author: GOLDENHERSH, J.

text:
    Thomas James Dallas, by Illinois State Trust Company, a Corporation, His Guardian, Plaintiff-Appellee, v. Granite City Steel Company, a Corporation, Defendant-Appellant.
    Gen. No. 65-22.
    Fifth District.
    November 8, 1965.
    Rehearing denied December 7,1965.

      Wagner, Conner, Ferguson, Bertrand & Baker (Francis D. Conner and John M. Ferguson, of counsel), for appellant.
    Kassly, Weihl, Carr & Bone, of East St. Louis (Rex Carr and John B. Raffaelle, of counsel), for appellee.
   GOLDENHERSH, J.

Defendant, Granite City Steel Company, appeals from the judgment of the Circuit Court of Madison County; entered upon a jury verdict in the amount of $115,000.

Plaintiff’s amended complaint alleges that on January 13, 1961, defendant was the owner of certain real estate known as 1816 Omaha Avenue, in Granite City, that defendant permitted the unoccupied house there situated to remain in a state of disrepair, permitted trash, rubbish and miscellaneous junk to remain on the premises, that plaintiff, then 4 years of age, was playing in a concrete block enclosure on said premises, which enclosure contained trash, rubbish and other junk, that defendant was aware that children residing in the immediate area were attracted by the abandoned house and premises and often played there, that as a direct and proximate result of defendant’s negligence plaintiff was attracted to the premises and while playing there was struck in the face by trash, and suffered serious and permanent injuries.

The evidence shows that defendant operates a large steel plant in Granite City, part of which lies adjacent to Omaha Avenue. It had received a number of complaints from residents of the neighborhood because its operations caused smoke and vibration. Because of this problem, in 1958, it commenced a program of buying the property comprising several city blocks, which lay across Omaha Avenue from its plant. At that time the area it sought to acquire was primarily residential. At the time of plaintiff’s injury, defendant had acquired 180 parcels of land, and at the time of trial, had effected the purchase of an additional 66 parcels, for a total of 246, of approximately 280 such parcels in the area. Most of the property was improved with small residences, and on many of the lots there were garages, sheds or other outbuildings.

Several witnesses called by plaintiff, testified that prior to defendant’s purchases in the area, the homes and premises were well kept, that when defendant purchased the various parcels, it permitted junk, and debris to accumulate in yards and ash pits, permitted the buildings to deteriorate, shingles to fall off roofs, porches to fall away from houses and in general described a condition of extensive dilapidation. Photographs offered and received in evidence corroborate this testimony.

Defendant’s assistant treasurer, called by plaintiff and examined under Section 60 of the Practice Act, and called again by defendant in the presentation of its case, testified that defendant had boarded up the residences, at times ranging from shortly after acquisition of a property, to several months after obtaining possession, that its plant guards patrolled the area several times daily, that its employees, on several occasions had cut the grass and weeds in the yards of the parcels it owned, that it had investigated the possibility of fencing the area, but had abandoned the idea because to do so would cost $165,000, that the cost of razing the buildings on all the property purchased to the time of trial was estimated at $55,000, approximately $200 per parcel. He stated that defendant had no intention of using the houses or sheds in any way. He testified that defendant was aware that children resided in the area, that despite the patrolling of the area by defendant’s plant guards, children played in the yards, sheds and garages. After boarding up the houses, defendant had done nothing about the sheds, garages or ash pits. Defendant knew of the presence of junk and trash in the various yards and ash pits, and was informed that children were playing with these things.

On January 13, 1961, plaintiff was 4 years and 7 months old. He lived with his parents and two older brothers, Billy and Joey, aged respectively 10 and 9, at 1810 Omaha Avenue. At the time of plaintiff’s injury, plaintiff’s place of residence was surrounded on three sides by vacant property owned by defendant, and was directly across Omaha Avenue from defendant’s steel plant. The houses located at 1812, 1814, and 1816 Omaha Avenue had all been purchased by defendant some time between March and June of 1958. These houses had been boarded up. There were sheds or garages behind the boarded up houses, and behind the house known as 1816 Omaha Avenue, there was an ash pit, constructed of concrete blocks, approximately 4 to 5 feet squáre and 4% feet high. The ash pit was approximately 75 or 80 feet from plaintiff’s home.

Plaintiff and a playmate, Allyn Greer, then aged 4 years and 11 months, went to the premises at 1816 Omaha. They placed an old chair alongside the ash pit and climbed up into the pit. While playing in the ash pit, plaintiff tugged at a saw protruding from the ashes in the pit, and immediately thereafter began to cry. Plaintiff’s older brothers, Billy and Joey, and a playmate of Billy’s, Larry Mangiaracino, aged 10, were on the roof of a shed near the ash pit when they heard plaintiff cry out. They testified that they were pulling nails out of the roof, and intended to use the nails in the construction of a club house located in the yard in back of a vacant house several houses down the street. They had thrown some rocks and pieces of glass off the roof, but thought they had thrown them toward the alley, not toward the ash pit. They thought several minutes had elapsed between the time that they had last thrown a rock or piece of glass, and the time when they heard plaintiff cry out.

When the older boys heard plaintiff crying, they came down off the shed, Billy lifted plaintiff out of the ash pit and carried him home. He was bleeding from the eye. He was taken to the office of a pediatrician who referred plaintiff’s parents to an eye doctor, and plaintiff was taken to McMillan Hospital in St. Louis.

It is plaintiff’s theory that when plaintiff pulled or tugged on the saw, which was partially buried in the ash pit, he succeeded in pulling it loose, and when the saw was pulled up and out of the ashes, it struck plaintiff in the eye. It is defendant’s contention that there is no evidence which shows how plaintiff was injured, and that there is no testimony in the record to establish what instrumentality caused plaintiff’s injury.

The testimony shows that when plaintiff was taken to the office of Dr. Berman, the pediatrician, the doctor was given a history of plaintiff’s eye having been cut with a piece of glass. The history in the hospital record states that plaintiff suffered an eye injury “with glass.”

A saw was identified as having been found near the ash pit some time after January 13, 1961, and was offered and admitted into evidence.

Defendant argues that the verdict and judgment are based upon speculation and conjecture, that plaintiff failed to prove the injury was caused by a known defective structure, or dangerous instrumentality or agency on defendant’s premises, the judgment should be reversed and judgment entered for defendant. Plaintiff contends that the evidence shows that defendant should have foreseen the probability of harm to the plaintiff by reason of the conditions which existed on defendant’s property, that the verdict is supported by evidence of facts and circumstances from which the jury drew reasonable inferences, and the judgment should be affirmed.

In Kahn v. James Burton Co., 5 Ill2d 614, 126 NE2d 836, our Supreme Court enunciated the modern version of the doctrine which had its origin in the “turntable” or “attractive nuisance” cases. This doctrine is a clearly defined exception to the general rule that infants have no greater right than adults to go upon the land of others, and that their minority, of itself, imposes no burden on the occupier of land to expect them, or to prepare for their safety. In its opinion, at page 625, the Court said: “It is recognized, however, that an exception exists where the owner or person in possession knows, or should know, that young children habitually frequent the vicinity of a defective structure or dangerous agency existing on the land, which is likely to cause injury to them because they, by reason of their immaturity, are incapable of appreciating the risk involved, and where the expense or inconvenience of remedying the condition is slight compared to the risk to the children. In such cases there is a duty upon the owner or other person in possession and control of the premises to exercise due care to remedy the condition or otherwise protect the children from injury resulting from it. (Wagner v. Kepler, 411 Ill 368.) The element of attraction is significant only insofar as it indicates that the trespass should be anticipated, the true basis of liability being the foreseeability of harm to the child.”

Defendant contends that the rubbish, junk and debris on the premises are not defective structures, or dangerous agencies within the contemplation of Kahn v. Burton. It argues that such a situation would be presented had plaintiff fallen from or through an abandoned structure, but that there is a complete absence of evidence of the existence of any dangerous condition known to defendant which caused plaintiff’s injury, and which defendant could or should have foreseen. It further points out that in the cases decided since Kahn v. Burton, the evidence showed the existence of a defective structure or dangerous agency which was the proximate cause of plaintiff’s injuries. In support of this contention, it points out that in Wilinski v. Belmont Builders, Inc., 14 Ill App2d 100, 143 NE2d 69, plaintiff fell from a homemade ladder at a construction site; that in Kleren v. Bowman, 15 Ill App2d 148, 145 NE2d 810, plaintiff fell over a retaining wall from a parking lot on which the chat was slick, and in Andrews v. General Contracting Co., 37 Ill App2d 131, 185 NE2d 354, plaintiff fell from an old piece of machinery and cut his hand on tile lying on the ground. We fail to see any distinction between the lumber pile in the Kahn case, the slick chat on the parking lot, or the occurrence in Andrews, and the case at bar. Where defendant permitted junk and debris to accumulate in the yards and ash pits of the abandoned houses, and admits it knew children played there, whether the condition thus created was sufficiently attractive to entice children to play there, and whether defendant should have anticipated the probability of injury resulting therefrom, were questions of fact for a jury. There was sufficient evidence for the jury to draw the inference that the saw embedded in the trash pit was the instrument that caused plaintiff’s injury, and the verdict will not be set aside merely because the jury could have drawn different inferences from the evidence. Lindroth v. Walgreen Co., 407 Ill 121, 94 NE2d 847.

Defendant contends further that the evidence fails to prove, as required by Kahn v. Burton, that the expense of remedying the condition is slight compared to the risk to the children. The evidence shows that the cost of razing the buildings and cleaning up the yards of all the properties acquired by defendant would be $55,000, or somewhat over $200 per parcel. The testimony shows that defendant had no plans to use the buildings and intended ultimately to raze them. The evidence supports the conclusion that the expense or inconvenience of remedying the condition is slight compared to the risk to the children. In view of the evidence and the above authorities, the court properly refused to direct a verdict for defendant and properly refused to enter judgment for defendant notwithstanding the verdict.

