author: CRAVEN, J.,

text:
    Lorene Childress, Administratrix of the Estate of Gerald Childress, Deceased, Marilyn Heien and Robert Heien, Plaintiffs-Appellants, v. State Farm Mutual Automobile Insurance Company, an Insurance Corporation, and Joseph R. Carson, Defendants-Appellees.
    Gen. No. 10,949.
    Fourth District.
    July 29, 1968.

      Paul E. Karlstrom, and Hayes & Moore, of Champaign, Stanford S. Meyer, of Belleville, and Albert E. Jenner, Jr., of Chicago, for appellants.
    Stifler & Snyder, of Danville (Thomas C. Stifler, of counsel), and Webber, Balbach, Thies & Follmer, of Urbana (Charles M. Webber, of counsel), for appellees.
   CRAVEN, J.,

delivered the opinion of the court.

This appeal is to review orders entered in the circuit court of Champaign County granting the motion for summary judgment of defendant State Farm Mutual Automobile Insurance Company, denying plaintiff’s motion to reconsider, and denying the petition of Robert and Marilyn Heien to intervene. The suit was by the estate of a decedent to recover for the amount of a judgment entered against decedent in a proceeding arising out of an injury sustained by a third party, which judgment was allegedly recovered due to negligence and bad faith of the insurance company in defending or failing to defend the original suit.

While the facts are long and detailed, a chronological recital of them is necessary to a full determination of this appeal.

Jack Childress, son of Gerald Childress, on December 16, 1956, had an automobile accident with a car in which Marilyn Heien, a passenger, was injured. Jack Childress filed suit against the driver of the second car, which was settled by the insurance carrier of that car paying $4,000 to Jack Childress and the balance of its policy limit of $10,000 to the other passengers in the second car. Thereafter Marilyn Heien and Robert Heien, her father, filed suit for her injuries and expenses against Jack Childress, alleging his negligent operation of his car, and against his father, Gerald Childress, alleging that the father was negligent in allowing his son Jack, who was then a minor, to drive an automobile.

The car driven by Jack Childress was insured by Country Mutual Insurance Company. He had no insurance coverage with State Farm Mutual Automobile Insurance Company but his father, Gerald, as owner of another car not involved in the accident, was insured by State Farm. Joseph R. Carson, attorney for the Childresses, served notice on Country Mutual that they could settle the Heien suit within the policy limits.

Some four years after the accident, the Heiens’ attorney notified State Farm that it might have liability in the case as the carrier of insurance on the car of Gerald Childress. State Farm requested nonwaivers from the Childresses, reserving the right to deny coverage. Some months later, Carson, as attorney for the Childresses, mailed the executed nonwaivers to State Farm.

Thereafter, on May 31, 1961, Country Mutual paid their policy limits to the Heiens, at which time a “covenant” prepared by the Heiens’ attorney was entered into between the Heiens, the Childresses and Country Mutual. This instrument provided that Marilyn Heien and Robert Heien agree:

“. . . to limit their collection of any judgment resulting from the pending litigation to funds other than the said insurance policy of Country Mutual Insurance Company and to funds other than the personal assets of Gerald Childress and Jack Childress, expressly reserving, however, the right to pursue any pending litigation against the said individuals and to collect any judgments received therein from any insurer other than Country Mutual Insurance Company and the right to collect from Jack Childress or Gerald Childress any funds in excess of the policy limits of such other insurer or insurers which the said persons may recover for failure of the said company or companies to settle the said causes of action within the policy limits.”

Such instrument further obligated the Childresses, if judgments were returned against them, to actively pursue any remedies existing against any insurance company other than Country Mutual to discharge such judgments, including any excess liability for failure to settle within the policy limits.

On December 14, 1961, State Farm sent a notice to the Childresses and Carson, their attorney, denying liability in the case and notifying that it would not defend the suit by the Helens. The notice, sent by certified mail — return receipt requested to Gerald Childress, was not actually received by him but was returned to State Farm since the mail carrier delivering the letter found that no one answered the door when he attempted to deliver it. Although a note was left by the carrier for Gerald Childress to call at the post office for the letter, Gerald did not do so. However, the Childresses’ attorney, Carson, told Gerald of the notice and that State Farm would not defend. Carson asked Gerald Chidress if he wished Carson to continue to represent him on trial of the case and advised Gerald Childress that he did not need a lawyer as the “covenant” fully protected him. Upon reply that Childress did not want him to continue, Carson, after notice, withdrew as attorney for the Childresses. On January 29, 1962, a default was entered, the case tried before a jury, and a verdict and judgment rendered for Marilyn Heien for $500,000 and for Robert Helen for $250,000.

