIXON Mr. JUSTICE STOUDER

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Ralph D. Clifton, Defendant-Appellant.
    (No. 72-28;
    Third District
    April 17, 1973.

      Rehearing denied May 24,1973.

    STOUDER, J., dissenting.
    Stuart R. Lefstein, of Rock Island, for appellant.

      F. Stewart Merdian, Assistant State’s Attorney, of Rock Island, for the People.
   Mr. JUSTICE DIXON

delivered the opinion of the court:

The defendant Ralph D. Clifton was issued a Traffic Ticket and Complaint which charged him with “Driving While Under Influence of Liquor” in violation of Sec. 11 — 501 of the Illinois Vehicle Code. Defendant waived jury, was found guilty and was fined $100 plus costs by the Circuit Court of Rock Island County.

Defendant first contends that the complaint fails to charge an offense in that the statutory word “intoxicating” was omitted. This precise point arose in People v. Haney, 95 Ill.App.2d 1, where after a thorough discussion the court held that when modified by the phrase, “under the influence of”, the word “liquor” must be synonymous with “intoxicating liquor” as that term is used in the statute, and that the complaint sufficiently charged defendant with the conduct prescribed by the statute. We agree.

At the trial held Oct. 29, 1971 a State Trooper testified that on the evening of Aug. 8, 1971 defendant was initially observed driving a motor vehicle which was stopped in front of a tavern in the middle of a four lane roadway, blocking two lanes of traffic. Defendant then attempted to drive his vehicle over the center median. After straddling the median the defendant proceeded down the roadway, weaving across the center lane, causing approaching traffic to take evasive action. After stopping defendant the officer noticed defendant’s physical appearance and behavior. There was a strong smell of alcohol, mumbled speech and poor coordination including a stumbling, staggering walk which required the assistance of the officer when defendant was placed in the squad car.

Another state policeman^ CpI. W. G. Waterhouse, testified that he possessed a valid, certified permit authorizing him to administer breathalyzer tests, that he had received such permit after successfully completing a 40 hour course in the instruction of the use of the breathalyzer and that the course was conducted under the auspices of the State Department of Public Health in cooperation with the State Highway Police. The officer further testified that his permit was valid on Aug. 8, 1971 and that he administered a breathalyzer test to the defendant after the defendant had given his consent to such a test. He testified as to each step in the breathalyzer operational check list which was followed before the test was given. The result of the test indicated .21 percent blood alcohol. Defense counsel objected to the admission into evidence of the test on the ground that there was no foundation proof that the test had been performed in accordance with uniform standards of the Department of Public Health, as required by the statute. On cross-examination Officer Waterhouse testified that he had heard of the “uniform standards” but did not know what they were.

The defendant testified that he had received a head injury and was dizzy and these facts accounted for the erratic driving.

Section 11 — 501(d) of the Illinois Vehicle Code then provided:

“(d) Chemical analysis of the persons blood or breath to be considered valid under this Section must be performed according to uniform standards adopted by the State Department of Public Health, in cooperation with the Superintendent of State Police, and by an individual possessing a valid permit issued by that Department for this purpose # s

Defendant’s argument here is that since there was no testimony concerning the actual “uniform standards” how could the trial court be sure that the test was performed in accordance with them.

Tire Department of Public Health in cooperation with the Superintendent of State Highway Police did in fact adopt standards effective on and after Sept. 1, 1970. The standards were not in possession of either attorney at the time of trial and no attempt was made to ask that judicial notice be taken. A party desiring to have a fact judicially noticed should bring the matter to the attention of the court, on the record. If he does not, the court of review will not ordinarily judicially notice such fact. People ex rel. McCallister v. Keokuk & Hamilton Bridge Co., 287 Ill. 246.

