text:
    Danny Lee McDonald, Plaintiff and Counterdefendant-Appellant, v. Gloria D. McDonald, Defendant and Counterplaintiff-Appellee.
    (No. 12143;
    Fourth District —
    July 25, 1973.
    Costello & McGary, of Springfield, (Michael J. Costello, of counsel,) for appellant.
    Equi, Farwell, Rickelman & Proteau, of Oak Park, (William F. Rickelman, of counsel,) for appellee.
   Mr. JUSTICE TRAPP

delivered the opinion of the court:

The father appeals from an order granting a change of custody to the mother.

The divorce was awarded upon the mother’s counterclaim in July, 1972, and the decree awarded custody of Shawn, then aged four and one-half years old, to the father, and of Ryan, then aged two years eight months old, to the mother. The decree does not show that any evidence was heard upon the issue of custody and there is no finding of fact by the court or determination concerning the best interests of the children. Such placing of the children had been arranged by the parents at the time of the separation in 1970, albeit there was thereafter some discussion of reconciliation between the parties prior to the date of the divorce proceedings.

The decree provided that each parent should have the child in the custody of the other on one weekend in each month and that each parent should have the custody of both children for two weeks in each of the months of June and August. The decree sets out the court’s insistence that the boys be together in the periods of long visitation provided.

On December 2, 1972, the father re-married and Shawn now resides; with his father, step-mother and the latter’s two year old daughter. The father is employed as an electronics electrician with take-home pay of $137.00 per week. He and his family occupy a two bedroom apartment renting for $80.00 per month. Shawn’s step-mother did not testify in these proceedings for change of custody and there is no affirmative evidence concerning her interest in, or wishes, regarding the raising of Shawn. The mother is employed in Oak Park earning $108.00 per week, and occupies a six-room apartment which is located adjacent to a park and school. During her working hours, the son, Ryan, was left with a baby-sitter, who is a neighbor.

At the hearing on the petition for change of custody, the parties stipulated that at the time of the divorce, the petitioner opposed the dividing of the children between her and her husband, but agreed to this arrangement on advice of counsel upon being informed that this was the only way to avoid a contested trial in view of her husband’s insistence upon being made custodian of Shawn. The parties also stipulated that petitioner’s counsel had advised her that she could petition the court for a change in custody about six months later due to a change in circumstances.

The father admitted that he had not exercised his full rights of visitation with his son, Ryan, although he saw Ryan at his parents’ house in Vandalia two or three times when his former wife visited her parents in Vandalia. It was an eight-hour drive to Oak Park and back from Springfield, and he did not want to drive this distance twice on a single weekend in order to visit Ryan. The father testified that he had taken Ryan for only one week during August, instead of the two weeks allowed him by decree. The mother testified that her former husband had not taken Ryan since before the decree when she had requested her husband to take Ryan for a week. The mother had exercised her rights of visitation with Shawn by taking him for three weeks and some weekends since the time of the decree.

The mother testified that when the two boys are separated after each visitation, they both become upset. She said that Ryan cries all the way home because he is afraid that he wont see Shawn again.

There is no issue of the unfitness of either parent. Rather, the father contends on this appeal that his former wife failed to prove such a change in circumstances as would justify the modification of the original decree.

In awarding the custody of the children, the court exercises a judicial discretion. (Mikrut v. Mikrut, 113 Ill.App.2d 446, 251 N.E.2d 84; Marcus v. Marcus, 109 Ill.App.2d 423, 248 N.E.2d 800; Fears v. Fears, 5 Ill.App.3d 610, 283 N.E.2d 709.) There is persuasive reasoning in the language of King v. King, 25 Wis.2d 550, 131 N.W.2d 357, that where custody is awarded upon the stipulation of the parties and the court receives no evidence upon the best interests of the child or children, the court does not, in fact, exercise judicial discretion in awarding custody and that the rule that a custody order is subject to modification only if there is a substantial change of condition affecting the child’s welfare does not apply. See Harms v. Harms, 323 Ill.App. 154, 55 N.E.2d 301.

In such sense, this case differs from Girolamo v. Girolamo, 5 Ill.App.3d 627, 283 N.E.2d 713, where the mother testified that it was for the best interests of the child at the time of the decree that custody be placed with the father.

Upon the matters in this record, we conclude that there is, in fact, such change of condition as would subject the custody order to modification. The father testified in these proceedings that it was to the best interests of each of the boys that they be raised together. The record is clear that the father’s exercise of visitation has been limited by his inability or his disinclination to overcome the inconveniences incident to the arrangement. As one result, the view of the court expressed in the original decree that the boys should spend as much time together as possible has been substantially diminished. On the other hand, the wife has substantially exercised her visitation rights.

The father argues that the evidence does not show that Shawn, in his custody, has been adversely affected by his failure to exercise visitation with Ryan. The argument is not persuasive in the light of the father’s testimony as to the best interests of the boys that they be together. It is said that it is usually desirable that strong family ties be encouraged between children. Mikrut v. Mikrut, 113 Ill.App.2d 446, 251 N.E.2d 84.

In Windhorn v. Windhorn, 131 Ill.App.2d 785, 264 N.E.2d 531, it is said that re-marriage of a parent is not enough alone to support a change of custody. That opinion affirmed a change of custody to the mother where her then husband demonstrated an interest and affection for the child and it appears that such change was for the best interests of the child. In Girolamo v. Girolamo, 5 Ill.App.3d 627, 283 N.E.2d 713 and Peraza v. Tovar, (1957), 13 Ill.App.2d 405, 142 N.E.2d 165, there was affirmative evidence that a newly acquired wife welcomed the child into her household. Here no such affirmative evidence appears in this record, either as to the older son, Shawn, in the custody of the father, or as to the younger son, Ryan, who would be in the home for the substantial periods of visitation contemplated in the original decree. See Clark v. Clark, 1 Ill.App.3d 69, 273 N.E.2d 26.

The order of the trial court granting the petition to change the custody of Shawn from the father to the mother should not be disturbed unless the trial court abused its discretion, or unless the order is contrary to the manifest weight of the evidence. The evidence supports the conclusion that it was in the best interests of these children that they be reared together as members of one family unit. The welfare and real interest of the children takes precedence over the interest or claims of the parties. Walter v. Walter, 61 Ill.App.2d 476, 209 N.E.2d 691.

The judgment below is affirmed.

Affirmed.

CRAVEN, P. J., and SMITH, J., concur.


source: Caselaw Access Project

author:
Mr. JUSTICE JONES
      Mr. JUSTICE CREES

license: Public Domain

text:
    The City of Pana, Plaintiff-Appellee, v. Harold Crowe et al., Defendants-Appellants.
    (No. 72-248;
    Fifth District —
    July 23, 1973.
    CREBS, J., dissenting.

      J. Dale Berry, of Kleiman, Cornfield and Feldman, of Chicago, for appellants.
    Joseph L. Fribley, of Fribley & Fribley, of Pana, for appellee.
   Mr. JUSTICE JONES

delivered the opinion of the court:

Does the Illinois Anti-Injunction Act (Ill. Rev. Stat, ch. 48, sec. 2(a)), prohibit the issuance of an injunction against a strike by city employees engaged in the maintenance of services essential to the public?

Plaintiff-appellee is the City of Pana, population 6,400, and defendants-appellants are a local union of municipal employees, its officers and members. The city operates water, sewer, street and police departments, the employees of which are members of the local union. Prior to April 30, 1972, the city and the local union were parties to a collective bargaining agreement. Before the date of expiration of the agreement negotiations were conducted with a view to its extension, but the negotiations were unsuccessful. On Friday, June 9 the mayor was notified by telephone that the members of the union had voted to call a strike effective at 7:00 A.M. on Monday, June 12. At the appointed time a majority of the city employees had failed to report for work. At 8:00 A.M. the city obtained ex parte a temporary injunction which enjoined the work stoppage. The injunction was served shortly thereafter and the employees were back at work before 10:30 A.M. that morning. After a hearing in which both parties participated the temporary injunction was made permanent. The order for the permanent injunction made findings that the failure of the individual defendants to report for work, or to continue their work, was a direct interference in the operation of the city’s water, sewer, street and police departments with the resultant inability of the city to maintain the services furnished by those departments.

It goes without question that such services may be deemed essential to the health, safety and welfare of the city’s inhabitants. The injunction prohibited the officers, agents, representatives and members of the defendant union or persons acting in combination, consort or sympathy with them from:

“(a) Engaging in a strike or any form of cessation of work, against the City of Pana.
(b) Hindering or obstructing in any manner the use and maintenance of the building, structures, machinery and equipment, owned, rented, maintained and used by the City of Pana, in its governmental or proprietary functions.”

Defendants have appealed contending that the injunction was issued in violation of the plain terms of the Anti-Injunction Act and therefore it should be dissolved. The plaintiff contends, on the other hand, that there are expressions of public policy found in certain constitutional and statutory provisions relating to the public health, safety and welfare which effectively override the provisions of the Anti-Injunction Act, that since the services involved here are furnished by the city pursuant to the mandate of such constitutional and statutory provisions the Anti-Injunction Act is accordingly rendered inapplicable.

Broadly stated the Anti-Injunction Act prohibits the issuance of injunctions against peaceful picketing or strikes. It is to be noted that the Act states no exceptions to its application in the event peaceful picketing or a strike is being conducted by public employees or where the employment relates to the public health, safety and welfare.

