author: JUSTICE STOUDER

text:
    FRANK RYNDERS, Plaintiff, v. SANGAMO CONSTRUCTION COMPANY, Defendant and Third-Party Plaintiff-Appellant.—(JOHN MAURER, d/b/a John Maurer Painting and Decorating Company, Third-Party Defendant and Third-Party Plaintiff-Appellee and Cross-Appellant, v. CALHOUN COUNTY CONTRACTING CORP., Third-Party Defendant and Cross-Appellee.)
    Fourth District
    No. 17098
    Opinion filed February 4, 1982.
    Gary M. Peplow, of Heyl, Royster, Voelker & Allen, of Springfield, for appellant Sangamo Construction Company.
    Gillespie, Cadigan & Gillespie, of Springfield (Patrick J. Cadigan, of counsel), for appellee John Maurer.
    Heckenkamp and Simhauser, P. C., of Springfield (David L. Drake, of counsel), for cross-appellee Calhoun County Contracting Corp.
   JUSTICE STOUDER

delivered the opinion of the court:

Plaintiff Frank Rynders brought this action to recover damages for personal injuries allegedly occasioned by defendant Sangamo Construction Company’s (hereinafter Sangamo) violation of the Structural Work Act (Ill. Rev. Stat. 1979, ch. 48, par. 60 et seq.). Sangamo, a general contractor, filed a third-party action for indemnity against third-party defendant John Maurer, d/b/a John Maurer Painting and Decorating Company (hereinafter Maurer). Maurer, a subcontractor, in turn filed an action for indemnity against “third party” defendant Calhoun County Contracting Corporation (hereinafter Calhoun), another subcontractor. The cause proceeded to a jury trial in the circuit court of Sangamon County. At the close of the evidence, the court directed a.verdict in favor of Calhoun and against Maurer in the second “third party” action. The jury then returned verdicts in favor of plaintiff and against Sangamo in the original action, and in favor of Maurer and against Sangamo in the initial indemnity action. Sangamo and Maurer appeal their adverse verdicts.

The facts out of which this litigation arises are substantially uncontested. Sangamo contracted with the State of Illinois to construct a four-mile section of Interstate 55 in Macoupin County. Crossing the interstate was a highway overpass bridge, the concrete deck of which was the responsibility of Calhoun. In preparing to pour the deck, Calhoun constructed a false deck of 2-inch by 6-inch boards in the flanges of the bridge. These were covered with plywood which served to catch any concrete that spilled during the pouring. When the concrete work was completed, the false deck was removed.

Maurer had contracted with Sangamo to paint the bridge’s structural steel, and in October and November of 1975, his employees were painting its underside steel beams. In order to perform this work, Maurer had decided to erect wooden scaffolding consisting of 2 by 6’s, covered with plywood and spanning the steel. Plaintiff was employed by Maurer and had worked for several years as an industrial painter. He testified that no safety equipment was used during the construction of the scaffold. He further testified that he asked a Sangamo foreman for permission to use some boards for the construction of the scaffold and his brother, Walt Rynders, confirmed this. Maurer testified that he himself asked permission of a foreman named Earl. Calhoun employed a general foreman named Earl Concrite, but plaintiff testified he never observed anyone from Calhoun at the job site. Actual ownership of the boards was never established.

On November 11, 1975, after the painting was completed, plaintiff was dismantling the scaffold. Again no safety equipment was used. He had gotten onto the scaffold and was knocking the plywood flooring off the 2 by 6’s with a hammer. While standing on a plank and leaning over to hit another plank with his hammer, the plank on which he was standing broke, and plaintiff fell to the ground. The board which broke was unsuitable for use as a scaffold plank as it had an obvious knothole on one side.

We first consider Sangamo’s contention that the verdict denying it indemnity was contrary to the manifest weight of the evidence.

The Structural Work Act promotes safety in the construction industry by creating a cause of action for injuries brought about by violations of the Act. (Ill. Rev. Stat. 1979, ch. 48, par. 69.) Those in charge of the type of work covered by the Act are encouraged to eliminate hazardous conditions at job sites, as contributory negligence and assumption of risk are not defenses to such actions. (Przybylski v. Perkins & Will Architects, Inc. (1981), 95 Ill. App. 3d 620, 420 N.E.2d 524.) Though a violation of the Act is not based on negligence, Illinois courts apply the rule that a passively negligent tort-feasor can obtain indemnity from a joint tort-feasor who was actively negligent. (Przybylski v. Perkins & Will Architects, Inc.; Rome v. Commonwealth Edison Co. (1980), 81 Ill. App. 3d 776, 401 N.E.2d 1032, appeal denied (1980), 81 Ill. 2d 599; Mosley v. Northwestern Steel & Wire Co. (1979), 76 Ill. App. 3d 710, 394 N.E.2d 1230.) As stated in Rovekamp v. Central Construction Co. (1964), 45 Ill. App. 2d 441, 449, 195 N.E.2d 756, 759, quoted with approval in McInerney v. Hasbrook Construction Co. (1975), 62 Ill. 2d 93, 104, 338 N.E.2d 868, and Miller v. DeWitt (1967), 37 Ill. 2d 273, 291, 226 N.E.2d 630:

“Although the liability imposed by the Act does not rest upon negligence, there can be degrees of fault among those who, under the Act, are accountable to an injured plaintiff. Who is the more culpable, a party who supervises and coordinates the overall project, or a party who is responsible for the scaffolding and the particular work which produced the injury? Both are in charge of thé work * * *. Neither can escape liability to the plaintiff—thus the purpose of the Act is accomplished—but the lesser delinquent, if held accountable by the plaintiff, can transfer its statutory liability to the active delinquent, whose dereliction from duty brought about the plaintiff’s injury.”

It has been said that “the area of implied indemnity has been muddied up by confusing and misleading terminology, such as ‘active’ and ‘passive’ negligence” (Przybylski v. Perkins & Will Architects, Inc. (1981), 95 Ill. App. 3d 620, 623, 420 N.E.2d 524, 527), perhaps because determination of the difference “is not a matter of proceeding according to the usual dictionary definitions * * *. These words are terms of art and they must be applied in accordance with concepts worked out by courts of review upon a case by case basis.” (Moody v. Chicago Transit Authority (1974), 17 Ill. App. 3d 113, 117, 307 N.E.2d 789, 792-93.) While a discussion of the many cases relied on by the parties would result in an opinion of undue length, we find the principles of two to be particularly in point.

Jones v. McDougal-Hartmann Co. (1969), 115 Ill. App. 2d 403, 253 N.E.2d 581, appeal denied, involved a journeyman painter who was injured when he fell from an overpass over an interstate freeway while an employee of Robert Janssen, d/b/a R. J. Janssen Painting and Decorating Company. On the day of the accident, Jones met other crew members at Janssen’s home where scaffolds and other equipment, owned by Janssen, were loaded on Janssen’s truck. When the men arrived at the jobsite, their employer instructed them as to the work to be done and they began rigging cables for their scaffolds. No crew member was designated as foreman.

During the course of the morning, a McDougal-Hartmann truck came along the roadway under the bridge, stopped momentarily, and then proceeded on. No one left the truck or communicated with the painters. That afternoon Jones fell from a ladder and was permanently injured. A jury found in Jones’ favor in his action against McDougal-Hartmann, who filed a third-party action against Janssen. The jury returned a verdict in Janssen’s favor.

After citing Rovekamp v. Central Construction Co. (1964), 45 Ill. App. 2d 441, 195 N.E.2d 756, the court discussed Sack v. Arcole Midwest Corp. (1961), 33 Ill. App. 2d 344, 179 N.E.2d 441, appeal denied (1962), 23 Ill. 2d 623. In that case, the third-party defendant plumbing subcontractor owned, designed, and furnished a scaffold. The general contractor’s field superintendent had questioned the subcontractor’s foreman about the type of scaffold to-be used, was on the scaffold when it was first erected, and thought it was of good design and safe. An insecurely fastened hand rail proved to be the cause of Sack’s fall and serious injuries. The court concluded that the injuries resulted from an activity within the sole control and responsibility of the plumbing subcontractor and that, as a matter of law, it was actively negligent. Holding that the principle of Sack was applicable to the facts in Jones, the latter court reversed the jury verdict, explaining:

“A subcontractor is usually a specialist whose contract ordinarily provides for the accomplishment of a particular result, the means of accomplishing such result being the choice of the subcontractor. Further, the subcontractor ordinarily furnishes the equipment and personnel and such equipment and personnel are under the control, authority and direction of the subcontractor in the performance of the subcontract. With respect to the work the subcontractor has undertaken to perform, he does have a greater responsibility and duty with respect thereto than a contractor exercising general authority over the entire job. Consequently, when the basis of a claim for indemnity arises on account of injuries to third persons which are incident to the performance of a subcontract, and there is no participation by the general contractor in such performance, we believe the subcontractor’s conduct is the active wrongdoing thereby requiring indemnity.” Jones v. McDougal-Hartmann Co. (1969), 115 Ill. App. 2d 403, 407-08, 253 N.E.2d 581, 584.