Evidence of the breathalyzer test was therefore improperly admitted. However, this case was tried before the court without a jury and it is presumed that the judge considered only competent evidence. (People v. Frenchwood, 28 Ill.2d 139, 142.) Defendant concedes, “that sufficient testimony was presented by the State, in addition to the breathalyzer test, from which defendant acknowledges a trier of fact could have found the defendant guilty even if the breathalyzer report had been excluded”. We are of the opinion that the admission in evidence of the breathalyzer although erroneous, was not of such a prejudicial nature as to require reversal of the judgment of conviction.

The judgment of the Circuit Court of Rock Island County is therefore affirmed.

Judgment affirmed.

ALLOY, P. J., concurs.

Mr. JUSTICE STOUDER

dissenting:

I agree with the majority of the court that the testimony regarding the breathalyzer test was incompetent and erroneously admitted by the trial court. However, the logic of the majority’s own reasoning impels me to believe that because of such error this case should be remanded for a new trial.

In support of its reasoning that the error could not be deemed prejudicial, the majority assumes that the incompetent evidence was ignored by the trial court by applying the rule that in a trial before the court without a jury, it is presumed that the trial court has considered only competent evidence. The application of this rule, rather than supporting tire propriety of the judgment, has the opposite effect. If the trial court is presumed to have considered only competent evidence, then in this case the court would have to be presumed to have considered the evidence relating to the breathalyzer test, because pursuant to specific objection to such testimony the court found such testimony to be competent. Rather than overruling such objection the majority has found, and I agree, that such objection should have been sustained. If tire rule is applied as announced in the majority opinion we would reach the odd conclusion that the trial court is presumed to have disregarded evidence which it specifically believed to be competent, a conclusion with which I disagree. People v. Frenchwood, 28 Ill.2d 139, 190 N.E.2d 767, as well as other cases such as People v. Cox, 22 Ill.2d 534, 177 N.E.2d 211, People v. Richardson, 17 Ill.2d 253, 161 N.E.2d 268, People v. Grabowski, 12 Ill.2d 462, 147 N.E.2d 49, and People v. Knapp, 15 Ill.2d 450, 155 N.E.2d 565, where this rule is announced, are cases where no objection was made during the trial to evidence later claimed to be incompetent on appeal. I am unaware of any cases in which the trial court has been presumed to have ignored evidence which it specifically declared to be competent.

Although there was other evidence from which it might be inferred that defendant was driving while under the influence of intoxicating liquor, it seems to me that in view of defendant’s claim that his erratic driving was the result of a head injury, the testimony regarding the breathalyzer test was not merely cumulative but nearly conclusive on the issue of intoxication. The nature and purpose of scientific evidence, as a breathalyzer test, is such that in many types of cases, such as this one, such evidence has an overwhelming effect and is deservedly considered probative evidence of a high order. Were incompetent evidence of a breathalyzer test presented in a trial before a jury, there is little doubt that such evidence would result in reversible error, and I see no reason for believing other than that the evidence had a similar prejudicial effect in this case. Accordingly, I believe the defendant should be granted a new trial.


author: Mr. JUSTICE SMITH

text:
    Elke Radivojevic, Plaintiff-Appellee, v. Bratislav Radivojevic, Defendant-Appellant.
    (No. 11794;
    Fourth District
    April 18, 1973.

      Herbert Semmel, of Champaign, (Carter H. Klein and Edward M. Rothschild, Senior Law Students, of counsel,) for appellant.
    John J. Lawless, of Champaign, (Stan Eisenhammer, of counsel,) for appellee.
   Mr. JUSTICE SMITH

delivered the opinion of the court:

This is an appeal by the defendant father from an order of the circuit court of Champaign County refusing to change the custody order from the mother to the father when the mother returned to West Germany to live permanently after the divorce decree. The child was born in the United States and was four years and two months old at the time of the order we consider. The basic issue is whether the best interests of this child require her ex-patriation with her mother in Germany for a period of 11 months and her return to the United States for one month in the summer, or whether her custody should be changed to the father so that she may be reared here in the country of her birth. In its decree the trial court found that the mother had sufficient financial resources and is otherwise able to care for said child and that each of the parties is a fit person to have custody; that it is in the best interests of the child that she remain in the custody of her mother in West Germany and authorized the mother to remove said child to that country; that the father be permitted visitation with the child for a period of one month each year between the months of June and September, the precise time to be agreed upon; that the transportation expense of the child by air would be supplied out of child support payments; that those payments should be paid by the father to the clerk of the circuit court and there sequestered until the further order of the court; that upon application the court would order a reasonable amount to be expended on behalf of the child for transportation to the United States and return, and the balance would be sent annually to the mother.