In addition to the Anti-Injunction Act we must heed three relevant decisions of tíre supreme court. The first of these is Board of Ed. of Community Unit School Dist. No. 2 v. Redding 32 Ill.2d 567, 207 N.E.2d 427. The case involved a strike by custodial employees of a school district. Upon application by the governing board of education the trial court refused to enjoin the strike or the attendant picketing upon the grounds that plaintiff had failed to show irreparable injury and the picketing was peaceful and a valid exercise of free speech. On appeal the supreme court reversed, finding that there was expressed in the Illinois constitution a public policy to provide a thorough and efficient system of free schools which was of sufficient importance to transcend the right of custodial workers at a school to strike or picket. The anti-injunction statute was not mentioned.

Next, in Peters v. South Chicago Community Hospital (1969), 44 Ill. 2d 22, 253 N.E.2d 375, the court considered the application of the Anti-Injunction Act to a strike by employees of a not-for-profit hospital. It was there argued, akin to Redding, that the public interest in the uninterrupted and efficient operation of hospitals would override the public interest in the rights of hospital employees to strike and picket. The supreme court rejected the argument, stating:

“The language of the statute is clear and it makes no exceptions for hospitals. This is the only legislative expression of public policy which touches on the labor relations of these not-for-profit hospitals. As we have mentioned, the General Assembly has failed to enact legislation which would govern these labor relations otherwise than as expressed in the anti-injunction statute. Unlike Redding there is no overriding expression of public policy here such as the constitutional .mandate that the General Assembly shall provide a thorough and efficient system of free schools, # Ill. Const, art. VIII, sec. 1.”

The court accordingly declined the public policy exemption from the Anti-Injunction Act in favor of a not-for-profit hospital.

Finally, in County of Peoria v. Benedict (1970), 47 Ill.2d 166, it was squarely held that the Anti-Injunction Act applies to public employees. Involved there was a strike by employees of a nursing home operated by Peoria County pursuant to statutory authorization. The court stated with little ceremony that for the same reasons given in Peters v. South Chicago Community Hospital the Anti-Injunction Act was applicable and the preliminary injunction was erroneously issued.

Confronted with these decisions the appellee city asks this court to find in certain constitutional provisions and statutory enactments an expression of public policy which would justify, if not require, our finding as overriding of the Anti-Injunction Act, as in the Redding case. We are reminded that the city performs services of water purification and distribution, sewage treatment and disposal, police protection and street maintenance — functions undoubtedly vitally concerned with the health, safety and welfare of the city’s inhabitants. Specifically, the city cites the preamble to the 1970 Illinois Constitution which states one of the purposes of establishing the constitution as being “In order to provide for the health, safety and welfare of the people;” and art XI, sec. 1 of the 1970 Illinois Constitution which provides: “The public policy of the State and the duty of each person is to provide and maintain a healthful environment for the benefit of this and the future generations.” The city also cites art. XI of the Municipal Code (Ill. Rev. Stat., ch. 24, art. XI, sec. 1 — 1) which carries the subtitle of “Public Health, Safety and Welfare” and contains statutes authorizing (but not requiring) cities to provide fire and police protection, sewage disposal services, etc. The city •finally points to certain provisions of the Environmental Protection Act (Ill. Rev. Stat., ch. 111½, sec. 1001, et seq.) which generally prohibits the pollution of the environment and makes it incumbent upon owners and official custodians of public water supplies to maintain water supply facilities so as to assure a safe, clean and adequate water supply for domestic consumption.

We have examined these references and find them to be general, scattered and indirect and at best to constitute vague authority for the proposition advanced. We are unable to find in them an expression of public policy sufficient to override the clear and direct expression of the Anti-Injunction Act. We think it better to adhere to the obvious and hold that the Anti-Injunction Act does apply to the case at hand. Which we do. The conclusion is compelled by the Benedict case.

The city understandably is able to ascribe to the public a greater interest in maintaining the services involved here than with the operation of a county nursing home as in Benedict. But such a distinction would be too finely drawn. We cannot in good conscience find greater public concern in the functions of police, sewer, water and street departments than with the care of the sick, the aged, the infirm and the helpless.

In the Peters case the Supreme Court noted that the anti-injunction statute is the only legislative expression of public policy which touches on the labor relations of not-for-profit hospitals. The statement is likewise true for the employees of the City of Pana. The Anti-Injunction Act was adopted 48 years ago in 1925. Time has witnessed a change in attitudes regarding collective bargaining by public employees. More than half of the states and the federal government as well have enacted legislation recognizing rights of some public employees to form associations and enter into collective bargaining agreements respecting such matters as wages and working conditions. Such recognition of the rights of public employees has come in response to ferment and agitation in which public employees claim, with considerable justification, the same right to collective bargaining and impasse resolution as employees in the sector of private employment. These forces are present in Illinois and have frequently resulted in highly disruptive and sometimes dangerous strikes. Although there have been two reports to the legislature from investigating commissions which have recommended the adoption of appropriate legislation, none has been forthcoming and the anti-injunction law remains essentially the only statute in the field. (See the Report of the Governors Advisory Commission on Labor-Management Policy for Public Employees, 1967, and the Report and Recommendations of the Commission on Labor Laws to the Governor and the General Assembly, 1971 and 1973.) The 1971 report of the Commission on Labor Laws stated: “There can be little question, moreover, that it is preferable to have the basic framework for union-management relations in the public sector established by legislation rather than to have the law evolve in piecemeal fashion through judicial decisions.” With this conclusion the courts can only be in hearty agreement. The case by case pronouncement of decisions of courts are made in answer to specific issues and cannot serve to create a satisfactory body of public employee labor laws. The result must necessarily be segmented and piecemeal, unsatisfactory alike to governmental employers, their employees and the public.

The order issuing the permanent injunction is reversed.

G. MORAN, P. J., concurs.

Mr. JUSTICE CREES

dissenting:

While I heartily agree with that portion of the opinion which indicates that the General Assembly should take further action in regard to union management relations in public employment, I do not concur in the result reached in this case. In my opinion the situation here is governed by Board of Education v. Redding, 32 Ill.2d 567 rather than County of Peoria v. Benedict, 47 Ill.2d 166.


author: Mr. PRESIDING JUSTICE CRAVEN

text:
    Ernest Ralston, Plaintiff-Appellee, v. Illinois Power Company et al., Defendants—(Davis Manufacturing, Inc., Defendant-Appellant.)
    (No. 11942;
    Fourth District —
    July 19, 1973.

      French L. Fraker, of Dobbins, Fraker & Tennant, of Champaign, for appellant.
    Jay H. Janssen, of Peoria, for appellee.
   Mr. PRESIDING JUSTICE CRAVEN

delivered the opinion of the court:

This appeal arises out of a personal injury action brought against defendants Davis Manufacturing, Inc. and Illinois Power Company by the plaintiff Ernest Ralston. The complaint against the defendants contained three counts: Count I was against Illinois Power and based on a negligence theory; Count II also sounded in negligence and was directed against Davis Manufacturing, Inc.; and Count III was based on the theory of products liability brought solely against Davis Manufacturing, Inc. — the maker of a trencher with a hydraulic boring attachment.

Illinois Power and Davis Manufacturing filed motions for summary judgment as to all three counts. The trial court granted the motions as to the negligence counts; however, it rejected Davis Manufacturing’s motion as to Count III. Davis Manufacturing then filed a motion under Supreme Court Rule 308 for a finding by the trial court to permit it to enter an application for leave to appeal. The trial court granted the application which was filed and granted by this court.

The single issue identified on appeal by the trial court is: “Did the acts and conduct of the Plaintiff, Ernest Ralston, as admitted by him in his deposition taken in this cause on July 18, 1969, constitute ‘assumption of the risk’ by him, as a matter of law, thereby barring recovery by him.”

Defendant’s motion for summary judgment as to Count III was accompanied by a copy of the plaintiff’s discovery deposition. The deposition contained certain admissions made by the plaintiff that he had knowledge of the danger involved by his action yet voluntarily and deliberately exposed himself to the risk of attending such conduct. The defendant submits that in light of these admissions the plaintiff should be barred as a matter of law from recovering under Count III.

The following facts stand uncontroverted. The plaintiff was employed by Martin-McAuliffe Co., a company that had contracted with Illinois Power to install gas lines under various streets in Champaign, Illinois. In the installation of these gas fines it was necessary for employees of Martin-McAuliffe Company to use trenching equipment owned by Illinois Power Company and manufactured by the appellant. The trenching equipment was capable of being converted to a device that could bore holes under streets where it was not feasible to dig trenches. The conversion is accomplished by connecting the boring device to a power take-off attachment of the trencher and an auger rod is then connected to the boring device. An auger rod consists of a 20' length of pipe approximately 2" in diameter. A boring or drilling bit is attached to the end of an auger rod which in turn does the actual boring when the power take-off is activated.