There remains for consideration defendant’s contention that the judgment must be reversed, and the cause remanded for a new trial, because of a number of errors enumerated in its brief. The first ground argued is that the court erred in permitting Allyn Greer to testify. At the time of trial, Allyn was 8 years of age. Outside the presence and hearing of the jury, he was interrogated by counsel for plaintiff, counsel for defendant and the court. It appears from the record that he knew his age, the name of the school he attended, his teacher’s name, his address and telephone number, knew the man wearing a robe was the judge, that he was in the City Hall at Granite City, that if he lied Jesus would punish him, and that prior to attending speech class he pronounced the word “saw” as “faw.” In the presence of the jury, he identified a photograph of the ash pit, gave a coherent account of the facts leading up to the time when he saw plaintiff pulling on a saw partly embedded in the ash pit, and upon being asked to indicate how long the saw was, indicated 30 inches. He testified that after plaintiff “gave a big yank” on the saw, he started to cry and Billy, plaintiff’s brother, came down off the shed and carried plaintiff home.

In Wigmore on Evidence (3rd edition) at section 505, Professor Wigmore states it is settled that no rule defines any particular age as conclusive of incapacity; in each instance the capacity of the particular child is to be investigated. The requirements essential to qualification to testify are a capacity for recollection, the ability to understand questions and frame intelligent answers, and a consciousness of the duty to speak the truth. An examination of Allyn’s testimony supports the decision of the trial judge that Allyn was competent to testify. The Supreme Court, in rejecting the contention that it was error to permit an eight-year-old witness to testify, stated in Shannon v. Swanson, 208 Ill 52, 69 NE 869, at page 55: “The decision of this matter may be reviewed, but as the intelligence of the witness is to be ascertained, to some extent, by his appearance and conduct while in the presence of the court, and as the judge is vested with a degree of discretion, it is only when there has been an abuse of discretion or a manifest misapprehension of some legal principle that the decision will be reviewed. (16 Am & Eng Ency of Law, — 2d ed — 270, 271.) In the case at bar the witness Harold was subjected to an examination. We have consulted the record with reference thereto, and agree with the trial court that the boy had sufficient mental perception and moral understanding to qualify him to speak as a witness, the weight and value of his testimony being matters for the consideration of the jury.” The trial court did not err in permitting Allyn to testify.

Defendant contends that the court committed reversible error in the manner and words used to inform the jury that plaintiff was not qualified to testify. When plaintiff’s counsel called plaintiff to testify, the court conducted a hearing outside the presence of the jury, and on the basis of the testimony there adduced, ruled that plaintiff was not competent to testify. Upon the jury’s being returned to the court room, the court, in the presence, and within the hearing of the jury, said: “The Court has conducted a hearing outside the presence of the jury and at this time the Court rules that this minor child, Thomas James Dallas, under the laws of this State, is incompetent to testify as a witness, and your objection is sustained.” Defendant contends that in view of this statement, and in view of the fact that the court had permitted Allyn Greer, who was only a few months older than plaintiff, to testify, the jury was left with the plain inference that plaintiff was incompetent because of some mental deficiency, and defendant was thereby prejudiced. In Webster’s Third International Dictionary (1965 Ed) the word “incompetent,” is defined as “lacking specific, qualifications to perform a legal function or duty or exercise a legal right often used without implication of any kind with respect to personal fitness.” The use of the term “incompetent” to denote mental deficiency, although common in legal parlance, is not in general use for that purpose by laymen, and in the absence of some indication that the word was misinterpreted by the jury, it is not apparent that defendant was prejudiced by its use. Defendant made no objection at the time, nor did it ask the court to explain its statement. Defendant cites no authorities in support of its contention and we hold that in making the statement complained of, the court did not commit error.

Defendant urges that the court committed reversible error in admitting the testimony of twelve of plaintiff’s witnesses. In May 1963, defendant served plaintiff with an interrogatory asking for the names and addresses of all persons who “possess knowledge relevant to the facts alleged in plaintiff’s complaint, whether preoccurrence or post occurrence.” Plaintiff made no objection to the interrogatory, and listed several names in its answer. After both parties had announced ready for trial, plaintiff filed a supplemental answer to the interrogatory, listing the names and addresses of 14 witnesses. Plaintiff’s counsel stated to the court that the names of these witnesses had not been known to him until the preceding weekend and were given to opposing counsel at the first opportunity. The record indicates that the court adjourned the trial for the day upon completion of the selection of the jury, and in discussion with counsel pointed out that defendant would have sufficient time to interview the witnesses listed in the supplemental answer, that all of the witnesses lived in the vicinity of defendant’s plant, and that the witnesses were not called until the following day. Their testimony dealt with the condition of the various buildings and yards of the premises purchased by defendant, and with the fact that children played there. Many of them formerly owned and resided in houses which defendant had purchased in the area near its plant.

A similar situation was considered in Quatrano v. Marrocco, 61 Ill App2d 1, 208 NE2d 632, decided by the Appellate Court for the First District on June 29, 1965. We agree with the reasoning therein contained, and hold that in view of the opportunity given defendant to interview the witnesses, the proximity of their residences to defendant’s plant and the place where plaintiff was injured, and the nature of their testimony, the court did not err in permitting them to testify.

Defendant also charges that the court erred in refusing to permit the court reporter who transcribed the discovery depositions of the witnesses, Allyn Greer and William Dallas, to testify concerning prior inconsistent statements made by these witnesses. An examination of the record shows that the portions of the discovery depositions which defendant desired read to the jury are not impeaching of any statement contained in the testimony at the trial, and the court’s ruling was not error.

Over defendant’s objection, plaintiff’s father, William Dallas, was permitted to testify that after January 13, 1961, 5 or 6 men using a truck and a bulldozer razed the garages and sheds at 1812, 1814, and 1816 Omaha, and cleaned up around the ash pit. He estimated their working time at 1% to 2 hours. Defendant moved for a mistrial and the motion was denied. The witness testified that as an alderman of the City of Granite City, he was familiar with the cost of work of the type done by the cleanup crew, and estimated it at $80 to $100.

Defendant contends that the admission of the testimony was so prejudicial as to be reversible error, in that it was proof of precautions taken subsequent to the occurrence and was interpreted by the jury as an admission of negligence. Plaintiff urges that the witness did not testify that the defendant had caused the cleanup work to be done, that it was not offered for the purpose of proving defendant’s negligence or a change in conditions subsequent to the injury, but was offered for the sole purpose of proving the cost of the work necessary to correct the hazardous condition of the premises. Plaintiff argues that this evidence was offered, and properly admitted, to prove that the expense or inconvenience of remedying the condition was slight compared to the risk to the children who played .there. Kahn v. Burton (supra). Defendant’s assistant treasurer had testified that the garage and shed could have been torn down, the debris removed, and the property left free of trash, glass and junk, for a little over $200. He also testified as to obtaining bids for the razing of all the buildings, or in the alternative, fencing the entire area. He also testified that although no houses had been razed, a number of porches had been removed.

Evidence of the cost of cleaning up the premises was properly admitted, and such evidence was offered by both plaintiff and defendant. Defendant is correct in its contention that evidence of what was done subsequent to January 13, 1961, was not admissible as proof of defendant’s negligence, but that does not affect its admissibility for the purpose for which the evidence was offered. In the case of Eizerman v. Behn, 9 Ill App2d 263, at page 279, 132 NE2d 788, the Appellate Court, First District, said: “It is a well settled rule of law that evidence which is competent for one purpose does not become incompetent because the jury might improperly consider it in some other capacity for which it could not properly be admitted. The opponent of the evidence may, if he so wishes, ask for an instruction confining the evidence to its legitimate sphere; and if he fails to so act, he is deemed to have waived any objection he may have. (Citing cases.)” The trial court properly admitted the testimony and there is no error in its rulings on the objection and motion for mistrial.

Defendant contends that the admission of certain testimony during the redirect examination of plaintiff’s medical witness was reversible error. Dr. Kayes, an ophthalmologist testified that he performed surgery on plaintiff’s injured eye, that he sutured a cut on the cornea, that the end result is an eye uncorrectible beyond the level of 20/200, that this is a 100% loss of central vision of the eye and plaintiff, in that eye, is industrially blind. On cross-examination he was asked if a corneal transplant could be performed, and stated that he would not recommend such surgery unless something happened to plaintiff’s other eye, that such an operation would put plaintiff “out of commission for a year.” On redirect he said he would not recommend a corneal transplant unless the choice confronting him was such surgery or total blindness, that the operations are not always successful, and he would estimate a 50-50 chance of success. He was asked if operating on the injured eye presented any risk to the good eye, and answered that if iris tissue or pigmented tissue becomes involved in the wound, there is a possibility, but not a probability, of sympathetic ophthalmia. He defined sympathetic ophthalmia as a disease in which one eye becomes inflamed, and the other eye, although not injured, and not treated in the surgical procedure, becomes involved. He stated that this can result in blindness in both eyes. The onset of the sympathetic ophthalmia is never sooner than 10 days and the longest period reported in medical records, is 25 years. The court overruled defendant’s objection to this testimony, which defendant states is speculative and prejudicial to defendant.

Defendant cites Butler v. Palm, 36 Ill App2d 351, 184 NE2d 633, as authority for its argument, but the situation here presented is clearly distinguishable. In Butler v. Palm, Drs. Roark and Stuttle, in answering hypothetical questions propounded to them, assumed that plaintiff had suffered a brain or spinal cord injury, when no such injury was proved. The court correctly held that the opinion of an expert is to be allowed only if based on, and supported by, facts in evidence.