In the case at bar, the determination of the type of scaffold to be used, the construction of that scaffold, the use of the scaffold, and the dismantling of the scaffold were all responsibilities undertaken by Maurer. The defective plank was selected by a Maurer employee. While safety lines and harnesses were available on Maurer’s truck, Maurer did not instruct his employees to use them as he did not feel there was much danger involved. The Sangamo superintendent did not directly supervise the painting, and when he passed the painters, he did not see whether or not they were wearing safety lines. Unlike the superintendent in Sack, he neither inspected nor stood on the scaffold. Under these circumstances, we find no participation by Sangamo in the performance of the subcontract. Therefore, under the rationale of Jones, we hold that Maurer was guilty of active fault as a matter of law, and the contrary jury verdict is not supported by the evidence.

We next consider Maurer’s contention that the directed verdict in favor of Calhoun was improper as not supported by the evidence. Maurer argues that Calhoun was best able to avoid plaintiff’s injury as it provided the plank with constructive knowledge of the defect.

The planks used for the scaffold came from a pile of lumber at the worksite near the bridge. While there was a conflict of testimony as to whether permission to use the planks was granted by Maurer or Sangamo, there was no evidence presented as to ownership of the lumber. The knothole which rendered the plank unsuitable for scaffolding was readily apparent to anyone who examined both sides of the board. Assuming, arguendo, that Calhoun did loan the lumber, no consideration passed between the parties and the bailment was gratuitous. This being the case, Calhoun’s only duty was to warn Maurer of known defects. (See 8 Am. Jur. 2d Bailments §162 (1980).) As no evidence that Calhoun was aware of the defect was presented by Máurer, the trial court properly directed the verdict in Calhoun’s favor.

Accordingly, the judgment of the circuit court of Sangamon County entered on the jury verdict in favor of Maurer is reversed and this cause is remanded with directions that judgment be entered in accord with the views expressed herein. The directed verdict in favor of Calhoun is affirmed.

Affirmed in part, reversed in part, and remanded with directions.

ALLOY and HEIPLE, JJ., concur.


source: Caselaw Access Project

author: JUSTICE NASH JUSTICE VAN DEUSEN,

license: Public Domain

text:
    GUST K. NEWBERG, INC., Plaintiff-Appellee and Cross-Appellant, v. THE ILLINOIS STATE TOLL HIGHWAY AUTHORITY, Defendant-Appellant and Cross-Appellee.
    Second District
    No. 81-140
    Opinion filed February 9, 1982.
    Rehearing denied March 12, 1982.
    Tyrone C. Fahner, Attorney General, of Chicago (Richard E. Friedman and Randall E. Server, Special Assistant Attorneys General, of counsel), for appellant.

      Edward M. White, of Carey, Filter and White, and Louis A. Lehr, Jr., of Arnstein, Gluck and Lehr, both of Chicago, for appellee.
   JUSTICE NASH

delivered the opinion of the court:

Defendant, the Illinois State Toll Highway Authority (the Authority), appeals from a judgment of the circuit court of Du Page County finding it liable to plaintiff, Gust K. Newberg, Inc. (Newberg), in the sum of $2,750,000 as damages for breach of a settlement agreement between the parties. The Authority contends the agreement was invalid and unenforceable because it was not approved by the Attorney General and, also, that the trial court improperly assessed damages. Newberg cross-appeals, contending it is entitled to prejudgment interest.

The underlying action was commenced in 1975 by Newberg and other parties against the Authority, alleging it had breached a contract between the parties for construction of a portion of the East-West Tollway for which plaintiffs sought damages of $9,000,000. Thereafter, at the direction of the Authority’s executive director, Richard Blakely, assistant Attorney General John Lavery, chief of the legal department of the Authority, entered into settlement negotiations with counsel for Newberg. In early July 1976 Newberg’s counsel informed Lavery it would accept $2,750,000 in settlement of the litigation and on July 12, Lavery advised then Attorney General William J. Scott of that offer by letter. He informed the Attorney General that the offer would be presented to a meeting of the board of directors of the Authority later in July and that if it decided to settle the litigation a resolution doing so would be adopted. On July 30, Lavery did present a formal resolution encompassing the terms of the settlement to the board of directors and advised it the litigation could thereby be resolved; the settlement resolution was unanimously adopted by the board.

On August 4, 1976, however, Attorney General Scott advised the board chairman by letter that the settlement was premature as discovery on behalf of the Authority had not yet been taken in the case and there were insufficient facts available to determine whether the settlement was reasonable. He also advised the chairman of the board that he believed Newberg’s claim was without merit. Again, on August 25, Attorney General Scott advised the board of directors by letters to each of its members that he disapproved of the settlement of the claims against the Authority made by it. He characterized them as questionable and noted the Authority had a substantial counterclaim to present. He also stated that there may be responsible third parties who would be required to contribute to any settlement of this matter. On October 1, the chairman of the Authority responded to the Attorney General that it would defer implementation of the resolution pending further advice from him, and in August 1977 the board of directors of the Authority, as then reconstituted, adopted a resolution rescinding the settlement.

When the Authority failed to carry out the terms of the settlement resolution Newberg amended its complaint to add a third count based upon the alleged breach of the settlement agreement. That count was dismissed by the trial court on motion of the Authority on the grounds, inter alia, it did not state a cause of action for failure to affirmatively allege the Attorney General had approved the settlement. At that stage the record did not disclose whether the Attorney General had approved or disapproved the settlement or suggest any basis for his disapproval of either the form of the resolution or the termination of the litigation by that means. The Authority’s motion to dismiss relied solely upon the failure of the complaint to allege that approval of the Attorney General had been given. Newberg appealed, and this court concluded that the powers of the Attorney General to examine and approve contracts of the Authority and to control its litigation were not absolute so as to require pleading his approval as a condition precedent which had been met for the complaint to be sufficient, and reversed its dismissal. On remand, the Authority and Attorney General were invited to assert by responsive pleadings any lawful basis which may exist which would prevent the settlement agreement from being carried out. Newberg-Krug-Brighton v. Illinois State Toll Highway Authority (1978), 63 Ill. App. 3d 780, 782-83, 380 N.E.2d 1029, 1031-32, appeal denied (1979), 72 Ill. 2d 583.

In the trial court the Authority then answered count III of Newberg’s complaint, denying it had authority to compromise the pending litigation or that the settlement resolution had been validly adopted by it. It also raised a number of affirmative defenses, including several directed to alleged form or constitutional infirmities in the resolution. Its response also alleged that the Attorney General had not approved the resolution as to its form and constitutionality nor had he approved settlement by this means of the pending litigation to which the Authority was a party. This action was then consolidated with a separate suit which had been brought by the Authority in 1978 against Newberg and other defendants in which liquidated damages were sought for their alleged failure to complete portions of the East-West Tollway extension in accordance with the contracts. The Authority there sought recovery of damages against both Newberg and the sureties under its performance bonds. Count III of the complaint, with which this appeal is concerned, was severed for trial.

After considering the evidence presented, the trial court made findings, inter alia, that the Authority and the Attorney General had failed to establish any defects in form or constitutionality which would prevent enforcement of the settlement resolution. It also determined that the affirmative defenses raised by the Authority were without support in the evidence. The trial court determined the settlement resolution was a binding contract of the Authority and awarded Newberg the sum therein agreed upon by the parties. It dismissed counts I and II of Newberg’s complaint but provided that they may be reinstated in the event of the reversal of the trial court’s judgment under count III.

The issue presented on this appeal, as framed by the Authority, is whether approval by the Attorney General is required for settlement of suits defended by the Attorney General involving state agencies?

The Authority does not now assert there were defects in the form of the settlement resolution adopted by its board of directors or that it is in some manner constitutionally infirm. The Authority argues, however, that the Attorney General had a reasonable basis for withholding approval of the settlement of the litigation he was conducting on its behalf and thus appropriately exercised his power to control the litigation of this State agency. Newberg contends that as the Authority is authorized by statute to contract and carry out its powers with reference to toll highways, it may do so without interference from the Attorney General in order to settle a dispute arising out of highway construction. It also contends the Attorney General did in fact approve the settlement resolution adopted by the Authority.

The Toll Highway Authority Act (Ill. Rev. Stat. 1979, ch. 121, pars. 100—1 et seq.) vests in the Authority, acting through its board of directors, all powers necessary to carry out the purposes of the Act. Section 8 expressly provides:

“The Authority shall have the power: « tt «
(b) To enter into all contracts and agreements necessary or incidental to the performance of its powers under this Act. * 0 (Ill. Rev. Stat. 1979, ch. 121, par. 100-8.)

Section 15 of the Act provides, however:

“The Attorney General of the State of Illinois, shall be ex officio attorney for the said Authority and he shall be its legal advisor and legal representative. In addition to the specific duties imposed upon the said Attorney General, under the provisions of this Act, it shall be his further duty to act as attorney for the Authority in all of its transactions, and to represent the Authority in all of its litigation, and to examine and approve all contracts, leases, bonds or other undertakings or obligations entered into by the Authority, as to their form and constitutionality prior to their execution and delivery.” (Ill. Rev. Stat. 1979, ch. 121( par. 100—15.)