Thereafter, on March 16, 1962, the present suit was filed by Gerald Childress and Jack Childress against State Farm, seeking recovery of the damages of $750,000 for claimed negligence and claimed contractual breaches of duty and bad faith. The complaint consisted of a separate count for each plaintiff and alternately alleged that the State Farm policy provided protection to Gerald Childress or was ambiguous and capable of construction to extend coverage to the Childresses. It further alleged that State Farm accepted the offers of the Childresses to investigate, negotiate, settle, deny or defend the claims by accepting the nonwaiver agreements it provided to the Childresses and that it undertook the investigation and defense, and had the entire investigation and trial file of Country Mutual. The complaint further alleged that by accepting the offers in the nonwaiver agreement, State Farm assumed defense and was obligated to defend and use care, skill and good faith in the defense, whether or not coverage was afforded by its policy. It then althat State Farm was negligent by acts of commission or omission; acted in bad faith or breached an express contractual duty in failing to settle within the policy limits, failing to appear at evidence depositions, failing to use diligence in the court proceeding, and failing to appear and defend at the trial.

Upon motion to dismiss the complaint, the trial court dismissed the complaint and entered judgment. Upon appeal to this court, the judgment was reversed and remanded (Childress v. State Farm Mut. Automobile Ins. Co., 50 Ill App2d 461, 200 NE2d 537 (4th Dist 1964)), holding that plaintiffs’ complaint was sufficient to charge negligence, the plaintiffs in this court then having abandoned reliance upon policy coverage and having relied upon negligent performance or nonperformance of a duty gratuitously assumed, no consideration having been given for defendant’s alleged assumption of defense, nor any allegation that defendant agreed to make any payment or had any duty to make any payment.

Thereafter, the action was dismissed as to plaintiff Jack Childress on his own motion. Gerald Childress subsequently died and his wife, Lorene Childress, was appointed administratrix and substituted as party-plaintiff for the decedent. A count was added in the complaint against Joseph E. Carson, which still is pending on motion. The claim against Carson is not before this court, as the trial court certified there was no just cause to delay appeal on the orders here appealed.

A third amended complaint was filed, alleging substantially the same facts and charges as in the prior pleadings, and reasserting the prior alternatively pleaded charges of negligence and breaches of contractual duty. By this third amended complaint, plaintiff seeks recovery of the amount of the judgments and interest as the proximate result of one or more of the alleged negligent acts or omissions, or contractual breaches of duty by defendant.

Plaintiff filed motion for summary judgment which the trial court denied, finding that the pleadings contained triable issues of fact.

Defendant filed motion for summary judgment which the trial court granted, holding that there was a triable issue of fact as to whether defendant ever assumed the defense of the Heien suit, but that the motion was granted solely because a necessary element of the cause of action, i. e., damages, was missing.

Plaintiff’s motion to reconsider was overruled. At the time of hearing this motion, Marilyn Heien and Robert Heien, as judgment creditors of the Childresses and real parties-in-interest, filed a petition to intervene as parties-plaintiff. The court denied the petition for intervention as being untimely.

Thus, plaintiff now seeks review of the order granting defendant’s motion for summary judgment and denying plaintiff’s motion to reconsider, and the order denying the petition of intervention by Marilyn and Robert Heien.

Plaintiff-appellant contends that an insurance company which tortiously breaches an obligation to defend the insured, whether by virtue of an obligation arising under its policy contract of insurance or by virtue of an ancillary agreement (here contended to arise out of acceptance of a nonwaiver agreement), is liable for the damages sustained as a result of such breach; that such damages are measured by any judgments entered against the insured ; and that payment by the insured or his ability to pay the judgment is immaterial.

The cases cited by appellant laying down the rules of law for which she contends, are both numerous and in sharp disagreement with other cases decided involving the same subject-matter. The judges of this appellate district, sitting as judges of the Appellate Court, First District, only recently have passed upon these principles in Wolfberg v. Prudence Mut. Cas. Co. (Ill App2d) (1968).