On cross-examination, counsel for the defendant interrogated the doctor about the possibility of a corneal transplant, and the questions propounded by plaintiff’s counsel on redirect were within the scope of the cross-examination. Darling v. Charleston Community Memorial Hospital, 50 Ill App2d 253, 200 NE2d 149. The doctor testified to the possibility of the onset of a sympathetic ophthalmia, and the possibility of this complication is not more speculative than the possibility of the performance of the corneal transplant suggested in the cross-examination. The fact that the physician testified to a possibility does not of itself make the answer objectionable. Sourian v. Jones, 350 Ill App 365, 371, 112 NE2d 920. Under the circumstances here presented, the court did not err in overruling defendant’s objection.

Defendant complains of the giving of plaintiff’s instructions 8 (Illinois Pattern Jury Instructions 10.04), 6 (IPI 120.04) and 4 (IPI 1.03) and the refusal to give defendant’s tendered instructions 2 (IPI 21.02) and 3 (IPI 120.01).

Plaintiff’s instruction number 6 was intended to be given in cases based upon the holding in Khan v. Burton (supra). In the 1965 Additions and Revisions of IPI, the instruction (IPI 120.04) was modified, in that Paragraph Second, which formerly read “That the defendant foresaw, or in the exercise of ordinary care should have foreseen, that children would be likely to trespass on the premises.”, now reads, “That the defendant foresaw, or in the exercise of ordinary care should have foreseen, that children would be likely to go upon the premises.”

Assuming the presence of the elements enumerated in plaintiff’s instruction number 6, it is clear, under Kahn v. Burton, that defendant was required to use ordinary care to protect plaintiff from the conditions existent upon its premises. The court properly gave plaintiff’s instruction number 8 (IPI 10.04), which instructed the jury that defendant was required to use ordinary care, and defendant’s instruction number 1 (IPI 10.02) which defined the term.

In view of defendant’s duty to use ordinary care, there was no reason to define the term “trespasser” and the court properly refused to give defendant’s instruction number 3 (IPI 120.01).

In our opinion, plaintiff’s instruction number 6 states fairly and accurately what plaintiff must prove under the doctrine of Kahn v. Burton, and defendant’s tendered instruction number 2 (IPI 21.02) was properly refused.

The evidence clearly warrants the giving of plaintiff’s instruction number 4 (IPI 1.03) and the jury was properly instructed that it could consider circumstances shown by the evidence, and draw reasonable inferences therefrom.

Finally, defendant contends that the verdict is so excessive as to indicate it was the result of passion and prejudice. The courts have repeatedly held that the amount of damages to be assessed is peculiarly a question of fact for the jury, and if the jury is properly instructed on the measure of damages, an appellate court should not substitute its judgment as to the sum to be awarded in a given case, for that of the jury. Smith v. Illinois Cent. R. Co., 343 Ill App 593, 99 NE2d 717; Hulke v. International Mfg. Co., 14 Ill App2d 5, 142 NE2d 717; Ford v. Friel, 330 Ill App 136, 70 NE2d 626. This boy had a life expectancy of 65 years, and this court will not say that the value of his eye for that period, in view of the limiting of his opportunities of employment, his pain, suffering, and resultant disfigurement, is less than the amount fixed by the jury.

For the reasons herein set forth, the judgment of the Circuit Court of Madison County is affirmed. ■

Judgment affirmed.

EBERSPACHER, P. J. and DOVE, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Charles Lantry, Trustee Under Trust Agreement Dated June 1, 1960 and Known as Trust No. BLW-1, Plaintiff-Appellant, v. Village of Homewood, a Municipal Corporation, Defendant-Appellee.
    Gen. No. 49,848.
    First District, Second Division.
    November 9, 1965.
    Rehearing denied November 30,1965.
    Altheimer, Gray, Naiburg, Strasburger & Lawton, of Chicago (Samuel T. Lawton, Jr., of counsel), for appellant;
    Winston, Strawn, Smith & Patterson, of Chicago (Richard W. Austin, of counsel), for appellee.
   Not to be published in full.


author: JUSTICE MORAN.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Wilburn Morris, Defendant-Appellant.
    Gen. No. 64-90.
    Fifth District.
    November 10, 1965.
    Craig & Craig, of Mt. Vernon (D. E. Furnall and Glenn E. Moore, of counsel), for appellant;
    Theodore Van Winkle, State’s Attorney, of McLeansboro, and Gerald T. Quindry, Special Assistant State’s Attorney, of Fairfield, for appellee.
   Opinion by

JUSTICE MORAN.

Not to be published in full.


author: MR. JUSTICE DRUCKER

text:
    Justin P. Astrauskas, Plaintiff-Counter-Defendant-Appellee, v. Bernard Tafoya, Defendant-Counter-Plaintiff-Appellant.
    Gen. No. 50,275.
    First District, Fourth Division.
    November 12, 1965.

      David S. Minor, of Chicago, for appellant.
    Melvin A. Garretson, of Chicago, for appellee.
   MR. JUSTICE DRUCKER

delivered the opinion of the court.

Defendant filed a motion requesting this court to reverse and remand this cause for a new trial, asserting that from the short record and papers on file in this court it is apparent that error was committed. Defendant claims that the trial court, over objection, commenced the trial without a court file; that the file was not located during the trial and remains missing; that the court, ex parte, granted a motion for new trial but later vacated its order and reinstated the judgment against the defendant.

Plaintiff filed a motion to dismiss defendant’s appeal for failure to file a notice of appeal in proper time. That motion has not been determined because the short record did not contain all the relevant orders.

A short record shall contain “enough of the record on appeal to show a final order, judgment. ...” In considering defendant’s motion to reverse and remand we find that the alleged “judgment” appealed from, as appears in the short record, reads as follows:

“THE COURT FINDS FOR THE PLAINTIFF ON THE STATEMENT OF CLAIM AND FURTHER FINDS FOR THE DEFENDANT ON THE COUNTERCLAIM.”

This is not a final or appealable order but is merely a finding by the court. Wilke Metal Products, Inc. v. David Architectural Metals, Inc., 55 Ill App2d 34, 204 NE2d 35. An appeal will be dismissed by the reviewing court on its own motion where no final judgment was entered in the trial court. Reynolds v. Wangelin, 314 Ill App 12, 40 NE2d 900. Defendant’s appeal is dismissed.

Appeal dismissed.

McCORMICK, P. J. and ENGLISH, J., concur.

       Rule 5(2) (g) Appellate Court Rules First District — Supreme Court Rule 36(2) (b) [111 Rev Stats (1963), c 110, § 36(2) (b)].


author: MR. PRESIDING JUSTICE BURMAN

text:
    Harold Halpern, Plaintiff-Appellee, Cross-Appellant, v. Dale McLaughlin and William B. Heuser, Defendants-Appellants, Cross-Appellees.
    Gen. No. 49,922.
    First District, First Division.
    November 15, 1965.

      L. Louis Karton, of Chicago, for appellants, crossappellees.
    Rosenthal and Schanfield, William P. Rosenthal, Norman L. Rothenbaum, and Henry M. Morris, of Chicago, for appellee, cross-appellant.
   MR. PRESIDING JUSTICE BURMAN

delivered the opinion of the court.

This is an appeal from a judgment against defendants in a suit for damages arising from a breach of a contract to sell vacant land. Plaintiff has filed a cross-appeal, claiming in his brief that the trial court’s assessment of damages of $24,000 is inadequate and that the award should have amounted to $128,000.

The record reveals that defendants, Dale McLaughlin and William B. Heuser, were the beneficial owners, in 1954, of a twenty-two acre tract of land on the southeast corner of Greenwood Avenue and Central Road in Cook County, west of Glenview, Illinois. After discussions and negotiations, they entered into an agreement on January 15, 1955, with the plaintiff and three other parties: Paul A. Wilde, Eiehard Wilde and Mortimer Klein. These four men were the stockholders of the Mortimer Development Company, a corporation, which dealt in real estate and which held interests in other property in the vicinity of defendants’ tract. The agreement provided, in part, for the formation of the Greenwood Gardens Corporation, and apportioned the stock among the six signatories to the agreement. The defendants- agreed to convey to the newly-formed corporation this tract of land which the corporation was to subdivide, develop and sell. At the time the agreement was signed, title to the real estate was held by the First National Bank & Trust Company of Evanston as land trustee. It is uncontradicted that all of the parties were aware of this fact. But defendants’ interest in the property was also pledged to the Bank to secure their indebtedness to the Bank in the amount of $35,000. The plaintiff denies he was aware of this fact when the agreement was executed, although defendant McLaughlin testified to the contrary.

In any event, paragraph four of the agreement provided that payment to the defendants for the conveyance of this tract was to be by means of the corporation’s debenture note in the amount of $50,000. The agreement further provided in paragraph six, that upon the occurrence of certain specified contingencies, the six signatories would personally pay and discharge the note in amounts proportionate to their respective stock holdings. They further agreed “to pledge to the holder from time to time of said note all of the capital stock of the corporation owned by them.” The agreement was prepared by John J. Flynn, attorney for the defendants. Flynn was also the attorney for the First National Bank & Trust Company of Evanston.

The corporation was formed in accordance with the agreement and its stock was issued and paid for in the amounts specified: Thereafter, Flynn prepared a document which was to serve as the debenture note described in the agreement. The first page and one-half of this document was headed “Debenture Note” and set forth the obligation of the corporation in the amount of $50,000, payable to the order of defendants. Space was provided for the signature of the President of the Corporation (McLaughlin) and for its Secretary (Paul A. Wilde). The provisions of that portion substantially conformed to those set forth in the agreement, but a confession of judgment clause not specified in the agreement was also included.

The remainder of the document, an additional two and one-half pages, was headed “Guarantee” and was followed by a space for the signatures of the six stockholders of the corporation. The text of this segment of the document imposed upon the parties substantially the same personal liability on the note as was imposed upon them by their original agreement.