See also Ill. Rev. Stat. 1979, ch. 121, pars. 100—8(b), (c).

It is well established that the Attorney General is the chief legal officer for the State and its departments and agencies. (Ill. Const. 1970, art. V, §15; People v. Massarella (1978), 72 Ill. 2d 531, 534, 382 N.E.2d 262, 264; Environmental Protection Agency v. Pollution Control Board (1977), 69 Ill. 2d 394, 398, 372 N.E.2d 50, 52.) His duties are as prescribed by law and also include those powers traditionally held by the Attorney General at common law. While the legislature may add to his powers, it cannot reduce the Attorney General’s common law authority in directing the legal affairs of the State. See People ex rel. Scott v. Briceland (1976), 65 Ill. 2d 485, 493, 359 N.E.2d 149, 153; People ex rel. Scott v. Illinois Racing Board (1973), 54 Ill. 2d 569, 575-76, 301 N.E.2d 285, 288; Stein v. Howlett (1972), 52 Ill. 2d 570, 585, 289 N.E.2d 409, 417; People v. Illinois Toll Highway Com. (1954), 3 Ill. 2d 218, 236, 120 N.E.2d 35, 45; Fergus v. Russel (1915), 270 Ill. 304, 339,110 N.E.2d 130, 144.

In the first appeal of this case we rejected the argument that the Attorney General’s statutory and constitutional duties in his representation of the Authority in its litigation and examination of its contracts were absolute so as to permit him to arbitrarily interfere with powers conferred upon that state agency by the legislature. (Newberg-Krug-Brighton v. Illinois State Toll Highway Authority (1978), 63 Ill. App. 3d 780, 782-83, 380 N.E.2d 1029, 1031-32, appeal denied (1979), 72 Ill. 2d 583.) On remand to the trial court, the Attorney General and the Authority did raise a broad spectrum of purported form or constitutional defects in the settlement resolution adopted by the Authority, each of which was found to be without support in the evidence at trial. Those arguments are not pursued by the Authority or the Attorney General on this appeal.

Other evidence presented at trial, however, does persuade us that the Attorney General had a valid basis on which to disapprove settlement of the litigation as then sought by the Authority. The resolution accepting Newberg’s offer of settlement was adopted by the board of directors of the Authority at its meeting held July 30,1976. The Attorney General had been advised just a feto days earlier by his legal staff assigned to the Authority that the offer was to be considered by it. Promptly thereafter, on August 4 and August 25, the Attorney General made known his objections to the board in which he noted that Newberg’s claims appeared to be without merit and the board’s settlement decision premature. The Attorney General advised the board his legal staff had not yet undertaken discovery so as to evaluate the case and that the Authority may have a counterclaim against Newberg and other claims against responsible third parties. The Attorney General advised the board there was no sufficient reason evident to support the proposed settlement and to do so would be a wrongful waste of public funds.

In our view, by his prompt objection setting forth eminently reasonable grounds to disapprove of the dismissal of the pending litigation as proposed by the Authority, the Attorney General acted well within the scope of his power to control its litigation in the public interest. Clearly, the Attorney General was not seeking to arbitrarily interfere with the power of the Authority to contract or otherwise carry out its statutory duties, but was reasonably carrying out his broader responsibilities in conducting the Authority’s legal affairs.

We conclude that in these circumstances the resolution by the Authority accepting Newberg’s offer of settlement, predicated on the dismissal of the pending litigation, was unenforceable absent approval of the Attorney General. Neither the Authority nor the parties who seek to contract with it may overlook the power and duty of the Attorney General to conduct the litigation of a state agency, and the settlement resolution of the Authority was insufficient to impose liability upon it. Compare Denton Enterprises, Inc. v. Illinois State Toll Highway Authority (1979), 77 Ill. App. 3d 495, 501-02, 396 N.E.2d 34, 39.

Newberg also contends that the Attorney General, through his assistants on the legal staff of the Authority, did in fact approve the settlement agreement. It notes that assistant Attorney General Lavery conducted the settlement negotiations and presented the resolution accepting Newberg’s offer to the board of directors. We do not agree. It is correct that the Attorney General may act through his assistants and deputies. (See Scott v. Association for Childbirth at Home, International (1980), 85 Ill. App. 3d 311, 315,407 N.E.2d 71, 74, aff'd in part, revd in part (1981), 88 Ill. 2d 279; Saxby v. Sonnemann (1925), 318 Ill. 600, 607, 149 N.E. 526, 529.) In this case, however, it is apparent Attorney General Scott promptly rejected the proposed settlement of the pending litigation after passage of the resolution, thus effectively negating any suggestion of approval inferred by the actions of his deputy. Either Newberg or the Authority could have ascertained the Attorney General’s position on this matter prior to consideration of the offer by the board of directors, but they did not do so.

As the judgment from which the Authority has appealed must be reversed for the reasons we have discussed, the issues of damages and Newberg’s cross-appeal are moot and need not be considered.

Accordingly, the judgment entered on count III of the complaint is reversed, counts I and II are reinstated, and this cause is remanded for further proceedings.

Reversed and remanded.

REINHARD, J., concurs.

JUSTICE VAN DEUSEN,

dissenting:

I respectfully dissent from the majority’s opinion in this matter. In my view, the effect of the majority’s opinion would be to require the personal approval of the Attorney General before an agency of the State could enter into a binding agreement to settle claims against it presented in a lawsuit.

The Illinois Constitution provides that the Attorney General shall be the legal officer of the State and shall have the duties and powers that may be prescribed by law. (Ill. Const. 1970, art. V, §15.) Under the act creating the Illinois State Toll Highway Authority and defining its powers and duties (Ill. Rev. Stat. 1979, ch. 121, par. 100—1 etseq.), the Authority was given the power to enter into all contracts and agreements necessary or incidental to the performance of its powers under the act (Ill. Rev. Stat. 1979, ch. 121, par. 100—8(b)) subject to the requirement that all contracts, leases, bonds or other undertakings or obligations entered into by the Authority would be examined and approved by the Attorney General as to their form and constitutionality prior to their execution and delivery. Ill. Rev. Stat. 1979, ch. 121, par. 100—15.

There is no contention on this appeal by the Authority that there were any defects in the form of the settlement resolution adopted by its board of directors or that it was in some manner constitutionally infirm. Nor is there any contention that the agreement was reached as a result of fraud, duress, deceit, misrepresentation or mistake. Therefore, I can perceive no requirement that the Attorney General’s approval must be obtained by the Authority before it could enter into a binding agreement with the plaintiff in this case. See Newberg-Krug-Brighton v. Illinois State Toll Highway Authority (1978), 63 Ill. App. 3d 780.

Further, there is credible evidence in this cause from which the trial judge, as the trier of fact, could find that the Attorney General through an assistant Attorney General had approved the settlement. Assistant Attorney General Lavery conducted the settlement negotiations with the plaintiff, advised the board of directors of the Authority that after extensive settlement discussion “we” reached a figure that the plaintiff would accept, advised the board of directors that it was a good settlement and prepared and presented to the board of directors the resolution accepting the settlement offer which the Authority adopted.

To hold that such an agreement may thereafter be set aside and held for naught because the personal approval of the Attorney Geneal had not been secured would, in my opinion, not only be erroneous, but also would be likely to cause great confusion and uncertainty in the handling of the legal affairs of the State of Illinois by its Attorney General.

I would affirm the judgment of the trial court.


author: PRESIDING JUSTICE GREEN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SHELVIN AUGUSTUS JOHNSON, Defendant-Appellant.
    Fourth District
    Nos. 17220, 17221 cons.
    Opinion filed February 11, 1982.
    Daniel D. Yuhas and Gary Peterson, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Robert J. Biderman and Garry W. Bryan, both of State’s Attorneys Appellate Service. Commission, of counsel), for the People.
   PRESIDING JUSTICE GREEN

delivered the opinion of the court:

Following two separate jury trials in the circuit court of Champaign County, defendant, Shelvin Johnson, was convicted on March 10, 1981, and April 16, 1981, of separate burglaries in our cases numbered 17220 and 17221. He received respective concurrent sentences of 4 years’ and 7 years’ imprisonment. The cases have been consolidated on appeal.

In case No. 17220, defendant challenges his conviction on the grounds that (1) he was not proven guilty beyond a reasonable doubt, and (2) the trial court erred by refusing to instruct the jury that theft is an included offense of burglary under the facts of the case. If his conviction in case No. 17220 is reversed, then defendant contends that his sentence in case No. 17221 must be set aside and the case remanded for a new sentencing hearing because the sentencing judge was influenced by the prior conviction in No. 17220 in imposing sentence. For the reasons which follow, we affirm the burglary conviction in case No. 17220 and therefore do not need to remand case No. 17221 for resentencing.

In case No. 17220, the State claimed defendant had burgled the residence of William Hughes on November 17, 1980. Hughes testified he was absent from his residence on that date and when he returned, he discovered that several doors to his residence had been forcibly opened and numerous items were missing. At trial Hughes identified a stopwatch, a Hamilton railway watch, and a box of cartridges as items taken from his home. Hughes’ daughter testified she had been watching her father’s home. She stated she had checked the house at 4 p.m. on November 17, 1980, and found nothing unusual, but on the 18th, doors to the house were open and items were missing. Brian Hockings, a Champaign police officer, testified he saw defendant exit a red van at 8:50 p.m. on November 18, 1980. Hockings stated that he then took defendant to a police station and inventoried the items in defendant’s possession. These items included the stopwatch and the Hamilton watch identified by Hughes. Hockings stated that defendant told him that he had purchased these items and could produce receipts for them.