When the plaintiff was injured, there were rods 100' in length in use. Due to this length, the rods were very flexible and consequently when the boring bit hit a solid object, the rods would buckle and bend upwards instead of remaining horizontal. The day the plaintiff sustained his injury the boring rod buckled up three times as the result of hitting hard materials. When the rod buckled for the third time, the plaintiff stood on the exposed part of the rotating rod pursuant to an order given him by his supervisor. While standing on the rod, the operator of the trenching device reversed the direction of the rotating rod, thereby causing the plaintiffs pantleg and foot to become entangled in the rotating rod and resulted in the injury to the plaintiff’s left leg. Eventually the plaintiffs left leg below the knee had to be amputated.

Plaintiff admitted in his discovery deposition that he had worked with the trenching and auger equipment prior to the accident and that he had stood on the rod on several other occasions. He admitted that he knew that the procedure in which he was injured was dangerous. Moreover, he stated that he had admonished his foreman several times about the hazardous nature of this procedure and that he had realized the possible eventuality of an accident such as that which occurred.

In Williams v. Brown Mfg. Co., 45 Ill.2d 418, 426, 261 N.E.2d 305, 310, it was announced that contributory negligence is not a defense to an action of strict products liability, but that assumption of risk is. The court stated “that ‘assumption of risk’ is an affirmative defense which does bar recovery, and which may be asserted in a strict liability action notwithstanding the absence of any contractual relationship between the parties.” The court went on to note that the test to be resorted to in determining whether one has assumed the risk is “fundamentally a subjective test, in the sense that it is his knowledge, understanding and appreciation of the danger which must be assessed, rather than that of the reasonably prudent person [citation] * *

Essentially, an individual assumes a risk when that person recognizes and understands the dangerous condition of a product and yet voluntarily and unreasonably proceeds to use the product “in disregard of this known danger.” (Sweeney v. Matthews & Co., 46 Ill.2d 64, 66, 264 N.E.2d 170, 171.) In other words, the party expressly or implicitly consents to taking his chances of harm from a particular risk known to him and created by a manufacturer. Denton v. Bachtold Bros., Inc., 8 Ill.App.3d 1038, 291 N.E.2d 229.

The factual circumstances and issues of this case are quite similar to those found in Fore v. Vermeer Mfg. Co., 7 Ill.App.3d 346, 287 N.E.2d 526. In the Fore case, the court found that plaintiff made certain admissions in his discovery deposition, tire substance of which was that he had actual knowledge of the danger complained of and understood the risk involved, yet he deliberately exposed himself to such risk. The court held that “as a matter of law he assumed the risk” and affirmed the trial court’s granting of summary judgment against the plaintiff.

Plaintiff attempts to explain away his assumption of risk by submitting that he acted as he did because of a directive from his foreman. An employee cannot exculpate himself from the legal consequences of his acts on the grounds that he is fearful of losing Iris job if he does not comply with his superior’s orders. The fact remains that the plaintiff knew and appreciated the risk and still voluntarily assumed it. An order from a superior “does not make his exposure to the risk involuntary.” Fore v. Vermeer Mfg. Co.

In Kirby v. General Motors, 10 Ill.App.3d 92, 293 N.E.2d 345, this court held that statements made by the plaintiff in a discovery deposition amounted to admissions of an assumption of risk that was known to him; and that as a matter of law, summary judgment had to be entered in favor of the defendant. We stated:

‘Where, as in this case, there is no genuine issue of material fact, and the court finds as a matter of law that there is a complete defense to the cause of action, it is not only proper, but it is the duty of the trial court to enter summary judgment for the defendant. [Citations.]”

In this case, the plaintiff’s admissions stand uncontroverted. It is an established fact that he was aware of the risk involved in standing on the rotating auger and that he deliberately exposed himself to such risk; therefore, as a matter of law he assumed the risk and is barred from recovering from the appellant.

The judgment of the trial court denying the motion of Davis Manufacturing, Inc. for summary judgment is reversed and this cause remanded with directions to grant the motion and enter judgment accordingly.

Reversed and remanded.

TRAPP and SIMKINS, JJ., concur.


author: Mr. JUSTICE SIMKINS

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Ernest B. Dinora, Defendant-Appellant.
    (Nos. 11809-11937 cons.;
    Fourth District —
    July 25, 1973.

      Heckenkamp & Fuiten, of Springfield, for appellant.
    Richard A. Hollis, State’s Attorney, of Springfield, for the People.
   Mr. JUSTICE SIMKINS

delivered the opinion of the court:

On February 24, 1971, in a case bearing Sangamon County Circuit Court Docket Number 144-71 the grand jury returned a two-count indictment charging that the defendant-appellant, Ernest B. Dinora, on the 18th day of August, 1970, committed the offense of keeping a gambling place in that he knowingly permitted a building located at 212 North Fourth Street, in the City of Springfield, occupied by him tmd under his control, to be used as a gambling place in violation of IU. Rev. Stat. 1969, ch. 38, sec. 28 — 3. Count II of the indictment was also bottomed upon the same offense as described in Count I but sought the enhanced penalty provided in sec. 28 — 3 for each subsequent conviction and recited prior convictions of the defendant.

On February 24, 1971, in a case bearing Sangamon County Circuit Court Docket Number 148-71, the grand jury returned a five-count indictment charging the defendant-appellant Ernest B. Dinora with the offense of keeping a gambling place at 212 North Fourth Street on the 5th day of October, 1970. The other counts of the indictment sought enhanced penalty under the provisions of sec. 28 — 3 of the Criminal Code and recited prior convictions but all counts were keyed to October 5, 1970.

On March 19, 1971, the state’s attorney in cause bearing Sangamon County Circuit Court Docket Number 185-71 filed a petition for injunction, to abate a nuisance, under the provisions of Ill. Rev. Stat. 1969, ch. lOOVz, sec. 14 et seq. This petition named Dinora as the party defendant. The petition alleged that Dinora owned the premises at 212-214 North Fourth Street, recited that on November 30, 1970, he had pleaded guilty to a charge of keeping a gambling place at 212 North Fourth Street on May 20, 1969; that on the same day he pleaded guilty to a charge of gambling in that he possessed slips by which racing bets were recorded on May 23, 1969, which said slips were found during a search, pursuant to warrant, of the first floor rooms of 212 North Fourth Street; that the first floor rooms of 212 and 214 North Fourth Street and the basement which underlies them were so integrally related that they constituted a common gambling place “* 9 9 and are a public nuisance by sec. 28 — 3 Criminal Code of 1961, as amended, and continue to constitute such nuisance, 9 9 The petition prayed that the court declare all the first floor rooms at 212 and 214 North Fourth Street and the underlying basement, a public nuisance; that the court perpetually enjoin the use of the premises for such nuisance and that the court enjoin, for a period of one year, the use of said premises for any purpose whatsoever.

Ill. Rev. Stat. 1969, sec. 28 — 3, provides that a gambling place is any real estate used for purposes of gambling and that any person who permits any premises owned or occupied by him or under his control to be used as a gambling place, shall be fined or imprisoned and sub-sec. (a) of sec. 28 — 3 declares that “such premises is a public nuisance and may be proceeded against as such, 9 9 Ill. Rev. Stat. 1969, sec. 37 — 4, provides, in pertinent part, that the state’s attorney of the county of nuisance may commence an action to abate a public nuisance as described in sec. 37 — 1 of the Criminal Code. This section further provides that the proceedings and hearings upon the merits shall be in the manner of “an act in relation to places used for the purpose of using, keeping or selling narcotic drugs, approved July 5, 1957, reference being to Ill. Rev. Stat. 1969, ch. IOOVb, sec. 14 et seq. Ill. Rev. Stat. 1969, sec. 37 — 1, provides that any building used in the commission of offense prohibited by sec. 28 — 3 of the Criminal Code is a public nuisance and provides for penalties by fine or imprisonment or both. Ill. Rev. Stat. 1969, ch. lOOVa, sec. 17, provides that upon the filing by the state’s attorney of a complaint to abate a public nuisance the defendant shall be held to answer the allegations of the complaint “* * * as in other civil proceedings.” Sec. 18 of the statute provides in pertinent part that “The plaintiff at any time before, but not later than 10 days after, the filing of the answer, * * * may file interrogatories in writing concerning matters material to the allegations of the complaint or respecting the ownership of the property upon which it is claimed the nuisance is maintained. A full answer to each interrogatory under the oath of the defendant shall be filed with the clerk within 10 days after a copy of the interrogatories has been served upon him. For a failure to so answer interrogatories the court may strike the answer to the complaint from the files and enter default and a decree pro confesso, and a rule to answer interrogatories may be entered and the court may punish a defendant for contempt of court for a refusal to obey such rule. No person shall be excused from answering interrogatories under oath on the ground that an answer may tend to incriminate him or subject him to a penalty or forfeiture. The answer shall be evidence against, but not on behalf of, the defendant and it shall not be used against him in any criminal proceeding nor shall he be prosecuted or subjected to a penalty or forfeiture for or on account of any transaction, matter or thing disclosed by him in such answer responsive to the interrogatories.” (Emphasis supplied.)