When this two-part document was submitted by Flynn to the plaintiff, the Wildes, and Klein for their signatures, the first portion bore the signature of McLaughlin, as President of the Corporation, and the guarantee portion had been signed by both McLaughlin and Heuser. Paul A. Wilde then signed the first portion as Secretary of the Corporation, and both of the Wildes signed the guarantee portion. It appears that the guarantee portion was also signed by Klein, although the record is not conclusive on that point. In any case, the plaintiff refused to sign the guarantee portion, and convinced the other three parties that signing a guarantee was not required by the agreement. The guarantee portion was then physically deleted from the note, and the remainder of the note was tendered to Flynn, along with the parties’ stock certificates endorsed in blank and a letter signed by Paul A. Wilde and by plaintiff. That letter, dated August 10, 1955, stated that the “. . . guarantee has been physically deleted from said note by reason of the fact that the Agreement of January 15, 1955, calls for no separate guarantee^ said guarantee being included as paragraph 6 of said Agreement of January 15, 1955.” The letter demanded conveyance of the defendants’ tract to the corporation.

It appears that defendants, in order to induce the Bank to convey title to the real estate, were obliged to provide some other acceptable security to the Bank for their $35,000 obligation; and that they intended the debenture note, with attached guarantee, as prepared by Flynn, to constitute such substitute collateral. It is uncontradicted that the defendants offered to convey their land to the corporation once the guarantee on the note was signed by all of the parties. But when plaintiff refused to execute the guarantee and the note was returned with that portion deleted, the defendants apparently were unable to convey title. Flynn, attorney both for defendants and for the Bank, by his letter of August 11, 1955, rejected the tender as insufficient, returned the documents he had received in that tender, declared a default by plaintiff, the Wildes and Klein, and stated that the contract was terminated and null and void.

A derivative action for specific performance was filed on January 25, 1956, by the plaintiff herein and by the Wildes. The action was dismissed by order of the court, and on February 6, 1957, the same three plaintiffs filed, in their own names, an amended complaint seeking damages for breach of contract and naming as defendants McLaughlin and Heuser. The Wildes were dismissed out as plaintiffs by stipulation on November 8, 1957, without prejudice to Harold Halpern, the sole remaining plaintiff. The court, trying the case without a jury, first heard evidence on the issue of liability, and on April 10, 1964, entered an order finding the defendants guilty of breach of contract for their failure to convey. The defendants thereupon moved for leave to file instanter an Amendment to Answer to Amended Complaint and Counterclaim. The Court denied this motion, and after hearing evidence on the issue of damages awarded $24,000 to the plaintiff by order of June 9,1964.

The basic issue to be determined is whether the parties were required, by virtue of their agreement, to execute a guarantee as an integral part of the corporation’s debenture note. The plaintiff claims that he was not so required, that the documents which were executed and tendered constituted complete performance under the provisions of the agreement, and that defendants breached the contract by thereafter refusing to convey their property. Defendants, on the other hand, contend that the plaintiff was required to execute the guarantee, and that his refusal to do so constituted a breach and justified the defendants’ refusal to convey.

Plaintiff contends that in the construction of a complete written contract, as here, this court must determine as a matter of law the intention of the parties from the four corners of the instrument itself. As a general rule this is correct. Sitnick v. Glazer, 11 Ill App2d 462, 138 NE2d 84; Chicago Land Clearance Commission v. Jones, 13 Ill App2d 554, 142 NE2d 800. If the words of a contract are plain and unambiguous the contract must be so construed as to give effect to the plain and obvious import of the language used. Green v. Ashland Sixty-Third State Bank, 346 Ill 174, 178 NE 468.

However, the Supreme Court has also stated that:

While it is not the province of courts to interpolate new terms into contracts, against the evident intention of the parties, with the view of making such contracts more reasonable, yet, on the other hand, even a strained construction of the language will be adopted for the purpose of preventing obvious injustice. The intention of the parties, it is true, must govern; but the experience of human affairs teaches courts that this intention is not to be sought merely in the apparent meaning of the language used, but this language may be enlarged or limited by reference to the circumstances surrounding the parties and the object they evidently had in view. (Pocius v. Halvorsen, 30 Ill2d 73, at 78-9; 195 NE2d 137.) (Emphasis ours.)

The language in the Agreement relevant to this appeal is in paragraph 6, which reads in part as follows:

In order to assure McLaughlin and Heuser, and the holders from time to time of the $50,000 Note, of the prompt platting and improvement of said premises, the parties hereto agree that, if zoning and platting is not completed within six (6) months from the date of conveyance to the Corporation, or if within one (1) year after such zoning and platting, plans and specifications for underground improvements are not approved, work commenced thereon and satisfactory arrangements made for completion of such improvements, or if said residential lots are not built on and sold so that said $50,000 Note is paid on or before its maturity, then at the option of the holders of the note the same shall become immediately due and payable and the parties hereto, in the proportion McLaughlin — 12%%, Heuser— 12%%, Paul A. Wilde — 12%%, Kichard Wilde— 12%%, Mortimer E. Klein — 25% and Harold Halpern — 25%, agree to immediately pay and discharge said Note. As further security for the payment of said Note, the parties hereto agree to pledge to the holder from time to time of said note all of the capital stock of said Corporation owned by them.

After a careful examination of the agreement, we have concluded that there exists an ambiguity in the contract as to whether the parties agreed to sign a guarantee as an integral part of the debenture note. While the word guarantee was not precisely stated in the contract, the intention is apparent that some further document would be drawn to evidence the agreement of the parties to pay the note in case of certain specified circumstances leading to default. The document called “Guarantee” which was eventually prepared conditioned liability of the parties substantially upon the occurrence of the same events as were set forth in the agreement as giving rise to liability. Thus, the defendants could reasonably have believed that the plaintiff was obliged, under the terms of the contract, to sign that guarantee. Indeed, the fact that the Wildes, and perhaps Klein as well, signed the guarantee without objection suggests that perhaps they too believed that they were obliged under the contract to do so.

But, as plaintiff strongly urges, had the parties intended by the agreement to require an individual guarantee they could have clearly stated in paragraph six that they would evidence their obligation to pay and discharge the note by a guarantee to be attached to the debenture note. Paragraph six as actually drafted, however, requires them personally “to immediately pay and discharge said Note” if a default subsequently occurred and the Corporate Debenture Note is not paid on or before its maturity.

We have concluded that the parties entered into an ambiguous contract, with plaintiff seeing it one way and defendants another, and that the contract may be termed as fairly susceptible to different constructions. Under these circumstances, neither party should be held liable in damages to the other for breach of contract. Strieker v. Umbdenstock, 200 Ill App 20. We are aware of no rule which would, in a case like the present, impose all of the loss upon one of the parties. No reason is perceived, either in law or in equity, why this should be done, and it seems to us that every principle of natural justice forbids it. For that reason and for the reasons aforementioned, the judgment finding the defendants liable must be reversed.

Judgment reversed.

MURPHY and KLUCZYNSKI, JJ., concur.


author: MR. JUSTICE MURPHY

text:
    Muriel Groak, Plaintiff-Respondent-Appellee, v. Addison Groak, Defendant-Petitioner-Appellant.
    Gen. No. 49,931.
    First District, First Division.
    November 15, 1965.

      Bellows, Bellows & Magidson, of Chicago, for appellant.
    Joseph L. Goldberg, of Chicago, for appellee.'
   MR. JUSTICE MURPHY

delivered the opinion of the court.

Defendant filed a petition under section 72 of the Civil Practice Act for relief from a divorce decree, which he alleged contained a “mutual mistake.” After an extended hearing, the trial court denied relief, and defendant appeals.

The decree was entered April 30, 1962. The petition was filed on July 30, 1963, in the original divorce action. It alleges that a written agreement of the parties, included in and made a part of the divorce decree, contained erroneous language, i. e., “That said mutual mistake consisted of using the words ‘the husband will pay all extraordinary medical, dental and hospital bills incurred by the wife and said minor children,’ in said written agreement to express the intention and meaning of said parties as to the payment by your petitioner of extraordinary medical, dental and hospital bills incurred by the plaintiff, instead of words and language of the following tenor and import, to-wit: ‘the husband will pay all extraordinary medical, dental and hospital bills incurred by the wife for said minor children.” (Emphasis supplied.)

The trial court heard witnesses for both sides. The exhibits included: (1) the divorce decree entered by the court, which bears the approval of both parties and their attorneys, and included a “Memorandum of Agreement” and a written “Agreement,” both documents signed by the parties and dated February 15, 1962; (2) the “Report of Proceedings had at the hearing” of the cause, heard on stipulation of the noncontested divorce action on April 6, 1962; and (3) various copies of the written agreement used by the parties during their negotiations, and correspondence between the attorneys.

In the order denying the petition, the .court made a number of findings, which included:

“2. That said decree for divorce incorporated a certain property settlement agreement, which was designated as Exhibit ‘A’ containing pages designated as A through H inclusive; that said decree was duly approved in writing by all of the parties to this action and their respective attorneys.
“3. That on April 2, 1962, at the prove-up hearing, plaintiff was directly interrogated in the presence of the court and all counsel of record with respect to paragraph 13 of Exhibit ‘A,’ which interrogation appears on page 8 of the Report of Proceedings.
“4. That the terms of the Divorce Decree are clear and concise.
“5. That the demeanor while on the witness stand and the reasonableness of her testimony compels the conclusion that MURIEL GROAK testified truthfully and that the evidence offered in her behalf must preponderate.
“6. That petitioner, ADDISON GROAK, has failed to respond to the Notice to Admit Facts heretofore served upon him on November 7, 1963, and said facts are deemed to be admitted as true.
“7. That petitioner, ADDISON GROAK, has not sustained the allegations of his petition by the requisite degree of proof and is not entitled to the relief sought.”