Defendant testified that he bought the watches for $10 from a friend of his on the evening of November 17. He stated he assumed the watches were stolen when he bought them as they were being sold for only $10. He did not produce a receipt for the items. Defendant denied having committed the burglary.

At trial, the following instruction was given to the jury:

“If you find that the defendant had exclusive possession of recently stolen property, and there is no reasonable explanation of his possession, you may infer that the defendant obtained possession of the property by burglary.”

The inference stated in the instruction and defendant’s attempted explanation for the possession of the watches were the items of proof which supported defendant’s burglary conviction. In People v. Housby (1981), 84 Ill. 2d 415, 420 N.E.2d 151, the supreme court stated the inference may properly be applied if: (1) there is a rational connection between the accused’s recent possession of property stolen in the burglary; (2) his guilt of burglary is more likely than not to flow from his recent, unexplained and exclusive possession of burglary proceeds; and (3) there is evidence corroborating the accused’s guilt.

In the instant case we deem all three Housby requirements to be met. The fact that the possession was so recent after the burglary supports the rational connection and the likelihood that the burglary flows from the possession. The inference is corroborated by the explanation given by defendant which the jury could disbelieve. The jury could have found that defendant would have produced a receipt for the items if he actually had one. When he failed to produce one at trial and failed to give any explanation for not having one the jury could have concluded that he did not have a receipt and had not been telling the truth.

The Housby court stated that sufficient corroboration is presented where defendant himself presents an explanation of possession that the jury reasonably finds to be false. The theory that a false explanation by defendant would be corroborative evidence is supported by McCormick, Evidence §273, at 660 (2d ed. 1972), where it is stated:

“A party’s failure to produce evidence when he is free to produce or withhold, may as we have seen in the preceding section be treated as an admission. As might be expected, wrongdoing by the party in connection with his case, amounting to an obstruction of justice is also commonly regarded as an admission by conduct. By resorting to wrongful devices he is said to give ground for believing that he thinks his case is weak and not to be won by fair means. Accordingly, a party’s false statement about the matter in litigation, whether before suit or on the stand 500 are instances of this type of admission by conduct.” (Emphasis added.)

This case differs from People v. Phoenix (1981), 96 Ill. App, 3d 557, 421 N.E.2d 1022, where the reasonable possibility that the property had been taken by others and sold to defendants precluded defendants’ guilt of burglary from being inferred. There, defendants did not present any explanation of possession to the jury, but a defense witness testified that a man named Doug sold the rototiller, the item stolen in the burglary, to one of the defendants for $10. In the present case defendant testified presenting an explanation of the possession which the jury could have found to be false. Accordingly, in Phoenix, unlike here, there was no testimony or statements by a defendant which the jury could determine to be false and, therefore, consider as a corroborating factor. Also, here, no other evidence was presented to corroborate defendant’s explanation. The evidence presented here was sufficient to find defendant guilty of burglary beyond a reasonable doubt.

The defendant also contends the court erred in refusing to instruct the jury that theft is an included offense of burglary under the facts of this case. However, it is well recognized that theft is not an included offense of burglary by definition. Burglary does not require a taking and theft does not require an entry. (People v. Shoemaker (1975), 31 Ill. App. 3d 724, 334 N.E.2d 347.) Defendant’s argument appears to be that under the circumstances where the jury is instructed pursuant to the inference arising from the exclusive possession of recently stolen property, it is unnecessary for the prosecution to establish the elements of the offense beyond a reasonable doubt because the jury is allowed to infer an accused guilty of burglary if it finds that he had unexplained exclusive possession of recently stolen property. Under those circumstances, defendant claims theft then becomes an included offense of burglary.

The possibility that a defendant may be entitled to an instruction that one offense is an included offense of another if, under the evidence presented, the crime is included in the one charged and the evidence is sufficiently in dispute so that the jury may consistently find the defendant not guilty of the offenses charged but guilty of the one not charged was discussed in People v. Cramer (1981), 85 Ill. 2d 92, 421 N.E.2d 189. That court concluded that it was not required to rule on that issue in that case and declined to do so. Here, the defendant merely indicated that he wished for such an instruction to be given, but did not tender any such instruction. Even if the instruction may be required under certain circumstances, we cannot pass upon the requirement for the instruction in this case without knowing the form the instruction would take. Accordingly, we deem the issue to have been waived and likewise refrain from passing upon the proposed expansion of the included offense theory.

The judgment in case No. 17220 is affirmed. As that judgment has been affirmed, there is no need to remand for resentencing case No. 17221, and the sentence there is affirmed.

Affirmed.

LONDRIGAN and TRAPP, JJ., concur.


text:
    WILLIAM GEGENWARTH, Plaintiff-Appellee, v. THE DEPARTMENT OF LAW ENFORCEMENT et al., Defendants-Appellants.
    Fourth District
    No. 17230
    Opinion filed February 11, 1982.
    Tyrone C. Fahner, Attorney General, of Chicago (Edward Kay, Assistant Attorney General, of counsel), for appellants,
    Edward G. Coleman, of Springfield, for appellee.
   PRESIDING JUSTICE GREEN

delivered the opinion of the court:

On August 1, 1978, defendant Department of Law Enforcement ' Merit Board (Merit Board) entered an order finding plaintiff, William Gegenwarth, a trooper employed by defendant Department of Law Enforcement, Division of State Police (State Police), guilty of insubordination and suspending him for 180 days without pay. The circuit court of Sangamon County, upon administrative appeal by plaintiff, reversed the Merit Board order. Defendants appeal. We reverse the circuit court and affirm the Merit Board.

The evidence before the Merit Board showed that State Police officials were suspicious that because plaintiff had secondary employment with Sears Roebuck and Company (Sears) and had taken an unusually large number of days of sick leave, he might have been using some of the sick leave to work at his other job. An investigation was started during which plaintiff was ordered by a superior officer to permit persons from the State Police professional standards section (PSS) to obtain copies of plaintiff’s employment records with Sears. The Merit Board found plaintiff’s refusal of the demand to be insubordination. Plaintiff maintains he was not required to grant the request because (1) before making the demand, the State Police failed to give him certain warnings required by statute, and (2) the demand violated his right to fundamental due process.

Section 10—1—18 of the Illinois Municipal Code (Ill. Rev. Stat. 1979, ch. 24, par. 10—1—18) provides that before classified employees of a municipality that has adopted the civil service provisions of the Code may be “interrogated or examined by or before any disciplinary board, or departmental agent or investigator,” the results of which procedure may be the filing of suspension or removal charges, certain steps must be taken to protect the employee. These steps include advising the employee in writing that “his admissions made in the course of the hearing, interrogation or examination may be used as the basis for [the] charges.” The parties do not dispute that no such writing was supplied plaintiff here and that if section 10—1—18 were applicable here, the action of the State Police in investigating plaintiff and demanding his consent to access to his employment file at Sears would come within the purview of the section. The legislative provision for disciplinary and removal proceedings before the Merit Board makes no such requirement. (Ill. Rev. Stat. 1979, ch. 121, pars. 307. 13, 307. 14.) Plaintiff maintains that legislation should be considered in pari materia with section 10—1—18 of the Municipal Code and held to contain the provisions by implication.

Plaintiff’s position is supported by the case of Palcek v. City of Chicago Heights (1979), 74 Ill. App. 3d 702, 393 N.E.2d 1218. There, administrative proceedings for discharge of policemen of the defendant-city were governed by section 10—2.1—17 of the Municipal Code (Ill. Rev. Stat. 1977, ch. 24, par. 10—2.1—17) which also had no provision similar to section 10—1—18 of’ the Code. In a proceeding for the discharge of a policeman, a statement taken from him by police officials without advising him in the manner required by section 10—1—18 was introduced into evidence in the administrative hearing over the officer’s objection. On appeal in the appellate court for the First District, the use of the statement was held to be reversible error.

The Palcek court noted that whether proceedings for discipline or discharge of municipal police officers was governed by section 10—2.1—17 or section 10—1—18 depended upon the size of the municipality and whether its voters had elected to be governed by the civil service provisions of section 10—1—1 et seq. of the Code (111. Rev. Stat. 1977, ch. 24, par. 10—1—1 et seq.). The court deemed those differences insufficient to provide a rational basis for the difference in treatment of police officers. The court held consideration of section 10—2.1—17 in pari materia with section 10—1—18 and the reading of the employee safeguards of the latter into the former was necessary to prevent the former from denying equal protection to those police officers governed by it. The court also noted that in Kropel v. Conlisk (1975), 60 111. 2d 17, 322 N.E.2d 793, the supreme court held that the summary suspension procedures of section 10—1—18.1 of the Municipal Code (111. Rev. Stat. 1973, ch. 24, par. 10—1—18.1), which literally permitted the suspension of a police officer for up to 30 days without a hearing was required to be considered in pari materia with section 10—1—18 of that code (111. Rev. Stat. 1973, ch. 24, par. .10—1—18) and sections 8b.6, 8b.15, and 8b.16 of the Personnel Code (111. Rev. Stat. 1973, ch. 127, pars. 63bl08b.6, 63bl08b.l5, 63bl08b.l6), which provided for some reasonable type of hearing for personnel suspended for more than a few days but not to exceed 30 days. The supreme court deemed it necessary to read the provisions of section 10—1—18 into section 10—1—18.1 in order to prevent the latter from denying both due process and equal protection.