In the action to abate the public nuisance, and pursuant to sec. 18 of the statute, the state’s attorney propounded certain interrogatories to the defendant Dinora, a portion of which, together with defendant’s responses, is as follows:

“INTERROGATORY 1) State whether Defendant is the true owner of the premises described in paragraph 1 of the Petition filed herein.
ANSWER TO NO. 1) Yes, together with his wife.
INTERROGATORY 5) State whether any gambling has occurred on the premises described in paragraph 1 of the Petition filed herein during the period of time the Defendant has owned, occupied or controlled said premises; for each such occurrence of gambling state:
a) The date
b) The participants
c) Which room of the premises it occurred in
d) Whether any record was made of any bet taken or made
e) Who made such record
f) Where such record was kept while in the possession of the Defendant
g) Who has custody of such record at the present time
ANSWER TO NO. 5) Gambling has occurred on the premises described as 212 North Fourth Street on numerous occasions, all within the knowledge of the State’s Attorney, the State’s Attorney having information as to the dates, the participants, and the particular room where the gambling occurred. No records were maintained thereof, except those that are in the possession of the State’s Attorney, the Illinois Bureau of Investigation, the Federal Bureau of Investigation, and the Internal Revenue Service. Never at any time since the premises have been owned by the Defendant has any gambling occurred on the premises known as 214 North Fourth Street.
INTERROGATORY 6) State in which rooms of the premises any monies used for gambling, or any gambling paraphernalia were kept, maintained or stored during the period the premises were owned, occupied or controlled by the Defendant.
ANSWER TO NO. 6) All paraphernalia of former gambling, when in the possession of tire Defendant, were located in the front room of 212 North Fourth Street, but all such paraphernalia has been seized either by the State’s Attorney of Sangamon County, or the Federal Bureau of Investigation, and is not now in the possession of the Defendant.
INTERROGATORY 7) State the name and address of every person known to the Defendant, his attorneys, agents, or employees, who was a witness to or participant in any gambling, which occurred on the premises while they have been owned, occupied, or controlled by the Defendant; for each such person named, state the date of any gambling he witnessed or participated in, and the room of the premises in which such gambling occurred.
ANSWER TO NO. 7) Richard Mattera made certain baseball bets during the late summer and early fall of 1970 with one Jack Conley, at 212 North Fourth Street.”

On August 4, 1971, the trial court entered a decree finding that the defendant Dinora had used the first floor rooms of 212 North Fourth Street to maintain a gambling place in violation of Sec. 28 — 3 of the Criminal Code, and that the premises were a public nuisance and ordered injunction to issue. The decree also found that the premises at 214 North Fourth Street had not been used for purposes of gambling.

On September 8, 1971, the defendant Dinora filed his Motion to Dismiss and In Bar of Prosecution in criminal cause 144-71 alleging, in effect, that his responses to the interrogatories in the suit brought to abate the nuisance at 212 North Fourth Street, brought him within the immunity provisions of the section of the statute above quoted. On September 8, 1971, prior to commencing trial on the indictment the trial judge heard the motion and denied it as to Count I of the indictment because “Count I it was filed on or before the date that the interrogatories were answered and I do not feel this statute applies in this particular situation.” He then dismissed Count II of the indictment, stating “I am holding that Count II, the statute in question, is a complete immunity statute and since Count II, or a portion thereof is based upon May 20, 1969, which was one of the allegations in the injunction suit, constitutes complete immunity.” On September 15, 1971, the State’s Attorney filed Notice of Appeal from the order dismissing Count II.

The case then went to trial on Count I of the indictment. One of the principal witnesses called by the People was John Thomas Conley who was referred to in the defendant’s response to the State’s Attorney’s interrogatories and whose name was not endorsed on the indictment as a witness before the grand jury. The defendant offered no evidence, and at the close of the Peoples’ case, orally renewed his motion to dismiss which the trial judge again denied. This oral motion was made and ruled upon on September 8, 1971.

At the conclusion of the trial defendant was found guilty. On October 8, 1971, the defendant renewed his motion and again urged that prosecution was barred by the immunity provisions of the statute. The motion was denied and defendant was sentenced to a term of one year at the Illinois State Penal Farm at Vandalia. On October 8, 1971, defendant filed his notice of appeal from the order of the court which denied his motion in bar. We have, on our own motion, consolidated the two appeals arising from case 144-71.

On February 24, 1971, in a case bearing Sangamon County Circuit Court Docket Number 148-71 the grand jury returned a five count indictment against the defendant Dinora. Count I charged him with keeping a gambling place at 212 North Fourth Street on October 5, 1970, and Count III charged him with the offense of gambling on October 5, 1970, in that he made a $10.00 wager on the result of a football game. Prior to trial in case 148-71, and following his response to the interrogatories above mentioned, defendant filed the same motion in bar of prosecution predicated upon the statutory immunity, as was filed in case 144-71. The motion was denied; the defendant was tried; found guilty on both Counts I and III and was sentenced to the Department of Corrections for a period of not less than one year and not more than one year and a day; the sentence to run concurrently with the sentence imposed in case 144-71. The evidence during the trial indicated that the football bet in question had been made at the premises at 212 North Fourth Street. In this case too, one of the principal witnesses for the People was John Thomas Conley who had been named in defendant’s responses to the interrogatories. Defendant appeals from the order denying his motion in bar of prosecution. The appeal in case 148-71 (our general number 11937), has been consolidated with the two appeals in case 144-71 (our general number 11809) since all of the appeals have a common question of law.

The People urge that the order denying defendant’s “Motion to Dismiss and In Bar of Prosecution” was an interlocutory order from which no appeal lies and that consequently this court has no jurisdiction of defendant’s appeal and that the appeal must be dismissed, citing People v. Miller, 35 Ill.2d 62, 219 N.E.2d 475. In Miller, the defendants were charged with the crime of rape and during the trial and at the close of the evidence the jury was unable to reach a verdict and a mistrial was declared. Later, on motion of the State, and without notice to the defendants the rape indictment was dismissed by the court. On the same day the grand jury returned a new indictment which charged the defendants with rape of the same person and additional counts charging them with indecent liberties and contributing to the delinquency of the victim who was a minor. The defendants filed a motion to dismiss the new indictment and the trial court dismissed those counts which charged the indecent liberties and contributing charges but denied the motion for dismissal of the counts charging rape. As on appeal the supreme court held that no appeal will lie from an interlocutory order and that the motion to dismiss the rape counts was an interlocutory order. The defendant’s motion here, while titled “Motion to Dismiss and In Bar of Prosecution” is, despite the title, a motion in bar. It does not fall within any of the grounds upon which the defendant may move to dismiss a charge as set forth in Ill. Rev. Stat. 1969, ch. 38, sec. 114 — 1. Neither does the motion in bar fall within the purview of Ill. Rev. Stat. 1969, ch. 38, secs. 116 — 1, 116 — 2. Sec. 116 — 1 governs motions for new trial which is not applicable to defendant’s legal posture and sec. 116 — 2 deals with motions in arrest of judgment but the grounds upon which such a motion will lie do not encompass a plea in bar. Defendant’s motion in bar effectively presented to the trial court the issue as to whether or not defendant’s prosecution was barred and we hold that the order denying the relief sought was a final and appealable order.

The sole issue posed by these appeals is whether prosecution under the two counts of the indictment was barred by immunity granted by the statute.

The Fifth Amendment to the Federal Constitution and sec. 10 of article I of the 1970 Constitution of the State of Illinois secures to the individual the right against self-incrimination. This right or privilege sometimes conflicts with the public interest in securing testimony incriminatory to the witness, and the Congress and State legislatures have resolved the conflict by enacting statutes which compel the incriminating testimony but prohibiting its use in subsequent prosecution of the witness. The scope of the immunity granted in the various legislative enactments varies. Some grant “transactional immunity” which is complete and prevents prosecution based on any matter about which the witness testifies. Others grant “use immunity” under which only the testimony of the witness is prohibited to be subsequently used against him, and a third formula is denoted as “use and fruits immunity”. Under this latter formula the witness may be prosecuted but his own testimony or any of the ‘leads” developed from his testimony may not be used against him.

We see no point in lengthening this opinion by tracing the legislative history of these several types of immunity statutes nor do we perceive any reason to discuss at length the interpretations and reactions of the courts to the various types of statutes. Reviews of the problem generally begin with Counselman v. Hitchcock, 142 U.S. 547 and currently end with Kastigar v. United States (U.S.), 32 L.Ed.2d 212, 92 S.Ct. 1653. For a general discussion of the history of the several types of immunity statutes see Vol. 67, No. 1, p. 106 Northwestern University Law Review.

The statute here in question, in our view, grants transactional immunity. The language is clear, unequivocal and submits of no other interpretation “The answer * * * shall not be used against him in any criminal proceedings nor shall he he prosecuted 9 9 9 on account of any transaction, matter or thing disclosed by him in such answer responsive to the interrogatories.” Language identical to the Illinois statute was interpreted by the Supreme Court of the United States in Brown v. Walker, 161 U.S. 591. There the Act of Congress granted immunity to the witness “* * * on account of any transaction, matter or thing, concerning which he may testify # * *.” The Court held that the words “transaction, matter or thing” bestowed transactional immunity, i.e. a complete and absolute immunization from subsequent prosecution.

“The transaction, matter or thing” concerning which defendant was queried, and to which he responded, in the interrogatories, embraced the period of time covered by the indictments as well as the premises in question. The answers to the interrogatories were sufficiently responsive to fall within the statutory grant, and they were clearly incriminating. Among other things the defendant revealed the name of an individual who subsequently became one of the State’s leading witnesses.