On appeal, petitioner contends: “(1) The finding of the trial court that the petitioner did not sustain the allegations of his petition by the requisite degree of proof is clearly against the weight of the evidence and was occasioned by the trial court’s capricious disbelief of an unimpeached, disinterested witness whose testimony one of ordinary intelligence could not possibly challenge or entertain the slightest doubt as to its truth. (2) The trial court erred in refusing to permit the petitioner to give parol evidence concerning the terms of the separation agreement.”

Upon proper grounds, relief from a final divorce decree after 30 days from the entry thereof may be had upon petition, as provided in section 72 of the Civil Practice Act. (Collins v. Collins, 14 Ill2d 178, 151 NE2d 813 (1958); Van Dam v. Van Dam, 21 Ill2d 212, 171 NE2d 594 (1961); Plavec v. Plavec, 30 Ill App2d 345, 348, 174 NE2d 578 (1961).) We believe a proper ground for relief to be a divorce decree which incorporates a written agreement which fails to express the real intention of the parties “through mutual mistake, or through mistake of one side and fraud on the other,” and “where the proof clearly and convincingly shows that a mistake was made, and that it was mutual and common to both parties.” Harley v. Magnolia Petroleum Co., 378 Ill 19, 27, 28, 37 NE2d 760 (1941).

Defendant-petitioner’s principal witness was the former attorney for plaintiff-respondent. The trial court sustained an objection to the testimony of this witness as to conversations between him and his client on the ground of attorney-client privilege. An offer of proof was made, and later in the proceedings, the court admitted the offer of proof in evidence.

The testimony of respondent’s former attorney was to the effect that in discussions with him, plaintiff kept saying, “I want medical care for myself.” He told her, “I couldn’t do it; she either takes it or leaves it. And she finally said, ‘If that’s all you can do, that’s all you can do.’ And I drafted those things into the contract for settlement.” After the agreement was typed up, he noticed that his secretary had made an error. He, without consulting plaintiff and in his handwriting, changed one copy of the agreement by writing the word “for” over the typewritten word “and,” so that the changed copy read, “the husband will pay all extraordinary medical, dental and hospital bills incurred by the wife for said minor children,” instead of “incurred by the wife and said minor children.” (Emphasis supplied.) He told his secretary to make “all copies — the original and all the copies conform to the way I changed it,” and to mail copies to counsel for the defendant-petitioner for signature and later exchange of signed copies. However, a slip-up in his office resulted in no change being made in the original or copies — “the others were not changed.” The agreement in its unchanged form was proved up at the divorce hearing by an associate counsel, who was unfamiliar with the settlement negotiations.

Defendant-petitioner testified that he had received a copy of the divorce decree with a copy of the agreement attached to it, but that he had been unable to find it. He stated that prior to the entry of the divorce decree, he had discussed its terms with his attorney. An objection was sustained to the question, “Did you agree at any time to pay for your wife’s extraordinary medical expenses?” On or about November 9, 1962, he paid $421.26 to plaintiff for her medical expenses, which resulted from an automobile collision, and in return she assigned to him insurance policy proceeds, which proved to be worthless. He stated, “I figured I might as well pay the medical bills and get the waiver on the insurance and not argue with her.”

On cross-examination, he was shown a certified copy of the divorce decree, and he said it was not identical with the copy received by him; “in Paragraph 13, the copy that I had had the word ‘and’ written over with the word ‘for.’ ”

On inquiry by the court, defendant said he had read the agreement “and I signed all the copies I was supposed to sign,” and had not initialed any changes. He insisted that the misplaced divorce decree copy, which he had received from his lawyer, was “a photostat, and it had this in Paragraph 13, it had the word written over.” He discovered the mistake in June 1963, after plaintiff had demanded payment of $1,200 medical expenses, of which $500 were for plaintiff and $700 for the children.

Plaintiff-respondent testified there was no written change on her copy of the divorce decree or on the original or copies of the agreement signed by her. She denied having any discussion with her former attorney “with respect to extraordinary medical expenses.” She admitted assigning her insurance policy to the defendant to reimburse him for her medical bills paid by him in November 1962. It was during her cross-examination that the court ruled the testimony of her former attorney might be received in evidence “in order to get all the facts here, to be fair to the defendant petitioner.”

The divorce decree report of proceedings shows that plaintiff identified the written agreement and the signatures of the plaintiff and defendant. The associate counsel of her former attorney questioned her in detail about the terms of the agreement, including: “Q. He agrees to pay all medical and hospital bills for you and the children? A. Yes.” The report shows that an associate of defendant’s present attorney also appeared at the hearing.

Examining the exhibits received and offered in .evidence, we note the only place the asserted change appears is on defendant-petitioner’s Exhibit 6 for identification, a certified copy of the decree. Plaintiff’s former attorney, the only person who allegedly made any change, testified that the word “for,” written in ink and appearing on that certified copy (page F), was not in his handwriting. The alleged ink change in paragraph 13 does not appear in (1) the original court decree; nor in (2) the report of. proceedings at the prove-up hearing; nor in (3) plaintiff’s certified copy of the decree.

In denying defendant’s petition, the court repeatedly expressed its disbelief of the testimony of plaintiff’s former attorney. The remarks of the court include: “I cannot give his testimony any credence whatsoever. I do not know what motivated him. I do not know why he did it; I do not know why he came forward, without giving his client, who has a right to claim the privilege, an opportunity to either waive or claim privilege. I do know that his testimony was remarkable, indeed . . . .” Also, “This is a serious thing. You want this Court to take the testimony offered by Mr. . . . , contradicted by this lady, and say, ‘Yes, that change was made.’ They cannot even say who made the change on the various documents.”

We note here that the testimony of the plaintiff’s former attorney as to conversations between him and her related to professional communications between attorney and client and were privileged communications to be protected as the privilege of the plaintiff-respondent. (Wisconsin Lime & Cement Co. v. Hultman, 306 Ill App 347, 28 NE2d 801 (1940).) However, as the trial court rejected this testimony as not worthy of belief, its admission was not prejudicial to plaintiff-respondent.

A court of review will not reverse the findings of a trial judge, who saw and heard the witnesses, unless it is clear that such findings are palpably contrary to the evidence. (Quist v. Streicher, 18 Ill2d 376, 380, 164 NE2d 44 (I960).) Also, where the trial judge has seen and heard the witnesses and the testimony is contradictory, this court will not substitute its judgment as to the credibility of witnesses for that of the trial judge. Brown v. Zimmerman, 18 Ill2d 94, 163 NE2d 518 (1959).

From our examination of this record, it is evident that the findings of the trial judge, who saw and heard the witnesses, were substantially supported by the evidence and are not palpably contrary to the evidence.

For the reasons given, the order appealed from is affirmed.

Affirmed.

BURMAN, P. J. and KLUCZYNSKI, J., concur.


text:
    In the Matter of the Estate of Robert B. Johnstone, Jr., a Minor. Eloise Johnstone, Petitioner-Appellant, v. Elizabeth W. Johnstone, Guardian of the Estate of Robert B. Johnstone, Jr., a Minor, and Robert B. Johnstone, Jr., Respondents-Appellees.
    Gen. No. 50,147.
    First District, First Division.
    November 15, 1965.
    Rehearing denied December 2,1965.

      Ira D. Schultz, of Chicago, for appellant.
    Lord, Bissell & Brook, of Chicago (L. Duncan Lloyd and Kennen E. Wiese, of counsel), for appellees.
   MR. PRESIDING JUSTICE BURMAN

delivered the opinion of the court.

This suit arises out of a claim filed by petitioner, Eloise Johnstone, against the minor’s estate of her stepson, Robert B. Johnstone, Jr.,- for amounts expended by her and obligations incurred by her in financing his. college education. She based her claim upon the contention that in modern society and under the circumstances of this case a college education falls within the legal definition of a “necessary”; and that since she furnished the only funds available for her stepson’s college education he is liable to her under established principles of law. The court specifically found that petitioner’s expenditures were not for “necessities,” and dismissed her claim. Petitioner has appealed from this ruling.

Upon the minor’s graduation from high school, he indicated his desire to continue his education at Dartmouth College in Hanover, New Hampshire. His father, Robert B. Johnstone, Sr., who was living at the time, approved of his son’s plans, and in order to meet the costs of this education applied to the LaSalle National Bank for a loan under the Bank’s Assured College Education Plan. As an integral part of this plan, the bank requires the applicant sponsor to purchase an insurance policy on his own life, naming the bank as beneficiary. It appears from the record in this case that the poor health of the minor’s father made him unable to qualify for such a policy, thereby preventing him from signing the loan as applicant sponsor. The application was signed by petitioner, the minor’s stepmother as applicant sponsor and the minor’s father signed as “Spouse of Applicant Sponsor.”

Semi-annual payments of $750 by the bank direct to Dartmouth College began in September of 1961, and continued through the sixth payment in December of 1963, at which time the minor’s father died and payments by the bank ceased. Prior to his death, Eobert B. Johnstone, Sr., had made regular repayments to the bank in the amount specified in the terms of the loan. At his death, the balance due the bank was $2,101.50, for which the bank has held petitioner responsible and which she has reduced by further payments. She seeks recovery from the minor’s estate for this amount.

Two life insurance policies were left by the minor’s deceased father. The first was a policy in the amount of $5,000, which named the petitioner as beneficiary. The other policy was in the amount of $10,000, and named petitioner and the minor as beneficiaries, each in the amount of $5,000. Petitioner seeks to recover against the minor’s share of the proceeds of this policy. The record reveals that the father’s estate is insolvent, and petitioner claims that all the monies she received from the policies will be used to pay claims against the estate.