In Lupo v. Board of Fire and Police Commissioners (1979), 82 Ill. App. 3d 449, 402 N.E.2d 624, the Appellate Court for the Second District, faced with substantially the same situation as the Palcek court, refused to follow that decision. The Lupo court stated that unlike in Kropel, no due process violation arose from the failure of the legislation in issue to provide for admonitions to the police officers in regard to admissions they might make in the course of disciplinary procedure. The court also concluded that a rational basis existed to differentiate the two legislative provisions in issue. We agree.

Section 10—1—18 applies to various types of municipal employees under civil service. It is not limited to police employees. Section 10—1—18.1 is limited to police employees. The legislation under scrutiny here is applicable only to “Department of Law Enforcement officers.” (Ill. Rev. Stat. 1979, ch. 121, par. 307.13.) Such an officer would be more likely to understand the use to which an admission made by him might be put than would many municipal employees covered by section 10—1—18. That alone constitutes a rational basis for the distinction made and renders unnecessary application of the rule of in pari materia to give constitutionality to the legislation. Our situation differs from that in Kropel in that police officers are in as much need of the rights requested there as are other civil service employees. They are not in need of the same advice as to the consequences of their admissions.

As was the case when discussing plaintiff’s statutory rights, the cases cited by both sides as bearing upon plaintiff’s due process rights concern testimonial matter required of an employee under possible threat of discharge. Here, the information sought was records in the control of another, but neither side disputes that the situations are analogous. We agree with defendants that the case of Kammerer v. Board of Fire & Police Commissioners (1970), 44 Ill. 2d 500, 256 N.E.2d 12, is controlling in determining defendant’s due process rights.

In Garrity v. New Jersey (1967), 385 U.S. 493, 17 L. Ed. 2d 562, 87 S. Ct. 616, the Supreme Court held that a policeman compelled by his employer under threat of loss of job to testify in a proceeding where he was not charged with a crime thereby becomes clothed with immunity against subsequent use of that testimony against him in a criminal case. Later, in Gardner v. Broderick (1968), 392 U.S. 273, 20 L. Ed. 2d 1082, 88 S. Ct. 1913, that court held that a police officer who refuses to waive his privilege against self-incrimination and refuses to execute a waiver of the immunity that would arise from his testimony cannot be dismissed from his employment for that refusal. The court further stated that if the officer was not required to waive the immunity described in Garrity, he could be required to answer questions which directly and narrowly related to his official duties. The Kammerer court held that in view of these rulings, an officer who refused to testify before a police disciplinary board as to matters reasonably related to his work may be discharged for his refusal. The court reasoned that because of the holding of Garrity, the policeman would not be incriminating himself in so testifying. The Kammerer opinion gives no indication that the police officer had been advised concerning the use that might be made of his testimony or the immunity he would receive if he did testify.

Plaintiff argues that before he could have been required under penalty of sanction to permit the State Police access to the Sears’ records, he must first have been advised concerning the immunity he would receive by doing so. We do not interpret Kammerer to so require. We deem anything to the contrary in Confederation of Police v. Conlisk (7th Cir. 1973), 489 F.2d 891, or Kalkines v. United States (U.S. Ct. Cl. 1973), 473 F.2d 1391, not to be binding, upon us.

The request of plaintiff to furnish the Sears’ records was sufficiently reasonably related and narrowly confined to the performance of his duties. At plaintiff’s request the original document he was asked to sign was amended to delete reference to financial and credit reports and limited to “applications for employment, time records, work schedules, medical and other records relating to secondary employment.” In view of the evidence of plaintiff’s use of nearly 30 days’ sick leave in the previous year and State Police regulations prohibiting secondary employment that conflicted with the trooper’s primary duties, we deem the request to fall within the Gardner, Kammerer, requirements.

For the reasons stated, we reverse the judgment of the circuit court and affirm the suspension ordered by the Merit Board.

Judgment of the circuit court reversed; suspension ordered by the Merit Board affirmed.

WEBBER and MILLS, JJ., concur.


author: PRESIDING JUSTICE SULLIVAN

text:
    FIRST NATIONAL BANK OF LA GRANGE, Trustees, Plaintiff-Appellee, v. MID-STATES ENGINEERING & SALES, INC., Defendant-Appellant.
    First District (5th Division)
    No. 80-2488
    Opinion filed October 9, 1981.
    Rehearing denied February 22, 1982.

      Francis P. Smith, of Shaheen, Lundberg and Callahan, of Chicago, for appellant.
    Frank R. Reynolds, Jr., of Reynolds and Reynolds, of Chicago, for appellee.
   PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court:

Defendant appeals a declaratory judgment in plaintiff’s favor, contending the trial court erred in holding that the phrase “to the date of death” in an agreement was intended to include the date on which plaintiff’s decedent, John D. MacGuffin, died.

The facts are largely undisputed. Plaintiff is the successor trustee under a self-declaration of trust established by decedent, who was a director, officer, and shareholder of defendant. Upon decedent’s death on November 17, 1979, plaintiff became the owner, under the trust, of 32,500 of the 65,000 outstanding shares of defendant’s stock. The remaining 32,500 shares were owned by Richard Bland.

Decedent, Bland, and defendant had executed a “Buy-Sell Agreement” (agreement) in 1971 which, in pertinent part, required defendant to purchase decedent’s interest after his death at a price to be computed as provided in the agreement and paid over a 4-year period at 6 percent annual interest. The agreement also required that in the event of such purchase, the value of the stock was to be determined by an audit of the defendant’s books covering the period from the date of the last audit report to the date of decedent’s death. Pursuant thereto, defendant had an audit made covering the period from the last audit through November 16, 1979, the day before decedent’s death, which excluded from the audit $174,360, which became an asset of defendant as beneficiary of several life insurance policies on decedent.

Plaintiff filed a complaint for declaratory judgment alleging that the audit should have encompassed November 17, 1979, the date of decedent’s death, which would have included the insurance proceeds. Defendant then moved for judgment on the pleadings on the ground that as a matter of law the word “to” in the phrase “to the date of death” excludes November 17,1979, which therefore was properly omitted from the audit evaluating its assets. Plaintiff then filed a cross-motion for judgment which was granted on the finding of the trial court that the phrase “to the date of death” included November 17, 1979—the date of decedent’s death. This appeal is taken from that judgment.

Opinion

The sole issue presented on appeal is whether the phrase “to the date of death,” as commonly understood in the law, includes or excludes the date of decedent’s death. The agreement in question provides in relevant part:

“1. In the event of the death of either of the Second Parties [decedent or Bland], the said Second Parties * * * do hereby agree to sell to the First Party [defendant] and the First Party agrees to purchase * * * all of the capital stock standing in the name of any such deceased shareholder * s 0 at the book value of said capital stock as hereinafter set forth in paragraph 3. ft ft ft
3. In the event of the purchase of stock from the estate of any shareholder under the provisions of Paragraph 1 of this agreement, the book value of the stock of said corporation shall be determined by audit of the books of account of said corporation by Alexander X. Kuhn & Co., Certified Public Accountants, covering the period from the date of the last audit report to the date of death.”

It is a familiar principle of contract construction that the words used be given their ordinary, natural and commonly accepted meaning unless it clearly appears that the parties intended to ascribe to them a peculiar or unusual meaning. (Illinois Valley Asphalt, Inc. v. La Salle National Bank (1977), 54 Ill. App. 3d 317, 369 N.E.2d 525.) Equally well established is the rule that every contract is presumed to incorporate existing law (Illinois Bankers Life Association v. Collins (1930), 341 Ill. 548, 173 N.E. 465; Needy v. Sparks (1979), 74 Ill. App. 3d 914, 393 N.E.2d 1252), so that “the courts, in construing the existing law as part of the express contract, * * * are merely construing the contract in accordance with the intent of the parties” (Schiro v. W. E. Gould & Co. (1960), 18 Ill. 2d 538, 544, 165 N.E.2d 286).

With respect to the use of the word “to” in a contract, it is stated in 34 Ill. L. & Prac. Time §7 (1958) that:

“Where the time for doing an act is extended ‘to’ a specified date, the doing of the act on the specified date is too late. Originally, where a contract simply provides that it is to extend to a certain date, the word ‘to’ means until and excludes the date following it as a part of the contract, but where a contract is to take effect from its date, and to continue to a certain other date, the latter is not excluded but is to be considered as the last day of the contract.”