The People argue that defendant should have “claimed his privilege” and that failure to do so constituted a waiver of the statutory immunity. The statute is self-executing. That defendant be required to claim the immunity so clearly and unequivocably bestowed is to imply a choice not present. The provisions of the statute command defendant to answer, and provides harsh and compelling sanctions attendant upon non-compliance. There can be no waiver when the defendant does not have the right to refuse; under this circumstance there is no election as to whether he will or will not testify. His only choice is to answer or suffer the sanctions authorized by the statute. For these reasons we see no merit in the Peoples’ argument on this point.

Accordingly the judgment of the trial court dismissing Count I of the indictment in case number 144-71 is affirmed and the judgment entered as to Count II is reversed. The judgment entered in case number 148-71 is reversed.

Affirmed in part, reversed in part.

SMITH, P. J., and TRAPP, J., concur.


author: Mr. JUSTICE GEORGE J. MORAN Mr. PRESIDING JUSTICE EBERSPACHER

text:
    Ray Carruthers, Plaintiff-Appellant, v. B. C. Christopher & Company et al., Defendants-Appellees.
    (No. 71-335;
    Fifth District —
    July 20, 1973.

      EBERSPACHER, P. J., dissenting.
    Hanagan, Dousman & Giamanco, of Mt. Vernon, and Burnside, Dees and Johnston, of Vandalia, for appellant.
    John E. Jacobsen and Terry Black, both of Craig & Craig, of Mt. Vernon, for appellees.
   Mr. JUSTICE GEORGE J. MORAN

delivered the opinion of the court:

Plaintiff appeals from a judgment of the Circuit Court of Fayette County granting defendants’ motion for summary judgment in a suit brought by plaintiff pursuant to the Illinois Structural Work Act (Ill. Rev. Stat, ch. 48, par. 60 — 69).

Plaintiff’s complaint alleged that the defendants B. C. Christopher & Company and John Shanks, as its resident manager, were in charge and control of certain structures known as grain elevator and grain bins and in charge of certain alterations and repairs thereon when plaintiff was injured while working on an unsafe support or other mechanical contrivance furnished by the defendant in the performance of the work.

Plaintiff Carruthers was an employee of Okaw Valley Construction Company, hereinafter Okaw Valley. Defendant B. C. Christopher & Company, hereinafter Christopher Company, ran a grain elevator business at Vandalia, Illinois and at other locations, with defendant John Shanks as its managing agent at Vandalia. Manager Shanks determined that several cylindrical grain chutes, commonly called “spouts” or “spouting”, were worn at the bottom and leaking grain. Testimony by Shanks indicates that the practice of Christopher Company and the bin business was to turn these spouts approximately 180 degrees every two or three years, prolonging the use of the spouting and preventing grain from falling or leaking out of the worn spouts. He estimated that a 30-foot length of spout would weigh 300 or 400 pounds, and testified that turning the spouts was a two-man operation.

The turning process required the two men to work at or near the tops of the elevator or bin structures. The spouting runs from the elevator down to the various bins. At the top of the elevator, the spout is attached to a structure called a “leg”. There is a railing approximately three feet high at the top of the leg where the worker must stand to turn the spout. Compton was working at the high end of the spout, standing at the leg with the protective railing. The bottom end of the spout, where plaintiff Camithers was working, is attached to the top of the bins at their caps. The spout is fastened to the cap, and the cap in turn is screwed or locked to the bin. In order to turn the spout, it is necessary to unfasten the cap. The cap is about three feet in diameter. There is no guard or raHing around the cap, although the worker must stand there in order to turn the spout. Nothing in the briefs or abstracts indicated why there was no railing on the caps, or whether workers stood on the caps for any purpose other than turning the spouts, nor does the record indicate why railing is put on the leg, or for what other purposes workers would stand on the leg. Plaintiff was standing on the cap which was unscrewed or unfastened from the bin, and which had no railing. From this position, plaintiff fell approximately 37 feet to the ground, sustaining injuries.

Defendants made a motion for summary judgment (with attached discovery depositions and an affidavit) for the reasons, inter alia:

“2. The defendants were not the owners of the premises where plaintiff fell; defendant B. C. Christopher and Company was lessee of the premises and John Shanks was its employee.
3. Neither B. C. Christopher and Company nor its employee John Shanks nor any other employee exercised any supervision over the work being done at the time of the occurrence, gave no directions concerning the manner of doing the work, furnished no equipment in connection with the performance of the work but simply contracted with Okaw Valley Construction Company for it to perform the work of turning the elevator spouts. The plaintiff and one Kenneth Compton were employees of Okaw Valley Construction Company and said employees and their employer furnished equipment used in performing said work.
4. Okaw Valley Construction Company and its foreman Kenneth Compton were the persons in charge of the work and they are the persons who directed the work, supervised the work and performed the work.

Plaintiff Carruthers testified on his deposition that he was a construction laborer working for the Okaw VaHey Construction Company on April 29, 1969. He reported for work that morning and was sent over to the B. C. Christopher elevator to help Kenny Compton turn some spouts. He went there in his car and Compton went in his truck. Some of the tools were furnished by him, some by Compton and some by Okaw. When they gót to the Christopher Company they both went into the office where they saw Christopher’s manager, Johnnie Shanks, who asked them if they were there to fix the spouts. Kenny then said, “Well, we just as well get at it,” and they both went outside. He further testified that neither Shanks nor anyone from Christopher gave them any directions on how to do the work. When asked if there was any kind of scaffolding that might have prevented his accident, he stated:

“Yes, sir. In this picture and on the bins at Brownstown you notice that there is an angle iron brace on this with a cradle above the first flange — same way on this one. This supports the extra weight in case the bolts shear off. And I would say if this bin would have had this angle iron brace here that this bolt would not have sheared off and this bolt would not have, and it wouldn’t have had enough weight to pull this boot out of the bin.”

Compton testified that he worked for Okaw Valley as a carpenter on the day of the accident and that LeRoy Taylor, who ran that company, sent him and Carruthers to Christopher’s to turn some spouts on that day. He took some of Okaw’s equipment along and some of his own. Nobody told him or Carruthers how to do the work. When asked if there could have been a scaffolding furnished for the place where plaintiff was working, he stated:

“There could have been a scaffolding built but it would have been an expensive and quite lengthy process to have built it. Which, as I see now, would have been the best deal, maybe, to have done.”

With reference to his conversation with Shanks concerning the agreement to do the work, his testimony was as follows:

“Q. Tell me when the conversation first started about turning the spouts. Tell me the time before April 29, 1969, the conversation was held.
A. Well, he wanted to know if I could do it and I said that I could.
Q. What did he ask you, Kenny, what did he ask you — generally, the words.
A. Oh, I would say that he asked me if I wanted to or if I would, probably, turn those spouts. We had talked over several different things that needed to be done.
Q. Was he going to engage you as an individual or on behalf of Okaw Valley?
A. Well, it started out he was going to engage me as an individual. And then, I don’t remember whether I said at that time I would rather do it under Okaw Valley or whether I talked to LeRoy first. But I know that LeRoy — we discussed that we better do it under Okaw Valley Construction.
Q. And did John realize this would be a two man job — that you wouldn’t do it yourself?
A. Oh, yes, I think so.
Q. Did you separate in the bill — or did LeRoy — so much for what would, labor, material and so much for turning spouts, or would it be lumped together?
A. I expect, as far as me turning in anything to LeRoy, I just turned in time and material used. And — I don’t know. I expect it was stated on the invoice how much time there was in turning the spouts and replacing the spout here.
Q. You stated that two spouts you turned and some additional spouts you repaired?
A. Yes. And unloading out of the main elevator leg — out of the main leg below the bins, the unloading legs out of the bins, there to the pit, we had to replace about a twelve inch pipe underneath that had rusted out.
Q. You mentioned instead of turning all the spouts you repaired some, is that correct?
Mr. Jacobson: Just a minute. I think his testimony is clear. He said he replaced a twelve inch pipe underneath. He has never said he repaired any spouts that led from the elevator leg to bins.
Mr. Dousman: He testified he did not complete the turning of all the spouts, the job was halted and he repaired remaining spouts — .
Deponent: That wasn’t clarified. I did all this other repair work on my own. As far as Okaw Valley — I’ll clarify that for you. As far as Okaw Valley is concerned, we replaced the pipe that fell and we repaired the main pipe underneath the bins there down in the pit. And after that at different intervals Johnnie would call me, and I repaired the pipe on my own. This is on my own time.”

Shanks testified that he was employed as local manager for B. C. Christopher Company on April 29, 1969. With reference to the agreement of April 29, 1969, he stated:

“Okay. Kenny Compton came in — I can’t give you the dates, but Compton came in and he was talking — he does business with me, Kenny does. He came in, I would say, two or three days before and was talking about they didn’t have much to do; he thought he was going to get laid off. I says, okay, when you guys get a little time I’ve got spouting to turn here.’ And I told him
I had spouting to turn and when they had a few days they could come and start turning spouting.”

Compton was in buying feed from Christopher at the time he first talked to Compton about the work. He stated that Compton owed him money and he first thought that Compton could go ahead and work directly for him, but a day or two later Compton came back in and said that Taylor wanted him to work for Okaw Valley because of union dues, insurance, etc. He testified that he never agreed on a price with Compton or Okaw Valley. Okaw just sent him a bill and he paid it.