It is well-established, as a general rule, that a minor or his estate may be liable for necessaries furnished him. Pelham v. Howard Motors, Inc., 20 Ill App2d 528, 156 NE2d 597. As to the definition of a “necessary,” our Supreme Court stated in McKanna v. Merry, 61 Ill 177:

There is no positive rule by means of which it may be determined what are, and what are not, necessaries. Whether articles are of a class or kind for which infants are liable, or whether certain subjects of expenditure are necessaries, are to be judged of by the court. Whether they come within the particular class, and are suitable to the condition and estate of the infant, is to be determined by the jury as a matter of fact. . . . Blackstone defines necessaries to be “necessary meat, drink, apparel, physic,” and says that an infant may bind himself to pay “for his good teaching and instruction, whereby he may profit himself afterwards.” The articles furnished, or money advanced, must be actually necessary, in the particular case, for use, not mere ornament, for substantial good, not mere pleasure; and must belong to the class which the law generally pronounces necessary for infants. (61 Ill 177, at 178-9.)

In Crandall v. Coyne Elec. School, Inc., 256 Ill App 322, the court cited the McKanna case, and went on to say:

It is recognized that a proper education is a necessary. But what is a proper education depends on circumstances. ... A common school education is said to be a necessary in this country. (Citing cases.) In the latter case, it is said that circumstances, however, may exist where a more liberal education might properly be found a necessary as a matter of fact. (256 Ill App 322, at 324.)

Thus, the trial judge in this case was charged with the responsibility of determining whether, on the basis of the evidence, a college education for this minor could be classified as a “necessary.” But, as pointed out by Professor Williston, “What are necessaries is determined not simply by the nature of the thing, but by the need, of that thing at that time by the infant in question.” (Vol 2, Williston on Contracts, 3d Edition, 1959, § 244, at p 61.) The evidence in this case showed the minor was at the top of his class in high school and that there was available to the minor a full tuition scholarship to the University of Chicago. The Court could have found from the evidence that the minor might have received from Dartmouth College either a scholarship or a loan on more favorable terms than the one received from La Salle National Bank. In light of these facts and the tests for “necessaries” set forth above, we cannot conclude that the Chancellor’s findings were manifestly against the weight of the evidence, and therefore we cannot disturb his judgment. Grove v. Chicago Title & Trust Co., 25 Ill App2d 402, 166 NE2d 630.

Petitioner’s claim is subject to a further objection. It has been the established rule in Illinois since Sinklear v. Emert, 18 Ill 63, that a minor is liable for necessaries furnished him only if they are furnished on his credit, and not on the credit of another. Professor Williston states it thus:

It is essential to recovery that- necessaries shall have been furnished on the credit of the infant. If furnished on the credit of his parent or guardian, he is not liable; ... (Vol 2, Williston on Contracts, 3d Edition, 1959, § 240, at p 51).

In this case, the record is clear that at the time the Johnstones entered into the loan agreement, the minor was not asked by either of them to repay the loan at any future time. Petitioner did not testify that she signed the note at the request of the minor, nor that she did so in reliance upon his credit. Indeed it appears that she obligated herself for the indebtedness at the request of her husband. The minor testified that while he knew a loan had been made he did not know, until after his father’s death, that his stepmother was obligated on that loan. He further testified that his father told him that the loan was merely for the sake of convenience in view of the fact that his income fluctuated widely. Finally, the minor’s father had paid regularly his tuition at a private high school, never indicating that the costs were beyond his ability to pay. In view of these facts, we conclude that petitioner has failed to prove that the funds for the minor’s college education were furnished on his credit. For this reason, her appeal must fail, even assuming arguendo not only that the Dartmouth College education was a “necessary” in this case, but also assuming arguendo that petitioner is correct in her contention that a stepmother can recover for necessaries furnished despite the fact that a natural or adopting parent cannot.

For all of these reasons, the judgment of the Probate Division of the Circuit Court of Cook County must be affirmed.

Judgment affirmed.

MURPHY and KLUCZYNSKI, JJ., concur.


author: JUSTICE KLUCZYNSKI.

text:
    David Israel, Plaintiff-Appellant, v. Yellow Cab Company, a Corporation, Defendant-Appellee.
    Gen. No. 50,346.
    First District, First Division.
    November 15, 1965.

      Richard C. Bleloeh and Eugene J. Kelley, Jr., of Chicago, for appellant;
    Jesmer & Harris, of Chicago, for appellee.
   Opinion by

JUSTICE KLUCZYNSKI.

Not to be published in full.


author: PRESIDING JUSTICE BURKE.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Henry McClellan, Defendant-Appellant.
    Gen. No. 49,878.
    First District, Second Division.
    November 16, 1965.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (James J. Doherty and Frederick F. Cohn, Assistant Public Defenders, of counsel), for appellant;
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Richard T. Buck, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by

PRESIDING JUSTICE BURKE.

Not to be published in full.


text:
    Catherine P. Schoeffler, Plaintiff-Appellant, v. The Village of Oak Park, a Municipal Corporation, and Glenn Sunde, Commissioner of Public Works of the Village of Oak Park and J. M. Corbett Co., an Illinois Corporation, Defendants-Appellees.
    Gen. No. 49,947.
    First District, Second Division.
    November 16, 1965.
    James C. Kellogg, of Chicago, for appellant;
    Arthur C. Thorpe, of Chicago, for appellee.
   Opinion by

PRESIDING JUSTICE BURKE.

Not to be published in full.


author: JUSTICE LYONS.

text:
    Ludwig A. Hirz, Plaintiff-Appellee, v. Stephen Lee and Lillian H. Lee, Defendants-Appellants.
    Gen. No. 49,766.
    First District, Second Division.
    November 16, 1965.
    Alfred M. Loeser, of Chicago, for appellants;
    Greenstein & Solotke, of Chicago (Gerald M. Chapman, of counsel), for appellee.
   Opinion by

JUSTICE LYONS.

Not to be published in full.


author: MR. PRESIDING JUSTICE BURKE

text:
    City of Chicago in Trust for the Use of Schools, Plaintiff-Appellee, v. The Exchange National Bank of Chicago, as Trustee Under its Trust No. 1765, Defendant-Appellant.
    Gen. No. 50,119.
    First District, Second Division.
    November 16, 1965.

      Myer H. Gladstone, of Chicago, for appellant.
    James W. Coffey and Frank S. Righeimer, of Chicago (Richard E. Girard, of counsel), for appellee.
   MR. PRESIDING JUSTICE BURKE

delivered the opinion of the court.

This is an appeal from a judgment on a verdict in a condemnation case awarding defendant $25,500 as just compensation for the taking of its improved real estate located at 612 South State Street, Chicago, by the City of Chicago in trust for the use of schools. Plaintiff filed a petition to condemn eight adjoining parcels of land located on lots 25-feet-wide and 108%-feet-deep on the west side of South State Street in the block between Harrison Street on the north and Polk Street on the south, for the Jones Commercial School. The lots extend westward to a 16-foot alley. All the lots were improved with buildings constructed during the period from 1873 to 1910 and consisted of four rooming houses, one burlesque theater, one movie house, one cafeteria (converted theater) and one three-story store and loft building, used as a pawn shop and for storage. Two of the eight buildings had taverns on the first floor and another two had lunch rooms on the first floor. Parking lots occupied all of the east side of State Street across from the condemned property. Two others of the eight parcels were contested and tried with the subject property. One of these, the burlesque house, was settled after evidence was heard but before the case went to the jury. The other, a cafeteria, formerly a movie house, remained in the case for a verdict and judgment but there was no appeal.

The general neighborhood was described by defendant’s witness Mr. Hartwig in response to a question from defendant’s attorney as “not the best neighborhood but I think it is far superior to what we call skid row, which I refer to as West Madison Street.” Witness Hokanson, for plaintiff, testified that the area had not improved much through the years. The jury viewed the subject property, which is parcel 3 at 612 South State Street, on the west side of the street, a lot 25 feet in width and 10814-feet deep. On it was a 75-year-old brick building, three stories and a basement, with party walls on its north and south sides. The building practically covers the entire area. Its floors were of wood except the basement which was of dirt. The stairs leading from the first to the second and the second to third floors were wooden. Parts of the building were in fair condition and other parts in poor condition. The first floor was used for a pawn shop office and storage. The second floor also was used for storage and had a burglar alarm system. The third floor was unoccupied and at one time was used for living quarters. The lighting on the first floor consisted of four tube fluorescent lighting fixtures dropped from the ceiling on stems. The second floor had open bulb lighting hanging from the ceiling. There were some toilet facilities. A steel beam runs the whole length of the building with adjustable steel posts to carry the weight of the stock and a safe in the back of the store. The first floor and the mezzanine are in good condition. The rear half of the second floor is in good condition and the balance is in “fair condition.” The building was at the time of the trial owner-occupied as a pawn shop. A suspended gas-fired, forced-air blower heats the first floor.

The defendant, in arguing for a reversal and a new trial, says that the judgment for $25,500 is against the manifest weight of the evidence. Plaintiff answers that the verdict of the jury, which viewed the premises, is within the range of the evidence and should be sustained. The testimony of plaintiff’s only valuation witness, Harry L. Shlaes, placed a valuation of $25,000 on the subject property. The only valuation witness of the defendant testified to a valuation of $52,000. Shlaes has been a real estate manager, broker and appraiser for 37 years and has sold, managed and appraised numerous loop properties, including the block on the east side of South State Street almost directly across from the subject property. He has known the property and this South State Street area for 30 years. The buildings date from right after the Chicago fire to around the turn of the century. He testified that the highest and best use of the subject property was its existing use for pawn shop and loft purposes. He based his opinion of the value of the subject property on his knowledge and experience in the real estate market, his experience in managing and selling properties of the same type as the defendants in the metropolitan area and the checking of sales of comparable properties which confirmed his opinion of the value of the parcel.

Mr. Shlaes testified as to the sale of comparable property in the immediate vicinity, which was the property at 739 South State Street, one block south of defendant’s property and on the east side of the street. It consisted of a lot 40 by 138.5 feet and like defendant’s property was improved with a three-story and basement brick loft building. This comparable property was sold for $25,000 on October 6, 1961. No question was raised to its comparability and defendant offered no sale of any comparable improved property.