There, in an appeal arising in a suit by the administrator of a deceased insured against the insurer to recover the excess of a judgment over policy limits entered in a separate suit against the administrator on the basis of negligence or bad faith of the insurer in defending and negotiating settlement, we recognized the doctrine of liability of an insurer to its insured in such a factual situation. We held that under Olympia Fields Country Club v. Bankers Indemnity Ins. Co., 325 Ill App 649, 60 NE2d 896 (1st Dist 1945) and Cernocky v. Indemnity Ins. Co. of North America, 69 Ill App2d 196, 216 NE2d 198 (2d Dist 1966), an insurance company may so conduct itself as to be liable for an entire judgment recovered against its insured, irrespective of its policy limits, where it acts with fraud or with bad faith in conducting or failing to conduct the defense, investigation, trial or settlement negotiations, or where it is negligent in these respects.

In the Wolfberg case, we reviewed the conflicting cases in different jurisdictions of this country on the question of whether recovery by an insured in such cases is conditioned on payment by the insured or his estate of the judgment recovered against him or it, and whether ability or inability to pay is a condition to recovery. There, we considered the cases cited here both by appellant and appellee. We there determined that the majority view in this country and the sounder rule in justice and logic was that payment or nonpayment of the judgment by the insured and his ability or inability to pay it, whether the insured was living or deceased, was not a condition precedent to recovery or a defense, and need neither be alleged nor proved.

Nevertheless, the cases on the issue of payment or nonpayment, ability or inability to pay, we deem not decisive of the present case. Here, obviously, the Childresses, both son Jack who was dismissed and the estate of the father, Gerald, were fully and effectively insulated and protected from any liability to the judgment creditors, Marilyn and Robert Heien, by reason of the covenant entered into between the Childresses, the Helens and Country Mutual Insurance Company. In no respect could the Heien judgments ever constitute any harm or damage to the Childresses, be it theoretical, factual or otherwise. By the language of this covenant, any judgments recovered by the Helens could not be collected from the Childresses. No injury, harm or damages could result to the Childresses. No issue has been raised as to whether the covenant in the form here taken violates public policy, so that we must regard the covenant as binding in all of its terms and give it effect as between the parties.

The cases cited by appellant of Krutsinger v. Illinois Cas. Co., 10 Ill App2d 344, 135 NE2d 180 (3rd Dist 1956), affd, 10 Ill2d 518, 141 NE2d 16 (1957), and Interstate Cas. Co. v. Wallins Creek Coal Co., 164 Ky 778, 176 SW 217, and the language of 7A Appleman, Insurance Law and Practice, §§ 4693 and 4694 (perm ed 1962), for the proposition that the covenant protecting the personal assets of the Childresses did not remove the element of damages, do not support this contention. Those cases were suits on risks covered by the issued policy where the duty of the insurer arose out of its contractual relation with the insured. The questions passed upon by these two cases and the material treated in the cited text arise because of such contractual relations and deal with the actions of the insurer as raising an estoppel on it to assert other provisions of its policy.

The Krutsinger case was a suit brought by the judgment creditors of the insured against one of several insurers after such plaintiffs had recovered judgments against the insured. In a separate proceeding in probate guardianship, the county court in probate had approved a settlement by the guardian as to certain other insurers of the insured, with a covenant that in case judgment was obtained in the original suit the other insurers would pay only a limited part of the judgments, leaving recovery of any balance to be obtained solely from the defendant company. We do not deem that case as analogous or controlling here, as the question of absence of damages to the insured was not involved and the plaintiffs were judgment creditors of the insured under an existing insurance policy.

A more decisive factor lies at the basis of the instant case. This is the question of relationship between plaintiff and defendant, and the duty or lack of duty existing. No contractual relation existed in the instant case, and in that further important fact this case differs entirely from the Wolfberg case. Thus, the lack of any contractual duty from defendant to plaintiff and the covenant insulating the plaintiff from all damages by the judgment persuade us that the trial court correctly entered summary judgment for defendant in the instant case, as the necessary element of damages to the plaintiff is wholly missing here.