The parties were divorced in February, 1969. The plaintiff was a native of Germany, defendant was a native of Yugoslavia, and the minor child, Suzanne, was near two years of age. Custody was awarded to the mother and provided that neither party should remove tire child from the State of Illinois. In October, the mother petitioned the court for leave to take the child to Germany because of the illness of her mother, and an order was entered granting such permission and directing the return of the child by February 1, 1970. The mother posted a bond to ensure performance. In May of 1970, a supplemental order was entered indicating that the child had not been returned to the court as directed, that the mother be ordered to deliver the child in open court within 60 days, and upon failure to do so appointed the father as temporary custodian for the purpose of returning said child to the court. The father was required to post a $1000 bond with the clerk of the court. The mother was found to be in contempt of court. The father went to Germany and required the aid of the German courts to obtain visitation, returned the child to the United States and petitioned the court to award custody to the father. The order denying a change of custody and modifying the divorce decree as hereinabove indicated was entered in October, 1971 and this appeal followed.

The father is now a naturalized citizen and a doctor of veterinary medicine. The mother is a medical technician. The court found both to be fit and proper persons to have the care, custody and education of said child. The record indicates that pending the divorce decree the father took the child and secreted her from the mother and a court order was required to get her back. The record also shows that there was or may have been some disturbance when the father sought to visit the child in Germany, and that the German court enforced the Illinois decree, but declined jurisdiction to alter custody. This record supports the proposition that both parents have apparently used the child and its custody as a pawn — an attitude that cannot be condoned nor should it be rewarded. Both parties indicated they expected to marry within a few months after the hearing. The mother made it clear that she intended to remain in Germany. It is abundantly clear from this record that any order entered by the circuit court would deprive one parent of frequent visitation and that it is not unreasonable for either one or the other to have the custody during the school year and the other having visitation rights in his or her own home for one month or upwards during the summer. There is simply no way that both parents can have like or equal rights of visitation at present.

The trial court’s determination was that it is for the best interests of this child that she remain with the mother subject to visitation by the father in his home in the United States. The standard applied by the trial court is proper. Illinois has long been an advocate of the “tender years” doctrine. (Miner v. Miner, 11 Ill. 43; Draper v. Draper, 68 Ill. 17; Nye v. Nye, 411 Ill. 408, 105 N.E.2d 300; Carlson v. Carlson, 80 Ill.App.2d 251, 225 N.E.2d 130; People ex rel. Bukovich v. Bukovich, 39 Ill.2d 76, 233 N.E.2d 382.) The last cited case does not preclude the propriety of awarding custody to a father under some circumstances and reiterates that a custody decree is always regarded as temporary rather than permanent. Those circumstances are not present here.

The father here urges that it is the natural right of the minor child and for its best interests that she be educated in the United States. In Dokos v. Dokos, 88 Ill.App.2d 330, 232 N.E.2d 508, this court commented upon this position alone as a basis for change of custody and what is said there need not be repeated here. The mother was found in contempt of court for failure to return her child to the Champaign County court. This finding was in absentia and it standing alone is not sufficient to warrant a change of custody. Jingling v. Trtanj, 99 Ill.App.2d 64, 241 N.E.2d 39.

It is idle for this court to presently compare the educational systems of this country and of West Germany in history, art, science, mathematics and other fields. Both countries have produced men and women of world-wide renown and talent over the years. Superiority of one over the other daily or annually is nebulous. It is idle to suggest that this child raised in West Germany will be ill-prepared to return to her native country and meet its "challenges. Those born in other countries who have come to our shores and have been leaders in many fields in America repudiate the soundness of such a doctrine. We therefore conclude that the trial court did not abuse its discretion in the order entered in this cause and that it has taken the steps deemed most appropriate to protect the sanctity of its decree.