There was another sale of improved property that was in the case when it went to the jury. That was the theater building operated as a burlesque house at 616 South State Street, two doors south of the subject property. The parcel known at 616 South State Street consisted of a lot 25 feet by 108% feet improved with a brick building covering almost the entire lot, part of which was two stories in height. The building was in good condition with central heating and was purchased in November 1959, for $20,250 cash, after having been listed with brokers and advertised for sale.

On cross-examination, Mr. Shlaes based his opinion of the fair cash market value both upon his definition thereof and his personal experience. In determining the fair market value of the subject property Mr. Shlaes capitalized the net income on a 10% basis. In his opinion the rental value unheated is $400 per month or $4,800 per year. From this he deducted taxes of $1,915, exterior maintenance of $200, insurance premiums amounting to $200, a 5% management fee of $240, making a total of $2,555. He said that the net income based upon his opinion of the rental value is $2,245, which capitalized on a 10% basis is $22,500. He thought a 10% capitalization basis is fair.

Oliver Hartwig, the appraisal expert for the defendant testified that he had been in the appraisal business since 1948. He was an appraiser for approximately four years with the United States Veterans’ Administration from 1926 to 1928. He was a licensed real estate broker, but gave that up when he went into the appraisal business. He examined parcel 3, the subject premises. The site is 100 feet south of Harrison Street facing on State Street with a subway entrance in front. The building is stove heated throughout with the exception of a first floor which has a suspended unit heater, gas-fired. He testified that in his opinion the fair cash market value of the subject property is $52,000. His valuation of $52,000 is based on his examination of the building. He had no sales or management experience and had not appraised any State Street property. Mr. Shlaes, plaintiff’s appraisal expert, has had a wide general experience as an appraiser and broker of real estate, a wide knowledge of the highest and best use of the State Street area and particularly parking lot knowledge acquired through sales, leases and managing of parking lot properties. Mr. Shlaes’ valuation testimony was based on his knowledge and experience in the real estate market, his experience managing and selling properties of the pe involved, checking the sales of comparable properties, which confirmed his opinion of the value of the subject property and on the capitalization of the net income. It is the rule in this State that where damages are awarded by a jury, in a proceeding in which the evidence is conflicting and the jury views the premises and fixes the amount of compensation within the range of evidence, its verdict will not be disturbed unless there has been a clear and palpable mistake or the verdict was the result of passion and prejudice. Trustees of Schools of Tp. No. 36 v. LaSalle Nat. Bank, 21 Ill2d 552, 556, 173 NE2d 464; Forest Preserve Dist. of Cook County v. Collins, 348 Ill 477, 181 NE 345; Forest Preserve Dist. of Cook County v. Dearlove, 337 Ill 555, 169 NE 753; Jefferson Park Dist. v. Sowinski, 336 Ill 390, 168 NE 370. We are of the opinion that the verdict was within the range of the testimony. There is no claim that the jury was influenced by passion or prejudice. There was evidence as to the value and use of the real estate on the east side of South State Street extending south from Harrison Street immediately across from the subject property. The lots on the east side of South State Street extend to a depth of 138.5 feet. The lots on the east side of State Street are closer to Wabash Avenue and to the Michigan Avenue hotels. The trial judge declined to permit cross-examination of Mr. Shlaes about the sale of the vacant tract of land at the southeast corner of State and Harrison Streets with 200-feet frontage on the east side of State Street and 138.5-feet-deep. The trial court properly found in accordance with the adjudicated cases that the sale should be excluded. The trial court’s ruling was consistent with the decision in City of Waukegan v. Stanczak, 6 Ill2d 594, 129 NE2d 751, where the court in excluding an offered sale said at p 607:

“Neither in size nor potential use was there similarity, and while size alone may, in a case of similar use, be no basis for excluding evidence of comparative sales, where the size is less than 1/30 of the tract in question and a different use involved, we cannot say it was error to exclude such a varied comparison.”

See also Forest Preserve Dist. of Cook County v. Alton R. Co., 391 Ill 230, 62 NE2d 701; Forest Preserve Dist. of Cook County v. Chilvers, 344 Ill 573, 176 NE 720; Sanitary Dist. of Chicago v. Boening, 267 Ill 118, 107 NE 810. Defendant has cited Department of Public Works and Buildings v. Diggins, 374 Ill 11, 27 NE2d 826; as authority for admission in evidence in the case at bar of sales of property on the opposite side of State Street whose highest and best and actual use was for a public parking lot. In Diggins the property whose sale was admitted in evidence, although vacant, was adaptable for the same use as the condemned property. In the case at bar there was no such similarity. No witness in the case at bar testified that the improved subject property had any adaptability for use as a parking lot. Neither valuation witness so testified. Each witness disclosed that he considered that the three-story stone and brick building on the subject property added substantial value to the 25 by 10814-foot lot on which it stood and that the parcel’s highest and best use was for its present use, pawn shop and storage. The language used in opinions must be viewed in the light of the facts of the particular case. The highest and best use of the 200-foot parcel on the southeast corner of State and Harrison was ádmittedly for automobile parking. Its size made it especially adaptable for this purpose. The defendant’s parcel was improved with a three-story loft building one-tenth the size of the corner parking lot and there was no testimony that the subject parcel was adaptable for parking lot use or had a potential use for this purpose. We do not think that the court erred in excluding this testimony.

No challenge was made of the sale of the comparable property at 739 South State Street, which sale was brought out on cross-examination of witness Shlaes by defendant. That was a 40 by 138.5-foot lot improved with a three-story brick loft building similar to the structure of that of the subject parcel. The sale price was $25,000.

In the cross-examination of witness Shlaes, the defendant went into the method of fixing the fair cash market value of the property by giving separate values for land and buildings of the subject parcel. The trial court’s refusal to permit this inquiry is supported by the Illinois authorities. In Department of Public Works and Buildings v. Lotta, 27 Ill2d 455, 189 NE2d 238, the court said at p 456:

“We have consistently held that the fair market value of improved property is not the sum of the value of the building and the value of land computed separately. For this purpose, the whole does not necessarily equal the sum of the parts. The value of unimproved land, adaptable for any use, may diminish, as land, when improved by the construction of a building and so committed to a particular use. For similar reasons, the construction of a building may not produce an increment in value equal to its cost, since the improvement may not be desirably situated. To avoid misleading and confusing the jury, the evidence may properly be confined to the value directly at issue, that is, the value of the improved land as a whole.”

The defendant charges that Mr. Shlaes falsely included in his estimated expenses an item for management although the owner managed the property himself and did not incur management expenses. To paraphrase the opinion in Department of Public Works and Buildings v. Pellini, 7 Ill2d 367, 372, 131 NE2d 55, there is nothing to show that the estimates used by Mr. Shlaes were unreasonable in regard to what a prospective purchaser would likely need to spend in utilizing the property. The defendant in the case at bar did not challenge the propriety of this method by introducing evidence of an accepted contrary practice.

In support of its motion for a new trial the defendant offered two affidavits. The court denied the motion for a new trial and ordered that the affidavits be stricken. The court did not err in refusing to consider these affidavits. The matter set out therein was discoverable prior to trial upon the exercise of reasonable diligence.

The judgment is affirmed.

Judgment affirmed.

BRYANT and LYONS, JJ., concur.


text:
    Romeo Bernardini and Joyce Bernardini, Plaintiffs-Appellees, v. Home and Automobile Insurance Company, a Corporation, Defendant-Appellant.
    Gen. No. 50,189.
    First District, Second Division.
    November 16, 1965.
    Ernest K. Koehler, of Chicago (Robert E. Gordon, of counsel), for appellant.
    Thomas P. Cernek, of Chicago, for appellees.
   MR. PRESIDING JUSTICE BURKE

delivered the opinion of the court.

Plaintiffs filed a complaint to recover reasonable medical expenses incurred by them resulting from an automobile accident on March 26, 1963. On that day, Romeo Bernardini (one of the plaintiffs) owned and operated an automobile in which Joyce Bernardini (the other plaintiff) was a passenger, which was involved in a collision with a vehicle driven by Stewart E. Swanson. At the time of the collision the plaintiffs were covered by a policy of insurance issued by Home & Automobile Insurance Company which provided for the payment of all reasonable medical expenses incurred within one year of an accident. The insurance policy contained an express medical subrogation clause and a clause requiring the co-operation of the insured in relation thereto. The plaintiffs effected a settlement through the Allstate In-, surance Company, the insurer of Swanson, and executed a general release in favor of Swanson. The defendant refused to pay the medical bills incurred by the plaintiffs, claiming that the plaintiffs prejudiced its subrogation rights contained in the policy. In the trial the parties stipulated to the existence of the insurance contract, the collision, the subrogation and cooperation clauses in the insurance contract and the execution by plaintiffs of a general release in favor of Swanson. The trial court rendered judgment for the plaintiffs, holding that the medical subrogation clause was an assignment of a personal tort and thus void as against public policy. Defendant appealed. The plaintiffs maintain that the clause in issue is an attempted assignment of an integral part of a personal injury tort and is void as against public policy. Defendant contends that the clause grants the well recognized right of subrogation to recover, from a third-party tort-feasor, the payments made to reimburse the insured for medical expenses caused by the tort-feasor; that the medical subrogation clause in the insurance contract is not an assignment of a personal tort and that when the insured executes a general release in favor of the third-party tort-feasor the insured is precluded from recovering from the insurance carrier because he has prejudiced any and all rights which the carrier may have by virtue of the subrogation provision. The defendant also urges that medical expense coverage is one of indemnity and, therefore, one in which subrogation rightfully belongs and that the very nature of the provision and the mechanics of State control as well as the consideration paid by the insured for its benefits make it a beneficial ingredient for the general welfare of the insurance industry and for the people of our society.