Defendant refers us to a number of cases in support of its position that the date of defendant’s death should be excluded from the audit. We believe, however, that they are distinguishable from the case before us. In Stearns v. Sweet (1875), 78 Ill. 446, a question was raised as to whether an endorsement on each of a number of promissory notes which read “[ijnterest paid on the within note to July 26 ° * °” had the effect of extending the time for payment of the notice through July 26. The court stated:

“[I]t is clear the interest was paid only until or before the 26th inst.—that is, embracing the time which was completed when the 26th day commenced.” (78 Ill. 446, 448.)

It was thus held that July 26 was excluded. In Clark v. Ewing (1877), 87 Ill. 344, the trial court extended the time for a pleading to the third Monday of July. In rejecting the argument that the time did not expire until the end of that day, the reviewing court held that the words “to the third Monday of July” meant “until the meeting of the court upon that day.” (87 Ill. 344, 345.) In Taylorville Sanitary District v. Nelson (1929), 334 Ill. 510, 166 N.E. 60, the time for the filing of a pleading was extended “to November 14” and it was held that its filing on that day was not within the time allowed, as the phrase “to November 14” excluded that date. In Martin v. New York, Chicago & St. Louis R.R. Co. (1952), 346 Ill. App. 467,105 N.E.2d 122 (abstract), the time to file a motion for a new trial was extended to November 22, and the court found that the filing of the motion on that date was untimely.

It is clear that the principle uniting the foregoing cases appears to be, as stated above in the quotation from Ill. L. & Prac.: “Where the time for doing an act is extended ‘to’ a specified date, the doing of the act on the specified date is too late.” While in that sense, the use of the word “to” serves as a term of exclusion, we note that in the case before us no extension of time to a specific date within which to do an act was involved.

The case of Domke v. McCue (1968), 110 Ill. App. 2d 1, 249 N.E.2d 287, also cited by defendant, is likewise distinguishable. There, the court in construing the phrase “to be distributed equally among my nieces and nephews as enumerated in Paragraphs 1 to 13 0 0 *” found that the word “to” was not intended to be used inclusively. This construction, however, was reached because the testatrix had used the phrase “to and inclusive” in other provisions of the will, and the court reasoned that it would have been inconsistent with her intention to have found that the word “to” was inclusive where it was used alone. In the instant case, the record discloses no terminology similar to that considered in Domke v. McCue.

Because no extension of time to a specific date was involved here, we believe the facts more appropriately come within the rule as stated in the above quotation from Ill. L. & Prac., that “where a contract is to take effect from its date, and to continue to a certain other date, the latter is not excluded but is to be considered as the last day of the contract.” It is our view that the agreement requiring an audit covering a period from the date of the last audit to the date of decedent’s death is inclusive of the latter date. It appears that the facts are analogous to another case cited by defendant—Brandenburg v. Buda Co. (1921), 299 Ill. 133, 132 N.E. 514. No extension to a specific date was involved in that case where, in pertinent part, the contract provided that it took effect from its date October 19, 1911, to July 1,1916, and from year to year thereafter unless terminated by a notice given 60 days prior to July 1 of any year thereafter. A notice of termination was given April 23, 1916, to take effect on July 1, 1916, and the question presented was whether the phrase “to July 1,1916” excluded or included that date. If the former, the notice would have terminated the contract on July 1, 1916; but, if the latter, the contract would not be terminated until the next year—or July 1,1917. Finding that July 1 was included within the time period contemplated by the contract, the court stated:

“[W]here a contract is to take effect from its date and continue to a certain other date, the latter date is not excluded but is to be considered as the last day of the contract. [Citation.] So in this case, the contract is to continue from October 19, 1911, to July 1, 1916, and from year to year thereafter until terminated. All years of this contract after July 1, 1912, therefore end at midnight of July 1 and begin July 2.” 299 Ill. 133, 137-38, 132 N.E. 514, 516.

Moreover, we note that the issue before the court in Brandenburg v. Buda was the effectiveness of the notice of termination and, in this regard, the fixing of the last day of the contract was crucial. Similarly, in the case before us, the time period encompassed by the audit was the issue, and the fixing of the last day thereof was not only crucial but was not determinable until decedent died. Thus, while the beginning date of the audit was certain—in the language “from the date of the last audit report”—the time period encompassed by the audit would not be known until the date of death. It appears clear that the parties intended that the occurrence of such event would settle and bring to a close the auditing period, just as the date July 1, 1916, concluded the contractual period in Brandenburg. Under the circumstances presented herein, we are of the opinion that the trial court correctly held that the word “to” was used inclusively and that the period of the audit included the date of decedent’s death. Accordingly, the judgment appealed from is affirmed.

Affirmed.

MEJDA and WILSON, JJ., concur.


author: JUSTICE McGLOON

text:
    BENJAMIN J. RASKY, Plaintiff-Appellant, v. COLUMBIA BROADCASTING SYSTEM, INC., a/k/a CBS-WBBM, etal., Defendants-Appellees.
    First District (1st Division)
    Nos. 80-361, 80-788, 80-1519 cons.
    Opinion filed November 23, 1981.
    Rehearing denied February 1, 1982.

      Benjamin A. Rasky, of Skokie, for appellant, pro se.

    Don H. Reuben, Lawrence Gunnels, and Samuel Fifer, all of Reuben & Proctor, David W. Andich and Gerald A. Niederman, both of Roan & Grossman, Steven Lubet, of Northwestern University Legal Clinic, and Susan Connell and James O. Latturner, both of Legal Assistance Foundation of Chicago, all of Chicago, for appellees.
   JUSTICE McGLOON

delivered the opinion of the court:

Plaintiff, pro se, instituted an action to recover damages from defendants for defamation, trespass, invasion of privacy and civil conspiracy. The trial court granted defendants’ motion to dismiss plaintiff’s complaint. Plaintiff now appeals.

On appeal, plaintiff claims that the trial court erred in dismissing plaintiff’s complaint charging defendants with defamation, trespass and invasion of privacy. We have considered plaintiff’s arguments regarding the trespass and invasion of privacy issues and find them to be without merit. We will therefore limit our discussion to the defamation issues raised by plaintiff.

We affirm.

Before we discuss the merits of the issues raised in this appeal, it is essential that we print in full the allegedly defamatory statements which inspired the suit brought by Benjamin Rasky (plaintiff). On February 18, 1977, defendant Columbia Broadcasting System, Inc. (CBS) broadcast a news telecast prepared and delivered by defendant Susan Anderson. The text of the telecast reads as follows:

“ANDERSON: There’s a law on the books which makes it a crime for a landlord to neglect his property and jeopardize the health and safety of his tenants. That law has never been used, until now. Citizens of the Edgewater community—primarily those who live in the Kenmore-Winthrop corridor—are now using this law to strike back. People here are fed up with their neighborhood deteriorating. One eyesore they’ve targeted is Tourraine [sic]. The building’s owner is Benjamin Rasky, a LaSalle Street Lawyer. Edgewater citizens say Rasky is a slumlord. To back up their charge, they point to falling plaster, peeling paint, exposed wiring and rats. One tenant here is Albert Griffin.
GRIFFIN: I noticed the toliet wouldn’t flush, so I tried the facebowl. There weren’t no water. Then I tried the bathtub—no water. (At this point, Mr. Griffin made a point concerning the controls under the sink which was inaudible.)
ANDERSON: And how much have you paid for this place? What’s the rent?
GRIFFIN: One-hundred and twenty-five dollars.
ANDERSON: That one-hundred and twenty-five dollar figure is the maximum public aid lets its recipients pay for a so-called furnished apartment. Residents who live near this building say it was an attractive place * * * that is, until Rasky took it over three years ago.
ANDERSON: Dave Wallher [sic], Edgewater Community Council * • *
WALLHER [sic]: He just milked this building for whatever he could get out of it. He hasn’t put anything into it. And, a building of this size, it’s attracted the types of persons that are perpetrating much of the crime in this area.
ANDERSON: The citizens here have hauled Rasky into housing court for years 999 but they say he merely pays the fines for building violations as a cost of doing business and never bothers with repairs. At that point, the district’s state representative found the slumlord law on the books. The result? Today, the state filed a complaint. Ellis Levin, 12th District Representative ° ° ®
LEVIN: Clearly, in cases like this, the traditional remedies, uh, building court and also criminal housing management are just not working. And so, you know, through the approach of going after an individual’s livelihood, his real estate license, hopefully we’ll be able to exert an awful lot more influence in the future. It’s a new vehicle, available to government and available to community groups.
ANDERSON: If Rasky is found guilty, his real estate license can be revoked. That means he can no longer buy, sell, rent or manage any property ever again in this state. Rasky was too ill to be interviewed today but he did tell me he’s not a slumlord. He says he’s been plagued with people who’ve moved in as squatters, with building managers who’ve pocketed his rents and with police who’ve not curbed the vandals and hoodlums. Walter * 0

On February 20, 1977, defendant Gloria Bittner, chairperson of defendant Organization of the Northeast (ONE), gave a speech in which she mentioned plaintiff. She said:

“The traditional building court route has failed to force Rasky to bring these buildings into full compliance, despite the arsenal used by judges, such as orders, fines, contempt citations, injunctions, receiverships and escrow arrangements.”