Section 69 of the Structural Work Act places liability for violation of the Act upon "any owner, contractor, subcontractor, foreman or other person having charge of the erection, construction, repairing, alteration * * * of any building, bridge, viaduct or other structure within the provisions of this Act * * *.”

Violations of the Act can only be committed by persons directly connected with the operation and not by virtue of mere ownership of the premises. (Gannon v. C., M., St. P. & P. Ry. Co., 22 Ill.2d 305.) However, neither the exercise of supervision and control nor the retention of the right to do so are essential ingredients for having charge. (Larson v. Commonwealth Edison, 33 Ill.2d 316.) Direct connections with the operations over and above mere ownership is necessary for an owner to be liable under the Act and the question whether the particular connections and activities in a given case are such that an owner may be deemed to be in charge is a question of fact, for a jury to decide. (Gannon and Larson.) Whether or not a person is in charge of work has been described as the “ultimate factual question” in cases arising under the Structural Work Act. (Isabelli v. Cowles Chemical Co., 7 Ill.App.3d 888, 289 N.E. 2d 12, and cases cited therein.) The right to stop the work has large significance in determining whether an owner is in charge of the work within the meaning of the Act. (Miller v. DeWitt, 37 Ill.2d 273, 226 N.E.2d 630; Isabelli v. Cowles Chemical Co.) A permanent part of a structure may itself constitute a “scaffold” within the contemplation of the statute. Louis v. Barenfanger, 39 Ill.2d 445, 236 N.E.2d 724; Halberstadt v. Harris Trust & Savings Bank, 7 Ill.App.3d 991, 289 N.E.2d 90.

In our opinion the jury could reasonably have found that under the arrangements entered into between the parties that defendants had sufficient connection with the operation of the work to make them persons in charge within the meaning of the Structural Work Act. Shanks and Compton were the only witnesses who testified concerning the arrangements for the work. Shanks stated that Compton owed Christopher money and that it was first agreed that Compton would do the work of turning the spouts himself. However, Compton came back and said that his boss wanted him to do the work through Okaw Valley. Compton said it first started out that Shanks was going to engage him as an individual, then it was decided to do it under Okaw Valley. He turned a bill in for time and material and did other repair work agreed upon between him and Shanks on his own. From the foregoing there is no showing that defendant owner did not retain the right to control the work.

The jury could also have found that the defendants are persons in charge because they had a right to stop the work if it were being done in a dangerous manner. Although the record in this case makes no mention of any right to stop the work by the defendants, the jury could have found that there was such a right if the work was being done in a dangerous manner. There is no question but that defendants had full and complete control of the premises at all times. Had Shanks observed Carruthers and Compton working in such a manner as to endanger the property of Christopher or the employees of Christopher, it could hardly be contended that Shanks as general manager could not stop the work or even order them off the premises if he so desired.

The jury could also have found that it was implicit in the agreement that the permanent parts of the building were to be furnished by Christopher to be used as scaffolds or supports in performing the work. Compton testified that there could have been scaffolding built, but it would have been expensive and quite lengthy to build it. So it was at least the understanding of one of the parties to the agreement that permanent parts of tire building were to be used as scaffolds and supports in doing the work. Since the jury could find that it was within the contemplation of the parties that permanent parts of the structure were to be used as supports or scaffolds in doing the work and that the defendants were to furnish them, it could have found that the defendants had sufficient connection with the operation to be in charge within the meaning of the Structural Work Act.

In Harp v. Gulf, Mobile ir Ohio R. Co., 66 Ill.App.2d 33, this court said at page 38:

“The purpose of summary judgment proceedings is to determine whether there is any genuine triable issue of fact which must be passed upon. [Citation.] If the pleadings, discovery depositions and exhibits, present a genuine issue as to any material fact, summary judgment should not be granted. [Citation.] The right of the moving party to summary judgment must be free from doubt. [Citation.] The affidavits filed in support of a motion for summary judgment will be strictly construed and must leave no question of the movant’s right to judgment, but the affidavits filed in opposition thereto will be liberally construed. [Citation.]”

For the foregoing reasons the judgment entered by the trial court in favor of the defendants is reversed and this case is remanded to the Circuit Court of Fayette County for trial on the merits.

Judgment reversed and cause remanded with directions.

CREES, J., concurs.

Mr. PRESIDING JUSTICE EBERSPACHER

dissenting:

The issue on appeal here is whether or not the trial court was correct in granting the motion for summary judgment. The motion was supported by the affidavit of the defendant John Shanks and the depositions of Shanks, Compton and plaintiff. No counter-affidavit was filed by plaintiff. The effect of the failure to file a counter-affidavit was to admit the facts as presented by the affidavit and depositions. In Walsh v. Monumental Life Insurance Co., 46 Ill.App.2d 431, 435, 197 N.E.2d 124, 126, the court pointed out:

“It is true, as contended by defendants, that where facts in support of a motion for summary judgment are set forth in an affidavit presented by the movant, the opposing party cannot rely solely on his complaint to rebut it, even though the complaint and answer taken alone do present a genuine issue of material facts.”

The same court in reaching a similar conclusion in Kapka v. Urbaszewski, 47 Ill.App.2d 321, 326, 198 N.E.2d 569, 572 said, “Raising an issue in the pleadings does not preclude summary judgment”.

I see no significance in the conversation between Compton and Shanks which is quoted at length in the opinion, nor the quoted testimony of Shanks. Those conversations did not result in a contract under which the work was done nor do they reflect any control of the work which was done by plaintiff as an employee of Okaw Valley Construction Company, with whom the contract to do the work was ultimately made. Despite the conversation between Compton and Shanks, and that on occasion Compton was employed by defendant to do similar- work, the work being done at the time plaintiff was injured was being done by plaintiff and Compton as employees of Okaw.

The matters before the court negate tire theory that defendant was in charge of the work, and consist of an affirmative showing of a total absence of intervention, control or supervision as demonstrated by the deposition of Compton^ the foreman of plaintiff:

“Q. Nobody with Christopher told you or Carruthers how to do tins work you were doing?
A. No. As far as I know, it was entirely up to us to do it the way we felt it should be done. The only thing was we was to turn the pipe.”

Further the deposition of plaintiff also expressly shows that defendants were not in charge of the work which plaintiff was doing.

“Q. Did John Shanks or anybody with B. C. Christopher and Company give you any directions on how to do this work?
A. No.”

This evidence is controverted only by the unverified general allegation of the complaint. No facts are shown in either the complaint, depositions or affidavit indicating any charge or control of this particular operation by the defendant. See Van Dekerhov v. City of Herrin, 51 Ill.2d 374, 282 N.E.2d 723. In Kaminski v. Missionary Sisters of the Sacred Heart, 62 Ill.App.2d 216, 210 N.E.2d 794, the court considered a complaint which alleged that the defendant “was in charge of the work” and examined the pleadings, depositions and affidavits in determining the propriety of a summary judgment. It said at page 796 of 210 N.E.2d:

“The naked charge that Corbetta was ‘in charge of the work’ and that the scaffold was inadequate without any facts to support it, is, in our opinion, a conclusion of the pleader, which must be disregarded in considering the motion for summary judgment. See Supreme Court Rule 15 (Illinois Revised Statute 1963, Chapter 110, Section 101.15) which provides that affidavits in support of or in opposition to a motion for summary judgment ‘shall not consist of conclusions but of facts admissible in evidence.’”

A summary judgment was also sustained in Melvin v. Thompson, 39 Ill. App.2d 413, 188 N.E.2d 497, where the mere allegation that defendants were in charge of the work was likewise unsupported by any facts.

The majority, without citing any authority concludes that the jury could have found that “defendants are persons in charge because they had a right to stop the work if it were being done in a dangerous manner”. There is nothing in the record to indicate that defendant retained that right. But, even assuming that an owner was humane enough to' stop the work if he determined the manner in which it was being done placed those doing it in a needless jeopardy, or practical enough to stop the work in the manner in which it was being done because it created an unnecessary hazard to property, such acts would not be the exercise of such control as would place him in charge of the work under the statute under the holdings in Melvin v. Thompson, supra, and Loveless v. American Telephone and Telegraph Co., 40 Ill.App.2d 347, 189 N.E.2d 679.

In the former case the defendant contracted with the plaintiff’s employer for the repainting of certain signs on a building owned by defendant. Plaintiff was sent by his employer to perform such work and was injured when he fell off a scaffold. There was evidence from the pleadings, depositions and affidavits, that the defendant had instructed plaintiff that he was dissatisfied with a prior painting job and intended to “watch this job extra carefully” (188 N.E.2d at page 499). Further there was evidence that defendant had instructed plaintiff that he would stop the work as it progressed and would make no payment unless done to. his satisfaction. Defendant instructed plaintiff, in great detail, as to the type of paint to be used, the time work was to be commenced and furnished the plaintiff with a ladder to gain access to the scaffolding. It also appeared that the defendant had inspected the paint which was used and had inspected the scaffolding rope itself, and had stated that it looked all right. The defendant had examined the work in progress and pointed to deficiencies. Still, when the plaintiff sought to impose liability on the owner contracting party, on the basis of the Structural Work Act, a summary judgment in favor of the defendant was entered and affirmed on appeal. The court said at page 500 of 188 N.E.2d:

“At most the activities of defendant Thompson can be considered as an effort to require compliance with the contract and to insure that the quality of work done was as agreed; he inspected the painting as it progressed and threatened to terminate the work if the job was not being done satisfactorily. In doing so he could not be considered by reasonable men to have been ‘in charge’ of the work, as required for owner-liability under the terms of the Scaffold Act. We, therefore, conclude that, taken in the aspect most favorable to the plaintiff, the pleadings, depositions, and counter-affidavit do not raise a genuine factual issue with respect to control by defendants of the painting operations. It follows that summary judgment for defendants was proper.”