Both parties to this controversy recognize that in Illinois causes of action for personal torts are not assignable. We agree with the defendant that in the instant case the record does not show an assignment of a personal tort. Subrogation operates only to secure contribution and indemnity whereas an assignment transfers the whole claim. In the instant case the medical subrogation clause does not purport to transfer or assign the entire claim of plaintiffs against the tort-feasor; it impresses a lien in favor of the insurer to the extent of its payment upon any recovery obtained by the plaintiffs from the tort-feasor. The subrogation does not deprive the insured of a recovery for pain and suffering and this is illustrated here in the fact that the plaintiffs recovered much more than their medical expenses which obviously included an undetermined amount for pain and suffering. In Illinois the legislature has vested the Director of Insurance with the rights, powers and duties pertaining to the enforcement and execution of the insurance laws of the state. See Ill Kev Stats 1963, c 73, §§ 755 and 1013. It can be inferred from the fact that the Director of Insurance took no action against the defendant’s medical provision of the policy that he felt it did not violate any provision of the Insurance Code or deceptively affect the risks that are purported to be assumed by the policy.

In Remsen v. Midway Liquors, Inc., 30 Ill App2d 132, 174 NE2d 7, the court held that subrogation through a “trust agreement” under the uninsured motorist’s endorsement of an automobile insurance policy was not an assignment of an action for injuries to the body and thus was not against public policy. At issue was the legal effect of the “trust agreement” whereby the insured in consideration of his own insurance carrier paying him the amount of legal damages flowing from the tort of an uninsured motorist, agreed to hold in trust for his insurer any proceeds that the insured may later obtain from the tort-feasor or any other person legally responsible to the insured up to the amount paid by the insurance carrier. The court held that the agreement was only for subrogation to part of the proceeds of the cause of action which remained in the insured and was not an assignment of a cause of action for tort. The recent case of Damhesel v. Hardware Dealers Mut. Fire Ins. Co., 60 Ill App2d 279, 209 NE2d 876, involved a factual and legal situation parallel to the case at bar. We held that the subrogation clause did not constitute an assignment of a personal tort and that the policy was one of indemnity. In that case we affirmed the judgment of the trial court in favor of the insurer where the insured had settled his claim for personal injuries with the tortfeasor and executed a general release. We decided that the trial court was right in holding that the insured had breached his contractual obligation by executing the general release, which prejudiced the rights of the insurer.

We conclude that the trial court erred in entering judgment for the plaintiffs. The violation by the plaintiffs of the valid subrogation clause precluded their right to recovery.

The judgment is reversed and the cause is remanded with directions to enter judgment for the defendant and against the plaintiffs.

Judgment reversed and cause remanded with directions.

BRYANT and LYONS, JJ., concur.


author: MR. PRESIDING JUSTICE McCORMICK

text:
    In the Matter of the Petition of Eulos R. Morehead and Rose Morehead, His Wife, To Adopt Baby Girl, Valentine. James Valentine, Petitioner-Appellant, v. Eulos R. Morehead, Rose Morehead, Edward J. McGinnis, Guardian Ad Litem, Respondents-Appellees.
    Gen. No. 50,531.
    First District, Fourth Division.
    November 19, 1965.
    Stewart D. Spitzer and Jesse Brown, of Chicago, for appellant.

      Edward F. Vyzral and Herman R. Tavins, of Chicago, for appellees, Eulos R. Morehead and Rose Morehead.
   MR. PRESIDING JUSTICE McCORMICK

delivered the opinion of the court.

In an adoption proceeding, an appeal was taken by James Valentine from an order finding him unfit as a father, terminating his rights as a parent, enjoining him from interfering with the custody of the child, and reaffirming a prior interim order which had awarded temporary custody of the child to Mr. and Mrs. E. R. Morehead.

The facts were that on September 19, 1964, Barbara Valentine gave birth to a baby girl. Mr. and Mrs. E. R. Morehead, appellees, filed a verified petition on September 22, 1964, to adopt the baby, and made the usual recitations, including an allegation that Barbara Valentine was the sole surviving parent of the child. Barbara Valentine consented to the proposed adoption. An amended petition to adopt the child was filed on March 5, 1965, by the Moreheads in which they further alleged that James Valentine claimed to be the father of the child; that he had abandoned the mother and the child; and that he was unfit to have custody of the child. It was further stated on information and belief that he was not the father of the child.

By leave of the court James Valentine filed a verified petition on March 5,1965, in which he alleged that he had married Barbara on December 10, 1963; that she left him while she was pregnant on or about January 19, 1964; that Barbara Valentine had filed divorce proceedings on June 17, 1964; that he was subsequently informed that a child had been born of the marriage; that he was denied information of the child’s whereabouts; that on or about December 1, 1964, he was informed of the adoption proceedings, and that he had not been served with summons nor had he consented to the adoption. He prayed for a vacation of the order granting custody to the Moreheads and for an order giving him custody of the child. (The record does not indicate whether or not the divorce suit proceeded to a decree.)

After a hearing the Circuit Court entered an order on March 24, 1965, finding James Valentine unfit as a parent, and reaffirmed an order entered on September 28, 1964, which had awarded temporary custody of the child to the Moreheads.

The statute governing adoption of children (Ill Rev Stats 1963, c 4) provides that parental consents shall be required in all cases, unless the person whose consent would otherwise be required shall be found by the court to be an unfit person (§9.1-8). The statute further provides that as soon as practicable after the filing of a petition for adoption the court shall hold a hearing to determine the validity of the parental consent and to determine whether there is available suitable temporary custodial care for the child sought to be adopted; after such investigation as the court deems necessary, the court upon satisfactory proof may terminate the parental rights of the parents and declare the child to be a ward of the court, and vest the temporary care, custody and control of the child in the petitioners (§ 9.1-13). Six months thereafter the petitioners may apply to the court for a decree of adoption; if after a hearing the court is satisfied that the adoption is for the welfare of the child, and that there is a valid consent, the court will thereupon enter a decree for the adoption of the child (§ 9.1-14). Finally, the statute provides that the Civil Practice Act shall apply to all adoption proceedings except as otherwise specifically provided, and that an appeal from a decree of adoption or other appealable order or judgment may be taken by any party thereto (§ 9.1-20).

Section 50(2) of the Civil Practice Act (Ill Rev Stats 1963, c 110, § 50 (2)) provides:

“If multiple parties or multiple claims for relief are involved in an action, the court may enter a final order, judgment or decree as to one or more but fewer than all of the parties or claims only upon an express finding that there is no just reason for delaying enforcement or appeal. In the absence of that finding, any order, judgment or decree which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not terminate the action, is not enforceable or appealable, and is subject to revision at any time before the entry of an order, judgment or decree adjudicating all the claims, rights and liabilities of all the parties.”

Under the interpretation of that section (Ariola v. Nigro, 13 Ill2d 200, 148 NE2d 787; Hanley v. Hanley, 13 Ill2d 209, 148 NE2d 792; Hawthorn-Mellody Farms Dairy, Inc., for use of Lumbermens Mut. Cas. Co. v. Elgin, J. & E. Ry. Co., 18 Ill App2d 154, 151 NE2d 393; Brenner v. Neu, 26 Ill App2d 319, 168 NE2d 449; and Cannon v. Thompson, 28 Ill App2d 69, 170 NE2d 174), the March 24, 1965 order is not a final and appealable order of the court; nor does that order have the character of a final judgment order, and therefore it is outside the scope of this court’s authority. Harris Trust & Savings Bank v. Briskin Mfg. Co., 63 Ill App2d 12, 211 NE2d 32. Since the order entered on March 24, 1965, was not a decree of adoption, nor a final order, and since that court, at any time after entering the order until the final decree of adoption was entered, could have modified or changed such order, this court on its own motion dismisses the appeal.

However, it is provided that if the decree of adoption is entered and if James Valentine desires to take an appeal therefrom, this court will consider the briefs, abstract and record filed in the instant case so far as they are applicable, together with such supplementary briefs, records and abstracts as he may deem necessary to file at that time.

Appeal dismissed.

Dismissed.

DRUCKER and ENGLISH, JJ., concur.

       The order of March 24,1965, provided in part as follows:
      “This cause coming on to be heard on the Amended Petition of EULOS R. MOREHEAD and ROSE M. MOREHEAD, his wife, to adopt BABY GIRL VALENTINE; the Petition of JAMES VALENTINE and ANSWERS; thereto; and the Court having heard the testimony of the parties in open Court, all parties hereto being represented by counsel; the Court having observed the demeanor of the witnesses; and the Court being fully advised in the premises,
      DOES FIND:
      1. That BABY GIRL VALENTINE was born on September 19,1964.
      2. That JAMES VALENTINE is the father of BABY GIRL VALENTINE.
      3. That JAMES VALENTINE, having filed a Petition herein, has submitted himself to the jurisdiction of this Court.
      4. That JAMES VALENTINE is found to be unfit to have the parental right of care, custody, control and education of BABY GIRL VALENTINE.
      IT IS THEREFORE, ORDERED, ADJUDGED AND DECREED,
      a. That leave is granted to JAMES VALENTINE to file his Petition herein.
      b. That leave is granted to EULOS R. MOREHEAD and ROSE M. MOREHEAD, to file their Amended Petition.
      c. That the temporary Order heretofore entered herein granting EULOS R. MOREHEAD, and ROSE M. MOREHEAD the temporary custody of BABY GIRL VALENTINE, pending a final Decree, is hereby re-affirmed and shall stand.
      d. That JAMES VALENTINE is hereby enjoined from bothering or interfering with the privacy of EULOS R. MOREHEAD, ROSE M. MOREHEAD or BABY GIRL VALENTINE, and if any contact or interference with the peace of said EULOS R. MORE-HEAD, ROSE M. MOREHEAD or BABY GIRL VALENTINE is brought to the attention of the Court, the said JAMES VALENTINE will be summarily charged with contempt of Court.”