Plaintiff’s complaint attributed four allegedly defamatory statements to defendant Representative Ellis B. Levin. In a telephone interview, Levin stated:

“Clearly, in cases like this, the traditional remedies, uh, building court and also criminal housing management are just not working. And so, you know, through the approach of going after an individual’s livelihood, his real estate license, hopefully, we’ll be able to exert an awful lot more influence in the future. It’s a new vehicle, available to government and available to community groups.”

Levin was quoted in the Sunday Star as saying:

“I hope this will set a strong precedent for the future widespread use of this rule as a new weapon in the fight against slum landlords.”

He was quoted in the Chicago Tribune as saying:

“The case would prove to be a landmark that opens up a whole new way to go after slumlords.”

Levin distributed the following news bulletin to his constituents:

“FIRST COMPLAINT FILED TO REVOKE SLUMLORD’S REAL ESTATE LICENSE.
A new method for combatting slum landlords was developed when Rep. Levin, Edgewater Community Council Safety Program and Edgewater Residents Together in Action (ERTIA) filed the first complaint with the Ill. Dept, of Registration and Education to revoke a landlord’s real estate broker license.
The approach is aimed at stopping slum landlords when Building Court fails. ‘If a slumlord’s license is threatened,’ Levin said, ‘he is more likely to clean up the building.’ The complaint charged that Benjamin A. Rasky operated four buildings with dangerous conditions and several hundred building code violations at 5303-09, 5621-25 and 5726-28 Winthrop and 832 Gunnison.”

On November 11, 1977, defendant Chicago Reader, Inc., published an article entitled “Why Ellis Levin Is A Marked Man.” The article was written by defendant Don Rose. It stated:

“One agency he [Ellis Levin] recently got to do its job is the Illinois Department of Registration and Education, which licenses real estate operators but never saw fit to crack down on slum landlords until Levin lit the fuse. The result: for the first time in history a slum landlord operating in Uptown, Benjamin A. Rasky, is under the gun to fix up his places or lose his license.”

Plaintiff alleged in the trial court that each of the aforementioned statements was libelous. All of the defendants moved to dismiss plaintiff’s complaint for failure to state a cause of action. The trial court granted defendants’ motions, and plaintiff now appeals.

In order to determine whether particular language constitutes libel per se, Illinois courts employ the “rule of innocent construction.” The rule holds that an allegedly libelous statement is to be read as a whole and the words given their natural and obvious meaning, and requires that words allegedly libelous that are capable of being read innocently must be so read and declared nonactionable as a matter of law. (Valentine v. North American Co. (1974), 60 Ill. 2d 168, 171, 328 N.E.2d 265; John v. Tribune Co. (1962); 24 Ill. 2d 437, 442, 181 N.E.2d 105, cert. denied (1962), 371 U.S. 877, 9 L. Ed. 2d 114, 83 S. Ct. 148.) If a statement is capable of two constructions, one of them defamatory and the other innocent, the innocent construction must be chosen. Whether the language used is susceptible of an innocent construction is a question of law to be resolved by the courts. 60 Ill. 2d 168, 171; Zeinfield v. Hayes Freight Lines, Inc. (1968), 41 Ill. 2d 345, 347, 243 N.E.2d 217.

Plaintiff was referred to as a “slum landlord” or “slumlord” by, several of the defendants in this action. Black’s Law Dictionary defines a “landlord” as one who, “being the owner of an estate in land, or a rental property, has leased it to another person * * * .” (Black’s Law Dictionary 790 (5th ed. 1979).) It defines “slum” as a “squalid, run-down section of a city, town or village, ordinarily inhabited by the very poor and destitute classes ° * * .” (Black’s Law Dictionary 1245 (5th ed. 1979).) Based on these definitions and applying the innocent construction rule, the terms “slum landlord” and “slumlord” can be construed to mean that plaintiff owned buildings in a poor and dirty neighborhood or, simply stated, that plaintiff was a landlord in a slum.

In the trial court, plaintiff attempted to avoid the legal impact of the innocent construction rule by offering other dictionary definitions of the phrase “slum landlord.” In effect, he suggested that if any conceivable definition of the phrase might be defamatory, then it cannot be innocently construed. We believe the trial court properly rejected plaintiff’s interpretation of the rule. We agree that a proper application of the rule of innocent construction necessitates a finding that the term “slumlord” or “slum landlord,” as used in the several publications, is susceptible of an innocent construction.

Moreover, the meaning of an allegedly libelous statement must be gathered not only from words singled out, but also from the context of the statement. (Bravo Realty, Inc. v. Columbia Broadcasting System, Inc. (1980), 84 Ill. App. 3d 862, 865, 406 N.E.2d 61.) It must be determined whether the “gist” or “sting” of the statement, taken as a whole, is capable of an innocent construction. (See Kilbane v. Sabonjian (1976), 38 Ill. App. 3d 172, 347 N.E.2d 757.) The overall thrust of the CBS news telecast was that citizens in the community were bitterly opposed to the way in which they perceived that plaintiff managed his buildings and, that through their representatives, they intended to explore available legal remedies for redress. In that context, the report noted that Edgewater citizens have accused plaintiff of being a “slumlord,” have previously taken legal action against him, and claim he does not make repairs. In our opinion, the CBS news telecast, taken as a whole, is capable of an innocent construction and cannot be considered defamatory as a matter of law.

Similarly, we believe that the statement attributed to defendant Gloria Bittner can be innocently construed. Bittner simply asserted that the courts have failed to force plaintiff to comply with the building code. Her statement was a criticism of the judicial system rather than an impugnment of plaintiff. It therefore must be considered nonactionable as a matter of law.

A reason why plaintiff’s claim against all defendants must fail is that publication of a falsehood is not libel per se unless, on its face, it charges: (1) commission of a crime; (2) infection with a loathsome disease; (3) unfitness or want of integrity in performing the duties of an office or employment; or (4) lack of ability in plaintiff’s business, trade or profession. (Makis v. Area Publications Corp. (1979), 77 Ill. App. 3d 452, 456, 395 N.E.2d 1185; Bruck v. Cincotta (1977), 56 Ill. App. 3d 260, 264, 371 N.E.2d 874.) An action based on libel per se requires a serious charge of incapacity or misconduct in words so obviously and naturally hurtful that proof of their injurious character is dispensed with. 77 Ill. App. 3d 452, 456.

Plaintiff claims that the allegedly defamatory statements made by all defendants (except Gloria Bittner and ONE) are libelous per se because they charge him with the commission of a crime. More specifically, he maintains that the publications charged him with the crime of criminal housing management (Ill. Rev. Stat. 1979, ch. 38, par. 12—5.1(a)). This statute provides that one is guilty of the offense of criminal housing management when he “knowingly permits by his gross carelessness or neglect the physical condition or facilities of the residential real estate to become or remain so deteriorated that the health or safety of any inhabitant is endangered.” Illinois cases have held that words imputing the commission of a crime are libelous per se only if the offense is indictable, involves moral turpitude and is punishable by death or imprisonment rather than by a fine. (Bruck v. Cincotta (1977), 56 Ill. App. 3d 260, 264, 371 N.E.2d 874; Reed v. Albanese (1966), 78 Ill. App. 2d 53, 60, 223 N.E.2d 419.) Even if we were to accept plaintiff’s argument that the publications charged him with the commission of this crime, it still would be insufficient to support a charge of libel per se since such an accusation is in no way tantamount to a charge of involvement in a crime involving moral turpitude.

Additionally, plaintiff contends that defendants’ statements impugned his professional fitness as a lawyer and as a real estate operator. In a license revocation proceeding before the Illinois Department of Registration and Education, plaintiff filed an affidavit in which he represented that the practice of law was his sole vocation from 1929 to the date of the affidavit, April 1977. In light of this representation, he cannot now claim that his professional reputation as a real estate operator was impugned. Since none of defendants’ statements alluded to plaintiff’s qualifications or competence as a lawyer, we must reject plaintiff’s contention that his professional fitness as a lawyer was attacked. See generally Reed v. Albanese (1966), 78 Ill. App. 2d 53, 223 N.E.2d 419; Hambric v. Field Enterprises, Inc. (1964), 46 Ill. App. 2d 355, 196 N.E.2d 489.

For the foregoing reasons, we affirm the trial court order dismissing plaintiff’s claim against all defendants in this suit.

Order affirmed.

CAMPBELL, P. J„ and GOLDBERG, J., concur.


author: JUSTICE WHITE

text:
    EDWARD GOLDBERG, Plaintiff-Appellant, v. ILA SUE GOLDBERG, Defendant-Appellee.
    First District (3rd Division)
    No. 80-1417
    Opinion filed December 16, 1981.
    Rehearing denied February 17, 1982.