In Loveless v. American Telephone and Telegraph Co., 40 Ill.App.2d 347, 189 N.E.2d 679, there was also an attempt to impose liability under the Act on the owner of the building on the theory that he was in charge of the work. There was evidence that the defendant’s inspector or engineer could, if he observed a violation of statutory requirements, have terminated the job until such statutory requirements were complied with. Also it appeared that the owner’s representative had authority to discuss any violation with the superintendent of the contractor. The court held at page 681 of 189 N.E.2d that the defendant was not “in charge” of the work.

“In this case there is no evidence of any kind that the American Telephone and Telegraph Company at any time had charge of the construction involving the violation of the Scaffold Act. The mere fact that the defendant might, through notice or otherwise, call attention to and correct a violation of the law, does not of itself, involve any degree of control or supervision. Considering the evidence in its most favorable light, giving the plaintiff the benefit of its most reasonable intendments, there is a total lack of evidence that the defendant owner had charge or supervision of the work involving violation of the Act.”

The court thereafter affirmed a judgment notwithstanding the verdict in favor of the defendant.

The majority also concludes without citing authority that “since the jury could find that it was within the contemplation of the parties that permanent parts of the structure were to be used as supports or scaffolds in doing the work and that the defendants were to furnish them it could have found that the defendants had sufficient connection with the operation to be in charge within the meaning of the Structural Work Act”. The record does not show what defendants contemplated with reference to the manner in which Okaw’s employees would do the work or what precautionary measures would be taken by either the workmen or their employer. But even assuming that defendants contemplated that plaintiff would stand upon the structure to do the work, ownership of the scaffold itself and being in charge of it is insufficient in law to constitute “having charge of the work so as to impose liability on the owner under the statute. In Kobus v. Formfit Co., 35 Ill.2d 533, 537, 221 N.E.2d 633, 635, the court said:

“The Scaffold Act is a statutory enactment to protect those engaged in extra hazardous work, and recognizes a duty upon certain categories of individuals to use certain specified safeguards and standards of safety in the erection of structures where such work employs the use of scaffolds. It does not place a duty, and therefore a corresponding liability for its violation, merely upon the ownership of the premises upon which such construction is being undertaken. It places that duty among others upon an owner, ‘having charge of such construction of a building * * We did not there define what specific acts or factors would satisfy this statutory requirement, but we did hold that the mere fact of ownership of the premises was insufficient for liability.”

The involved principal is more clearly stated in Bruen v. Burton Auto Spring Corp., 130 Ill.App.2d 477, 481, 266 N.E.2d 177, 178:

“It is now settled that liability under the Structural Work Act cannot rest alone on the erection, control, or ownership of what causes the injury. See Gannon v. Chicago, M. St. P. & P. Ry. Co., supra; Larson v. Commonwealth Edison Co., 33 Ill.2d 316, 211 N.E.2d 247; Reed v. Johnson, 55 Ill.App.2d 67, 74, 204 N.E.2d 136. For example, without proof that the person sought to be held liable was in charge of the work, ownership of planks that go to make a scaffold does not determine HabEity under the Act. Schaffer v. Veach, 61 Ill.App.2d 168, 209 N.E.2d 373.
Our study of the cases, particularly those cited by plaintiff leads us to conclude that in determining defendant’s liabffity, it is irrelevant who had charge of the scaffold, unless this fact is related to having charge of the work. In Vykruta v. Thomas Hoist Co., Inc., 75 Ill.App.2d 291, 221 N.E.2d 99, we held that one who furnishes equipment is not put in charge of the construction or of that part of the construction in which the equipment is used. ‘[M]ere renting of the equipment and the repositioning and repairing of equipment which has ceased functioning are not enough. In both instances there must be something more; the owner or the supplier must be directly connected with the operation.’ 75 Ill.App.2d 291 at 303, 221 N.E.2d 99 at 105.”

The principal is recognized in Isabella v. Cowles Chemical Co., which the majority cites, wherein the court quoted the language of Bruen at 289 N.E.2d 17, “* * * liabffity under the Structural Work Act cannot rest alone on the erection, control or ownership of what causes the injury”. Furthermore, the fact that the defendants herein contracted for the performance of the work is not only not controlling, but not in the least respect influential, since in every case involving the Structural Work Act, someone has contracted for the performance of the services. This fact alone is not persuasive in determining if the contracting party “has charge of” the work. It is required that the contracting party and the owner of the premises have a direct connection with the repair operations themselves. As stated by the Illinois Supreme Court in Larson v. Commonwealth Edison Co., 33 IE.2d 316, 211 N.E.2d 247, at page 252:

“It may be conceded that Sargent, like an owner, must have some direct connection with the construction and alteration operations before it can be deemed to be in charge of the work, and thus subject to duty and liability under the Act.”

Since the facts shown in defendant’s affidavit are admitted, since no genuine issue of fact was shown in the depositions and since the complaint is insufficient in itself to raise such an issue in a summary judgment proceeding, the trial court was correct in entering a summary judgment, and I would affirm.


author: Mr. PRESIDING JUSTICE EBERSPACHER

text:
    Alice Fay Schaperkoetter, Defendant-Appellant, v. Dale William Schaperkoetter, Plaintiff-Appellee.
    (No. 72-303;
    Fifth District —
    July 20, 1973.
    Sprague, Sprague & Ysursa, of Belleville, for appellant.
    Hillebrand and Cook, of East St. Louis, (Bruce N. Cook, of counsel,) for appellee.
   Mr. PRESIDING JUSTICE EBERSPACHER

delivered the opinion of the court:

This is an appeal by the defendant Alice Fay Schaperkoetter from the judgment of the Circuit Court of St. Clair County relating to child support payments and property settlement. There is but one issue present for review: Whether the judgment of the trial court was contrary to the manifest weight of the evidence and as a consequence thereof contrary to the law?

Dale William Schaperkoetter, the plaintiff, was married to Alice Fay Schaperkoetter on October 26, 1968. On October 22, 1970, the plaintiff filed a complaint for divorce. The defendant, Alice Fay Schaperkoetter, on November 20, 1970, filed her answer and counterclaim. The parties agreed by stipulation that the court would hear evidence only as to the grounds for divorce on the defendant’s counterclaim. The plaintiff’s motion to dismiss his complaint was granted.

The parties further stipulated that the defendant would be awarded the custody of the parties’ one minor child. On May 16, 1972, the court granted the “Plaintiff counterdefendant” wife a decree of divorce on the grounds of extreme and repeated mental cruelty. The court retained jurisdiction to hear further evidence as to visitation, child support and property distribution.

The matter was again taken up on May 18, 1972, when evidence was heard relating to the matters of visitation rights, child support and property distribution. The evidence showed that the defendant was working prior to her marriage to the plaintiff but quit shortly before the marriage; that shortly after they were married the parties purchased a home with a down payment of $5000 of which the defendant contributed not quite one half.

The defendant has another child by a previous marriage and this child also resided with the parties.

The plaintiff is regularly employed as a diesel mechanic by P. I. E. Transport and his gross earnings for year 1969 as reported on his Income Tax Return were $10,676.34, and the defendant testified that the plaintiff received cash monies for working for others outside of his regular employment. The defendant earned about $350 per month when she was working prior to her marriage to the plaintiff. The defendant has not been receiving any support payments from her first husband although he has been ordered by the court to pay an amount of $80.00 per month.

The defendant has, during the period of separation from the plaintiff, been receiving assistance from the Illinois Department of Public Aid.

The evidence further showed that the parties’ minor child was in poor health and had been under the care of a pediatrician and psychologist. The child has been hospitalized for various maladies.

At the conclusion of the evidence the court entered its decree ordering, among other things, the plaintiff to pay the sum of $35 per week for child support, that the family residence be sold and the equity therein be equally divided between the parties and that the plaintiff provide and maintain health insurance for the minor child during her minority. Provisions were also included for extensive visitation by the plaintiff.

We have examined the record and do not find an abuse of discretion. The parties had been married but two years at the time of their separation. The wife while contending that she provided almost one half of the down payment for the house, also purchased with her monies, furnishings which she has been allowed to retain. It appears that the parties jointly contributed approximately $5700 towards the house and furnishings, of which the wife contributed $2481.

With regard to both actual and expected medical expenses of the child, the court has ordered that the plaintiff provide the child with medical insurance.

The sum of $35 a week is approximately %6th of the plaintiff’s gross income before taxes and not so manifestly unfair or unjust as to be disturbed by this Court. (Miezio v. Miezio, 6 Ill.2d 469, 129 N.E.2d 20.) This Court will not substitute its judgment for that of the trial court, which heai'd the evidence and observed the parties and is presumed to be correct unless the trial court’s findings are clearly and manifestly against the weight of the evidence. (Olson v. Olson, 66 Ill.App.2d 227, 213 N.E.2d 95.) “From a careful review of the evidence, we are of the opinion that the trial court was within its discretion in fixing the amount of * # # child support that it did.” Everett v. Everett, 25 Ill.2d 342, 185 N.E.2d 201 at p. 203.