The father likewise suggests that this court should direct that the German court adopt the provisions of the Illinois decree. We have already observed that the German court did enforce the provisions of the Illinois decree. We had occasion to observe in Hager v. Hager, 1 Ill.App.3d 1047, 274 N.E.2d 157, that in the absence of a treaty defining the effect to be given a decree rendered by another country its recognition is founded largely upon a somewhat nebulous doctrine of comity. As this court did in Hager, so the German court did in this case —it took the position that it was without power to alter the provisions of the Illinois decree. It did enforce it. A proper respect by each party for the court’s decree and a proper concern for the child should end litigation.

Under the circumstances here stated, this court cannot say that the trial court abused its discretion or that the decree is contrary to the manifest weight of the evidence. (Spencer v. Spencer, 132 Ill.App.2d 740, 270 N.E.2d 72.) Neither can this court say as a matter of law that the education of Suzanne in the United States is per se in her best interests nor outweighs the “tender years” doctrine which for more than a century has been a part of our jurisprudence.

Accordingly, the judgment of the trial court is affirmed.

Judgment affirmed.

CRAVEN, P. J., and TRAPP, J., concur.


text:
    Logan County Bank, Plaintiff-Appellee, v. James H. Taylor, Defendant-Appellant.
    (No. 11940;
    Fourth District
    April 26, 1973.
    John M. Ritchie, of Pekin, for appellant.
    Harris & Harris, of Lincoln, (Homer B. Harris, Jr., of counsel,) for appellee.
   Mr. JUSTICE SMITH

delivered the opinion of the court:

While a minor, defendant executed a note. While still a minor, he claims he renounced or disaffirmed it. He used the proceeds of the note for the purchase of an automobile. He made two payments, was then drafted, and left the car with a friend “when I went into the service and it set there until I contacted the bank to pick it up”. He was twenty when all this occurred. The bank did pick it up and sold it for salvage — $30. The note when executed in December, 1964, was for $377.40. Subsequently, in 1969, the bank called defendant in and demanded payment. Defendant advised them that he was a minor at the time the loan was executed, but was told in return that such fact was of no consequence, and he thereupon agreed to make payments of $10 or $15 a month— which he never did. In February, 1972, the bank confessed judgment against him. Defendant sought to have such set aside arguing that he had timely disaffirmed the note. The court, however, confirmed the judgment and he appeals.

We are not presented with the question more often present than not, as to whether the disaffirmance, if such was the case, was timely, that is, made within a reasonable time after reaching majority. Here, the disaffirmance, if there was one, was prior to majority and therefore about as timely as it could be. A minor can in most instances disaffirm a contract during his minority. But the question remains, was the act of calling the bank and telling them to “pick it up” a renunciation or disaffirmance. For defendant here to avoid the note, the renunciation must be unequivocal. In 27 I.L.P. 39, Sec. 43, it is said:

“As a general rule, a minors contract may be avoided by any act showing unequivocally a renunciation of, or a disposition not to abide or be bound by the contract made during minority."

The bank argues that defendant’s direction to pick the car up was not an act of disaffirmance and points to the fact that defendant did not demand the return of two payments previously made. It argues further, that disaffirmance can only come after majority — thus whatever the implications of picking up the car might be, it has no bearing in our context.

We think otherwise. As we have seen, a minor can disaffirm his contract during minority, and the question here is whether he did so in having the car picked up by the bank. Disaffirmance or renunciation is a question of intent and it seems to us that when he told the bank to pick up the car it was his intent to disaffirm the note. There are no circumstances present that militate against such conclusion by implication, such as making another payment, or expressly, by advising the bank at the time that he still intended to pay off the note. In our opinion, his contacting the bank and telling them to pick up the car was an unequivocal renunciation and disaffirmance. True, he could have sent them a letter, registered mail, telling them just that, and maybe such could be characterized as “more unequivocal”, but there is no requirement for the nth degree of unequivocalness. As defendant points out, to impose specificity and formality on the act of disaffirmance is to disregard the basis for the policy of the law that protects minors from their improvident actions and which accords to them the right to disaffirm.