      Synek, Bishart & Porikos, of Chicago (Henry Thrush Synek, of counsel), for appellant.
    Harvey Sussman, of Chicago, for appellee.
   JUSTICE WHITE

delivered the opinion of the court:

Plaintiff Edward Goldberg appeals from a final order of the circuit court of Cook County granting the motion of defendant, Ila Goldberg, to strike and dismiss his amended complaint to remove cloud on title. On April 11, 1979, plaintiff filed his original complaint in chancery. The relevant facts, as set forth in this complaint, follow. The parties to this action were married on January 25,1953, in Tucson, Arizona. On April 28, 1975, the circuit court of Cook County entered a judgment for divorce dissolving their marriage. This judgment incorporated as part of its terms a property settlement agreement entered into by the parties. Subparagraph J of the agreement as set forth in paragraph 6 of the judgment for divorce provided:

“J. That the Defendant shall immediately execute a Quit Claim Deed in and to the marital residence, commonly known as 6650 Kostner Avenue, Lincolnwood, Illinois, and legally described as follows:
[Legal description.]
and that said deed shall be recited in such a way so that when it is recorded, it shall recite the fact that transference and real estate is subject to the provisions of this Decree, and the Defendant is given an interest in the marital residence in the amount of TWELVE THOUSAND FIVE HUNDRED DOLLARS ($12,500.00), and that if Defendant does not receive that amount on or before May 1, 1976, then the principal sum shall bear simple interest at the rate of FIVE PER CENT (5%) simple interest until received by the Defendant; it is further agreed that the Defendant shall receive the TWELVE THOUSAND FIVE HUNDRED DOLLARS ($12,500.00) at the earliest of the following contingencies:
(1) remarriage of the Plaintiff;
(2) sale of the home;
(3) forty two (42) months from the date of May 1, 1975.”

The complaint further alleges that plaintiff, pursuant to the terms of subparagraph J of paragraph 6, immediately executed a quit-claim deed to the marital residence; that the quit-claim deed was dated May 15, 1975, and recorded in the office of the recorder of deeds on June 3, 1975; that defendant has not remarried; that the real estate involved has not been sold; that the 42-month contingency expired on November 1, 1978; that plaintiff has repeatedly requested defendant to pay the $12,500.00 plus interest, but defendant failed and refused to pay the sum requested; that in view of defendant’s arbitrary and willful refusal to fulfill the terms of said oral settlement agreement, the plaintiff has been defrauded of his one-half interest in said real estate; that plaintiff relied on such false and fraudulent oral representations of defendant and believed them to be true, and because thereof entered into the oral settlement agreement with defendant; and that the plaintiff elects to rescind the agreement because of the fraud upon him, as well as upon the court. Plaintiff’s complaint also offered to do equity by cancelling the indebtedness of $12,500 plus interest and stated that plaintiff did not have an adequate remedy at law. In his prayer for relief, plaintiff asked that the oral settlement agreement as it related to the real estate be rescinded, declared null and void, and set aside as a cloud upon the title of plaintiff, that the quit-claim deed be declared null and void and set aside as a cloud upon plaintiff’s title, and that plaintiff be declared an undivided one-half owner of said real estate with defendant.

On May 17,1979, defendant filed her motion to dismiss asserting that the complaint failed to state a cause of action, and that plaintiff had an adequate remedy in the domestic relations division of the circuit court of Cook County. On October 10, 1979, Judge Richard L. Curry of the chancery division entered an order denying the motion to dismiss and transferring the cause to the domestic relations division. On November 21, 1979, Judge Willard J. Lassers of the domestic relations division, entered an order granting defendant’s motion to dismiss for failure to state a cause of action and granting plaintiff leave to file an amended complaint. Plaintiff then filed his amended complaint to remove cloud on title. The allegations of the amended complaint were identical to those of the original complaint, except that the former added the following allegations:

“16. That the said deed was delivered by the plaintiff to the defendant pursuant to the terms and conditions of said Judgment for Divorce only upon, and specifically upon, the said terms and conditions, and therefore said delivery was conditional, which conditions the defendant, ILA SUE GOLDBERG, has failed and refused to meet and comply with as set forth in the Judgment for Divorce by November 1, 1978, and therefore said Quit Claim Deed is void; and, in the alternative, if voidable at the option of the grantor, plaintiff herein, said plaintiff elects to have it voided.”

In response, defendant filed a motion to strike plaintiff’s amended complaint which asserted that it also failed to state a cause of action. On April 17, 1980, Judge James J. Meehan, entered an order allowing defendant’s motion to strike and dismiss the amended complaint and finding that there was no just cause for delay in the enforcement of or appeal from the order. Plaintiff appeals.

We first address plaintiff’s contention that Judge Lassers erred in holding a hearing on defendant’s motion to dismiss after that motion to dismiss had been denied by Judge Curry. He asserts that Judge Lassers was, in essence, acting as an appellate court. We find that this contention is without merit. Judge Curry, in a single order, both denied the motion to dismiss without giving a reason and transferred the cause from the chancery division to the domestic relations division. It would appear from this that the order was not a ruling on the merits of the motion. Moreover, before entry of a final order, a trial judge is not bound by an order of a previous judge. Towns v. Yellow Cab Co. (1978), 73 Ill. 2d 113, 121, 382 N.E.2d 1217; Richichi v. City of Chicago (1964), 49 Ill. App. 2d 320, 325, 199 N.E.2d 652.

Judge Meehan, in his order striking and dismissing the amended complaint, did not give any reasons for his decision. However, regardless of the reason for the dismissal of the amended complaint, the order may be sustained on any basis found in the record. Byars v. Kolodziej (1977), 48 Ill. App. 3d 1015, 1017, 363 N.E.2d 628; Bauscher v. City of Freeport (1968), 103 Ill. App. 2d 372, 375, 243 N.E.2d 650.

Plaintiff’s amended complaint contains two theories of recovery: fraud and failure of consideration. Defendant, by her motion to strike and dismiss, admitted all facts well pleaded together with all reasonable inferences which can be drawn from the facts. (Denkewalter v. Wolberg (1980), 82 Ill. App. 3d 569, 402 N.E.2d 885.) “Such a motion does not admit conclusions of law or conclusions of fact unsupported by allegations of specific facts upon which such conclusions rest.” Denkewalter, 82 Ill. App. 3d 569, 571-72.

With these principles in mind, we consider the adequacy of plaintiff’s allegation of fraud. In Soules v. General Motors Corp. (1980), 79 Ill. 2d 282, 286, 402 N.E.2d 599, our supreme court stated:

“[T]he elements of a cause of action for fraudulent misrepresentation 000 are: (1) false statement of material fact (2) known or believed to be false by the party making it; (3) intent to induce the other party to act; (4) action by the other party in reliance on the truth of the statement; and (5) damage to the other party resulting from such reliance. [Citations.] Furthermore, the reliance by the other party must be justified, i.e., he must have had a right to rely. [Citations.]”

The general rule is that a promise to perform an act, though accompanied at the time with an intention not to perform it, is not such a false representation as will constitute fraud. (Roda v. Berko (1948), 401 Ill. 335, 340, 81 N.E.2d 912; see also Steinberg v. Chicago Medical School (1977), 69 Ill. 2d 320, 334, 371 N.E.2d 634.) There is a well recognized exception to this rule where the false promise or representation of future conduct is alleged to be part of a scheme employed to accomplish the fraud. (Steinberg; Roda.) This case does not fall within the exception because the amended complaint fails to allege a scheme or any facts from which a scheme can be inferred. Furthermore, plaintiff’s amended complaint fails to allege that statements made by defendant were known or believed to be false by her.

The facts which constitute an alleged fraud must be pleaded with sufficient specificity, particularity and certainty to apprise the opposing party of what he is called upon to answer. (Younger v. Revelle (1979), 78 Ill. App. 3d 1, 4, 397 N.E.2d 221.) “To properly allege a cause of action for fraud, the pleadings must contain specific allegations of facts from which fraud is the necessary or probable inference.” (Wiersema v. Workman Plumbing, Heating & Cooling, Inc. (1980), 87 Ill. App. 3d 535, 538, 409 N.E.2d 159; Browning v. Heritage Insurance Co. (1975), 33 Ill. App. 3d 943, 948, 338 N.E.2d 912.) Under this standard, plaintiff’s conclusory allegations of fraud in the amended complaint were clearly insufficient to allege a cause of action for fraud.

We also conclude that plaintiff’s allegation in paragraph 16 of the amended complaint was not sufficient to state a cause of action based upon a failure of consideration for the relief sought. In the absence of additional circumstances such as fraud, the failure of the grantee to pay the consideration agreed upon is not a ground for avoiding or cancelling the deed. Calkins v. Calkins (1906), 220 Ill. 111, 121, 77 N.E. 102; White v. White (1960), 28 Ill. App. 2d 19, 27, 169 N.E.2d 839; 13 Ill. L. & Prac. Conveyances §22 (1955); 23 Am. Jur. 2d Deeds §67 (1965).

Accordingly, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

RIZZI, P. J., and McGILLICUDDY, J., concur.

       The motion to dismiss merely stated: “That the complaint fails to state a Cause of Action.” In Browning v. Heritage Insurance Co. (1975), 33 Ill. App. 3d 943, 946-47, 338 N.E.2d 912, the court stated: “It is not sufficient to allege merely that the complaint does not state a cause of action, without pointing out wherein it is defective so as to allow the party against whom the motion is directed an opportunity to cure the specified objection by amendment.” See also Ill. Rev. Stat. 1979, ch. 110, par. 45(2).