Some contention has been made that a motion to reconsider, such as was here filed, was not a proper motion. In our view of the case, that question would not be decisive of the issues. Nevertheless, we are of the opinion that in a case where a motion for summary judgment has been allowed, since the case has not been tried by a jury, a motion for rehearing or to reconsider is appropriate under section 68.3 of the Civil Practice Act (Ill Rev Stats 1965, c 110, § 68.3), although not required. When such a motion is filed, the time for appeal does not begin to run until the court rules on the motion. Therefore, the appeal in this case was timely filed.

A further contention is made that the trial court erred in denying the petition of Marilyn and Robert Heien to intervene filed on the same day that the motion to reconsider was heard. No showing was made that the factual situation gave petitioners intervention as a matter of right or that the trial court failed to exercise proper discretion in denial of intervention under the permissive-intervention procedure of the Civil Practice Act (Ill Rev Stats 1965, c 110, § 26.1). An application to intervene must be timely, whether the petitioner seeks to intervene as of right or under the discretionary provisions of the intervention statute. Further, the question of timeliness is a matter for the discretion of the court. County of Cook v. Triangle Sign Co., Inc., 40 Ill App2d 202, 189 NE2d 25 (1st Dist 1963). In Feiertag v. Reichmann, 21 Ill App2d 215, 157 NE2d 818 (1st Dist 1959), where a complaint had been filed on April 12 to set aside deeds as clouds on the title of real estate of the plaintiff and the plaintiff had voluntarily conveyed a one-half interest in the property on the day following (April 13), the grantee sought to intervene some six months later when the plaintiff moved to dismiss the action. The trial court denied intervention as untimely, and upon appeal the Appellate Court held the matter of intervention was within the discretionary powers of the trial court and that the trial court properly exercised its discretion. In the instant case suit was filed March 16, 1962. The case proceeded through motions and arguments and dismissal of the complaint in the trial court and an appeal resulted in a reversal and remandment by this court. Thereafter there were further pleadings, motions and ultimately a judgment entered on motion for summary judgment in the trial court. Intervention was sought for the first time on July 14, 1967, the day of the hearing on plaintiff’s motion to reconsider the granting of summary judgment for the defendant. It is evident that the intervening petitioners were aware of this litigation from its inception. Certainly, the trial court did not abuse its discretion in denying the intervention as being untimely.

Other contentions raised in the case need not be considered in our view of disposition of the issues.

Finding no error in the trial court’s determinations, the judgment and orders below should be affirmed.

Judgment affirmed.

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


source: Caselaw Access Project

author: MR. JUSTICE DAVIS

license: Public Domain

text:
    Albert E. Coselman, Sr., Administrator of the Estate of Hazel Coselman, Deceased, Plaintiff-Appellant, v. Ralph Schleifer and Ann Sehleifer, Defendants-Appellees.
    Gen. No. 67-148.
    Second Judicial District.
    August 23, 1968.

      Allen S. Greene, John R. Mackay, and Corrigan, Mackay, Quetsch & O’Reilly, of Wheaton, for appellant.
    Gates W. Clancy and James S. Mills, of Geneva, for appellees.
   MR. JUSTICE DAVIS

delivered the opinion of the court.

Hazel Coselman (herein called plaintiff) brought this action against the defendants, Ralph and Ann Schleifer, to recover for injuries sustained by her while she was working in the Schleifers’ home. The plaintiff died subsequent to trial and Albert E. Coselman, Sr., Administrator of her estate, was substituted as party plaintiff. The jury awarded a verdict of $25,000 to the plaintiff; the trial court entered judgment for the defendants notwithstanding the verdict, and the plaintiff appealed.

The plaintiff did weekly cleaning work for the defendants, and had worked for them at their home in this capacity for about eight years. The occurrence out of which the injury arose took place on the landing and stairs to the basement at about 11:00 a.m., on January 22, 1965. It was raining at the time and apparently was rather dark outside. The plaintiff was on her way to the basement to get a clean bathroom rug and had nothing in her hands or arms.

The landing at the top of the stairs was approximately three by four feet. The back door permitted entry into this landing, which was two steps down from the kitchen. There was no light fixture on the landing itself; one was partially installed, but not yet completed or operable. A light switch was located on the landing which operated the basement lights. It does not appear that these lights were turned on, but the kitchen lights were on.