The judgment of the trial court is affirmed.

CREES and JONES, JJ., concur.


text:
    Alice Mezo et al., Plaintiffs-Appellees, v. Owen L. Smith et al., Defendants-Appellants.
    (No. 72-306;
    Fifth District —
    July 20, 1973.
    Feirich & Lockwood, Chartered, of Carbondale, for appellants.
    Leonard J. Dunn and Sam C. Mitchell, both of West Frankfort, for appellees.
   Mr. PRESIDING JUSTICE EBERSPACHER

delivered the opinion of the court:

This is an appeal from the Circuit Court, First Judicial Circuit, Williamson County, Illinois. It appears from the record that the plaintiff, Darlene Barnes Robinson, was driving an automobile in which the plaintiff, Alice Mezo, was riding in the right front seat, holding the plaintiff, Eunice Lorraine Barnes, then an infant of fourteen months. The Robinson automobile struck the truck driven by the defendant, Owen L. Smith, and owned by the corporate defendant, Standard Oil Company. The truck was turning into a private drive at the time of the collision. The issue of liability was decided by the jury against the defendants, and verdicts were returned in favor of the plaintiffs and against the defendants in the total amount of $130,000.

The defendants have brought this appeal presenting two issues for review. First, did the trial court abuse its discretion in ordering over objection of both the plaintiffs and the defendants that the cause be tried by a jury of six, and refusing to grant the parties’ request for a jury of twelve? Second, were the damages awarded by the jury excessive?

This action was commenced by the plaintiff, Mezo, filing her complaint against the defendant, Smith, claiming damages in the amount of $50,000. The plaintiff demanded trial by jury. A subsequent amended complaint added Standard Oil Company as a party defendant and likewise demanded a trial by jury. A second case by the plaintiffs, Robinson and Barnes, a minor by next friend, against the defendants, Smith and Standard Oil Company, which involved the same transaction was filed some nineteen months later. This complaint was in six counts, each count claiming damages exceeding $10,000, and contained a demand for jury. The defendants filed their answer to the complaint and counterclaimed against the plaintiff, Robinson. The counterclaim was in two counts, the first count seeking damages in the amount of $500, the second count seeking indemnity for any judgment entered against the defendants in favor of the plaintiffs, Mezo and Barnes. The defendants demanded trial by jury on the counterclaims.

The two cases were consolidated by order of the court.

The issues were tried to a jury of twelve on April 1, 1971, and resulted in a mistrial.

The case was again called for a trial on April 17, 1972, at which time the court informed the parties that it would be a trial to a jury of six and not twelve. Both parties objected and filed the following:

“Defendants:
JURY DEMAND
The Defendants do hereby (during the trial of this cause) repeat, renew and restate in writing then prior oral demand for trial by a jury of twelve (12) persons in this cause which prior oral demand was made immediately upon being advised by the Court of a possible requirement of submission to trial by a jury of six (6) persons.
The Defendants do hereby also repeat and renew their rejection of the proposed stipulation for a trial with a jury of less than twelve (12) persons.”
Dated: April 18, 1972.
Plaintiffs:
OBJECTION AND DEMAND
“Now come the plaintiffs herein, by Leonard J. Dunn and Sam C. Mitchell, their attorneys, and repeat, renew and restate in writing then- prior stated objection, made prior to commencement of trial of this cause, to the requirement by the court of submission to trial by a jury of six persons. In support of said objection and demand for trial by a jury of twelve, plaintiffs state the following:
1. That, upon request by the court, the plaintiffs by their attorney, stated their willingness to stipulate to a trial by a jury of six persons.
2. That, upon refusal by the defense attorney to so stipulate, the plaintiffs, by their attorney, informed the court that in light of the said refusal to stipulate by the defense herein, plaintiffs herein must therefore join in the objection to the said requirement by the court of trial by a jury of six persons.
3. That, should the defense herein indicate willingness to so stipulate at this time, prior to the submission of this case to the said jury, plaintiffs hereby give notice that they at this time still stand ready to agree to submit said case to tire said jury of six persons.”

The Court subsequently on May 11, 1972, entered its memorandum on its ruling which stated:

“Plaintiff, Counter-Defendant, made a demand for Jury Trial.
Defendant, Counter-Plaintiff, made a demand for Jury Trial.
The Corut announced on trial date that a Jury of 6 would be selected and used. Defendant, Counter-Plaintiff, objected and leave was granted to file a written objection and brief. Plaintiff, Counter-Defendant, Robinson, Rames and Mezo, was willing to accept Jury of 6, but since Defendant, Counter-Plaintiff, Smith and Standard Oil, would not, then objection was also made on behalf of Plaintiff, Counter-Defendant.
It is the ruling of this Court that a demand for a Jury Trial leaves the option to the Court on the use of a six or 12 man jury, and that a jury demand once made is not subject to amendment, even though it may be withdrawn by the party demanding.”

The defendants did not waive a jury of twelve and were specifically allowed by the trial court to file written objection and brief.

The parties may be required to submit the issues to a jury of six if the claim is for less than $10,000, and neither has demanded a jury of twelve (Ill. Rev. Stat., chap. 110, sec. 64(2)), but that is not the issue before this court. The plaintiffs contend that the defendants’ jury demand in the counterclaim was for a jury of six because the amount in that controversy did not exceed $10,000 and the defendants did not demand a jury of twelve.

Ill. Rev. Stat., chap. 110, sec. 64(1) provides in part, “A plaintiff desirous of a trial by jury must file a demand therefor with the clerk at the time the action is commenced. A defendant desirous of a trial by jury must file a demand thereof not later than the filing of his answer. Otherwise, the party waives a jury # * #. If the plaintiff files a jury demand and thereafter waives a jury, any defendant * * * shall be granted a jury trial upon demand thereof — made promptly after being advised of the waiver * *

Implicitly, the defendants were entitled to expect a jury of twelve until sometime shortly before trial. Once discovering that they were to be forced to try their cause to a jury of less than twelve, they reacted in a manner consistent with a bona fide attempt to protect their statutory right to a twelve-person jury. They made oral demand and objection, which was followed without delay with written demand, after first obtaining leave of court to file the demand and brief. The plaintiffs were also aware of the possible ramifications, and while tacitly agreeing to a jury of less than twelve, they nevertheless felt compelled to make objection and demand, agreeing only to a waiver of the full twelve if agreement was obtained from the defendants. As plaintiffs’ counsel states in his brief, “they would object for the record.”

Thus, whether we assume that the plaintiffs waived their right to a jury which would then give the defendants an opportunity to make demand as provided in III. Rev. Stat., chap. 110, sec. 64(1), or we assume that the plaintiffs were only agreeing to a jury of less than twelve if the defendants also agreed, the defendants still have a right to insist upon a full jury of twelve in the defense of the plaintiffs’ complaint which sought damage exceeding $10,000. See, Anderson v. Industrial Molasses Corp., 11 Ill.App.2d 210, 136 N.E.2d 536.

This is a case of first impression in this jurisdiction, and we hold that tiie trial court abused its discretion in requiring the parties to submit their causes to a jury of less than twelve without their consent or waiver. Unless the cause of action falls within those cases which are not appropriate for jury, then until determined otherwise by the legislature the parties upon proper demand shall be entitled to a jury consisting of twelve persons, where the claim for damages exceeds $10,000.

Because of these holdings, the second point raised by the defendant will not be considered.

The judgment of the trial court is reversed and this cause remanded for a new trial.

JONES and CREES, JJ., concur.


text:
    Mildred Owens, Plaintiff-Appellant, v. Harold McTeer, Defendant-Appellee.
    (No. 70-50;
    Fifth District —
    July 24, 1973.
    Goldenhersh and Goldenhersh, of East St. Louis, (Michael A. Katz, of counsel,) for appellant.
    Oehmke, Dunham, Boman & Leskera, of East St. Louis, (Robert D. Francis, of counsel,) for appellee.
   Mr. PRESIDING JUSTICE EBERSPACHER

delivered the opinion of the court:

This is an appeal from an order of the Circuit Court of Madison County, wherein a complaint filed by plaintiff, Mildred Owens, the owner and operator of a liquor store, sought as a result of a suit filed under the Dram Shop Act (Ill. Rev. Stat. (1967), ch. 43, par. 135), to recover indemnity against defendant, Harold McTeer, was dismissed.

The only issue is whether one who is sued under the Illinois Dram Shop Act may bring an action for indemnity against an alleged intoxicated person for the acts of the aUeged intoxicated person which result in a suit against' the alleged tavern or liquor store owner.

The issue has been resolved by our Supreme Court in Wessel v. Carmi Elks Home, Inc., 54 Ill.2d 127, 295 N.E.2d 718, in which it was held that as a matter of law those who may incur liability under section 14 of article IV of the Liquor Control Act (Ill. Rev. Stat. (1971), ch. 43, par. 135) may not seek indemnity from one, who being in an intoxicated condition, committed a tortious act which gives rise to the dram shop action.

We therefore affirm.

G. MORAN and JONES, JJ., concur.