The bank points to the subsequent conversations with it in 1959 and characterizes such as “reaffirmance”. But you can’t reaffirm that which has been disaffirmed. In our opinion, there was nothing to reaffirm — defendant’s disaffirmance in legal effect obliterated the note. Reaffirmance cannot be premised on an effort to reverse that which has been legally avoided. (Fuller v. Pool, 258 Ill.App. 513.) Accordingly, we hold that defendant disaffirmed the contract during his minority. The judgment appealed from is reversed and the cause is remanded with directions to vacate the judgment and enter judgment for defendant.

Reversed and remanded with directions.

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


author: Mr. JUSTICE ABRAHAMSON Mr. JUSTICE THOMAS J. MORAN

text:
    Nylint Corporation, Plaintiff-Appellant, v. Julian Ingram et al., Defendants-Appellees.
    (No. 72-13;
    Second District
    April 27, 1973.

      Rehearing denied June 5,1973.

    T. MORAN, J., specially concurring.
    Harold L. Tucker, of Miller, Hickey & Close, of Rockford, for appellant.
    Reno, Zahm, Folgate & Skolrood, of Rockford, for appellees.
   Mr. JUSTICE ABRAHAMSON

delivered the opinion of the court:

The question presented in this case is whether a lessee of a portion of a building can recover for damages by storm water to its stored chattels under an implied covenant that lessor will keep outer walls in repair to prevent such damages, where the written lease had an express provision that “lessor shall not carry insurance of any kind” on lessee’s property for damage by water (or by any other method), the “loss being sustained by” lessee.

The trial court concluded that the express provision of the lease absolved the lessor from any liability to the lessee (plaintiff) for damages to its personal property and entered an order sustaining defendant’s motion to dismiss the second amended complaint. The record makes it clear that the parties and the trial court intended that the order be considered as a final judgment and no procedural question is raised here. In view of Section 4 of the Civil Practice Act (Ill. Rev. Stat. 1969, ch. 110, par. 4) we are so treating it.

The cases cited by plaintiff are inapposite. None of them involved an express provision relieving the lessor from liability from damage by water. Where a lease contains an express provision no contrary covenant may be implied. In Rubens v. Hill, 213 Ill. 523, 539, the Illinois Supreme Court said: “Express covenants abrogate the operation of implied covenants in accordance with the rule of interpretation, that the expression of one thing in a contract is the exclusion of another. * * * Where the minds of the parties have met and made an express agreement, the law does not enlarge and qualify this express agreement by implication.”

Therefore, the judgment is affirmed.

Judgment affirmed.

GUILD, P. J., concurs.

Mr. JUSTICE THOMAS J. MORAN

specially concurring:

Contrary to the opinion of the majority, I believe that plaintiffs only issue before us is one of procedure.

In light of the Rial court’s finding that the second amended complaint stated a cause of action, plaintiff argues that it was error to allow defendant’s motion to dismiss, contending that the dismissal summarily disposed of its case on the merits, a disposition which could not properly be reached by a motion to dismiss.

Plaintiff’s position would have merit if the court relied only upon Section 45 of the Civil Practice Act. (Ill. Rev. Stat. 1969, ch. 110, sec. 45.) The cause of action herein, however, is founded upon a lease attached as an exhibit of the pleadings. Paragraph nine of the lease expressly defeats the allegation set forth in the second amended complaint and subjects the cause of action to dismissal under Section 48 (1) (i) of the Civil Practice Act. Ill. Rev. Stat. 1969, ch. 110, sec. 48(1) (i).

It is on this basis that I join in the affirmance of the judgment appealed.