A gray granite cornerstone, about 4 inches thick, 10 inches high and 16 inches long, was standing on the landing, as were some empty bottles. Mr. Schleifer’s work shoes were on the steps. The plaintiff testified that she saw all of these items. A dark-colored, rubber-backed rug, containing some metallic thread, was on the landing. This rug was used as a foot cleaner upon entry to the house by the back door.

The plaintiff testified that she did not see this rug, although she was aware that it usually was there; and that she had stepped down the stairs to the basement with one foot when her other foot caught on the rug. She described it as all crumpled up, although she had not seen it.

The stairs were steep; the first step was narrow or short, and a handrail was located on the left side of the steps. The plaintiff testified that she could not reach this rail from the landing, and that when she started down the stairs to the basement, she had to stoop over because of the low ceiling clearance.

The plaintiff was familiar with the landing and stairs and their condition as described. She had been up and down the stairs innumerable times. She had not complained about the landing or stairs nor the fact that shoes and bottles normally were there and she did not feel that it was her place to do so.

She testified that as she fell she tried to grab the railing, but could not reach it; that she did not touch the stairs as she fell, but fell directly to the basement floor, striking her head and suffering severe injuries; and that she then called out for help to her husband, who was the only other person in the house. The defendants were away at the time.

There was evidence that the plaintiff, who was then seventy-two years old, had taken medication for hypertension for quite some time. Her doctor’s records indicated that she had suffered from dizziness from time to time. Part of the history taken by her doctor after the fall stated that plaintiff did not know exactly how she fell — whether she slipped or was dizzy. For purposes of this appeal, however, we assume that the plaintiff did not black out or become dizzy and fall, but rather, tripped on the rug on the landing as heretofore related.

Whether the trial court was correct in overturning the verdict of the jury must be tested by the standard set forth in Pedrick v. Peoria & Eastern R. Co., 37 Ill2d 494, 510, 229 NE2d 504 (1967); that is, whether all of the evidence, when viewed in its aspect most favorable to the plaintiff, so overwhelmingly favors the defendants that no contrary verdict based on that evidence could ever stand.

The parties agree that the common law does not make an employer a guarantor of the safety of his employees. It does, however, require that an employer provide his employee a reasonably safe place in which to work. Those risks which an employee, in turn, assumes, are spelled out in Mack v. Davis, 76 Ill App2d 88, 221 NE2d 121 (1966), at page 97:

“An employee, when he engages in employment, assumes ‘the risks of known dangers, and such as are so obvious that knowledge of their existence is fairly to be presumed.’ Chicago & E. I. R. Co. v. Heerey, 203 Ill 492, 497, 68 NE 74 (1903); also see: Stone v. Guthrie, 14 Ill App2d 137, 148, 149, 144 NE2d 165 (1957). However, such ordinary risks do not include the negligence of the employer. Kolfski v. Railroad Supply Co., 235 Ill 146, 156, 85 NE 274 (1908); Stone v. Guthrie, supra. The employer must use reasonable care to provide for the safety of his employees. If the employer fails to exercise such care, the risks resulting are said to be extraordinary and are not assumed by the employee unless he knows of the risks and understands them, or ought to know and understand them. Wheeler v. Chicago & W. I. R. Co., 267 Ill 306, 319, 108 NE 330 (1915); Olsen v. Pigott, 39 Ill App2d 191, 198, 188 NE2d 361 (1963).
“The employee thus assumes all ordinary risks and all extraordinary ones of which he knows, or ought to know, and the dangers of which he appreciates, or ought to appreciate and of which he makes no complaint. Stone v. Guthrie, 14 Ill App2d 137, 149, 150,144 NE2d 165 (1957).”

During the eight years the plaintiff had worked for the defendants, there had never been a light on the landing between the back door and the basement steps. The only light in the landing was that which came through the glass in the back door, and that from the kitchen and the basement lights. As the plaintiff pointed out, the light available from the glass in the back door varied, depending upon the conditions outside. It is apparent from the plaintiff’s testimony that even on a dark day this light was sufficient for the plaintiff to see the bottles and cornerstone on the landing and the shoes on the stairs.

An employee assumes all of the usual and customary risks of his or her employment. In doing household work for others, this includes risks attendant to the unusual physical characteristics of the particular household which are known or obvious to the employee. It is undisputed that the defendants’ home had a basement stairway that certainly was less than ideal. The plaintiff’s duties included going up and down this stairway, and she was fully aware of the state of the lighting on the landing and the condition of the stairs. She had made no complaint and had offered no objection thereto.

The plaintiff also was aware of the throw rug which was usually on the landing floor. She described the landing, the stairway and the items on the landing, including the rug, in her testimony. While throw rugs always constitute some hazard, their use does not mean that the employer has failed to provide a reasonable safe place in which to work.

The risks involved in the use of the landing and stairs were not only those which were normally incident to such employment, but were also those which were known and obvious to the plaintiff; and it was proper for the trial court to hold as a matter of law that such risks were assumed by her. Kelly v. Fletcher-Merna Co-operative Grain Co., 29 Ill App2d 419, 425-427 incl., 173 NE2d 855 (1961); Stahl v. Dow, 332 Ill App 233, 242, 243, 74 NE2d 907 (1947); Huff v. Illinois Cent. R Co., 279 Ill App 323, 330 (1935); Wehrhahn v. Stern Ullman Co., 178 Ill App 363, 366 (1913).

The case at bar, unlike those cited by the plaintiff, does not involve an employee obeying a direct order on command of his employer to perform a dangerous task (Illinois Steel Co. v. Schymanowski, 162 Ill 447, 44 NE 876 (1896); Chicago Anderson Pressed Brick Co. v. Sobkowiak, 148 Ill 573, 36 NE 572 (1894)) ; or a direction to use a dark passageway (Miller v. Russell, 302 Ill App 165, 23 NE2d 775 (1939)), or to follow a course unknown to the employee (Packard v. Kennedy, 4 Ill App2d 177, 124 NE2d 55 (1955)).

The question of the contributory negligence of the plaintiff is distinct and apart from that of assumption of risk. Kelly v. Fletcher-Merna Co-operative Grain Co., supra 425, 426; Chicago & E. I. R. Co. v. Heerey, 203 Ill 492, 502, 68 NE 74 (1903). The plaintiff testified that she did not see the rug but knew that she had tripped on the rug because it was usually there; however, there was sufficient light for her to see the bottles, shoes and cornerstone, which were all smaller than the rug. The testimony and exhibits indicate that the rug contrasted with the linoleum which covered the floor.

The plaintiff knew of the condition of the landing and stairs. By her own testimony, it is clear that she could or should have seen the rug had she been attentive. Under these circumstances, we believe that the plaintiff was also guilty of contributory negligence as a matter of law. Pedrick v. Peoria & Eastern R. Co,, supra, 503, 510; Pantlen v. Gottschalk, 21 Ill App2d 163, 170, 157 NE2d 548 (1959); Day v. Barber-Colman Co., 10 Ill App2d 494, 511,135 NE2d 231 (1956).

Thus, we conclude that the trial court was correct in granting the judgment notwithstanding the verdict not only on the basis that the plaintiff assumed the risks involved, but also on the ground that she was guilty of contributory negligence. Consequently, the judgment is affirmed.

Judgment affirmed.

ABRAHAMSON, P. J. and SEIDENFELD, J., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Robert E. Mundorf, Defendant-Appellant.
    Gen. Nos. 67-153, 67-154. (Consolidated.)
    Second District.
    May 17, 1968.
    Rehearing denied and supplemental opinion Sept. 12, 1968.

      S. M. Del Principe, of Chicago, for appellant.
    William V. Hopf, State’s Attorney of DuPage County, of Wheaton, and Kevin P. Connelly, Assistant State’s Attorney, for appellee.
   MR. JUSTICE DAVIS

delivered the opinion of the court.

The defendant was charged with driving while under the influence of intoxicating liquor in violation of the Uniform Act Regulating Traffic on Highways (Ill Rev Stats 1965, c 95%, par 144), and with operating a motor vehicle after suspension of license in violation of the Drivers License Act (Ill Rev Stats 1965, c 95*4, par 6-303). He was tried by a court without a jury, found guilty of both charges and was sentenced to serve 120 days at Vandalia State Farm for each offense, the sentences to run consecutively.

In this appeal, the defendant contends that the findings of guilty are contrary to the evidence, and that the State did not prove him guilty beyond a reasonable doubt on either charge. No other issues are raised.

The arresting officer, State Trooper Dixon, testified that he came upon the car in question on the East-West Tollway at about 3:15 a. m., on June 28, 1967; that it was raining hard; that the car was in the westbound outside lane with the headlights and brake lights on, the windshield wipers off, the ignition on but the motor not running, and in the driving gear; that the defendant was lying over the steering wheel with his foot on the brakes; and that no one else was in the car or in the vicinity.

The trooper testified that he shook the defendant a long time to awaken him; that he smelled alcohol; that the defendant’s clothes were disarranged; that the defendant told him that he had not been driving, and that two other men, who had taken off through the field, had been driving; that later he stated his secretary had been with him; that the defendant cursed him and accused him of stealing his billfold, which was later found in his inside coat pocket; and that, upon learning the defendant’s name, he called for help and pulled the car over on the shoulder.

Trooper Smith, who answered the call for help, aided the defendant in walking from the car in question to the police car. The two troopers took the defendant to the police maintenance building. They testified that the defendant refused to take a breathalyzer test or to perform tests requiring “the function of his body”; that he could barely walk, his face was flushed, his eyes bloodshot and his balance unstable; and that there was a strong odor of alcohol about him. Both troopers were of the opinion that the defendant was under the influence of intoxicating liquor.

The defendant testified that he had not driven the car that night; that he was angry and the flushed condition of his face was natural; that his right eye is glass and could not be bloodshot; and that he asked to take the various tests to establish that he was not intoxicated, but the troopers did not answer him.

He also testified that his wife had picked him up in Chicago early in the evening; that he had one bottle of beer at a bar sometime between 5:00 and 6:00 p. m.; that he and his wife had been at a friend’s home until 1:00 or 1:30 a. m., where he was served some coffee and one beer; and that from there, his wife drove to a bar, which was closed. He stated that his wife then drove to the tollway to go home; that they had been arguing and she finally pulled off on the shoulder of the tollway and left him there; that he thought she was kidding and got out of the car to look for her, but could not find her; and that he then went back to the car and fell asleep. He also stated that he never sat on the driver’s side of the car; that he turned the ignition on; and that the radio and parking lights were on.

The defendant’s wife testified that she and her husband left their friend’s house at about 2:00 a. m., and drove on the tollway; that she had not observed her husband drink any alcoholic beverage; that they had been arguing; that she drove the car on the shoulder and left her husband in it; that she left the keys in the car, the gear in park, and the parking lights on; and that she thought her husband was asleep. She stated that a man and woman who were strangers picked her up and took her home, where she arrived at approximately 3:00 a. m.

She further testified that she was wearing high-heeled shoes; that it was not raining when she left the car; and that she parked the car near the Wheaton-Naperville exit — approximately one or two miles from her home. She said that the car was at the same location when the State troopers took her back to it after the defendant had been arrested.

The defendant testified that it had drizzled occasionally that night, and placed the car at the same location as did his wife.

The troopers testified that it was raining heavily during the hours in question. Further, they both testified that the car was at milepost 10 on the tollway, and that the Naperville exit is at milepost 13 — approximately three miles further west.

The State and the defendant agree that to prove the corpus deliciti, the State must prove beyond a reasonable doubt both that the defendant drove the motor vehicle at the time and place in question, and that he was then and there under the influence of intoxicating liquor. People v. Miller, 23 Ill App2d 352, 356, 163 NE2d 206 (1960).

Direct evidence is not necessary to prove the corpus delicti. If all of the evidence establishes that a crime has been committed and that the defendant committed it, it is, of course, sufficient. If the evidence is all or largely circumstantial, it should be sufficiently compelling to produce a moral and reasonable certainty that the crime was committed and that the defendant committed it. People v. Schulewitz, 87 Ill App2d 331, 336, 337, 231 NE2d 678 (1967); People v. Garnier, 20 Ill App2d 492, 494, 156 NE2d 613 (1959). Where the circumstances can be explained upon a reasonable hypothesis consistent with innocence and leave serious and grave doubt of guilt, a conviction is improper. People v. Magnafichi, 9 Ill2d 169,173,137 NE2d 256 (1956).

The evidence in the case at bar is largely circumstantial. It is not such, however, as to leave us with the belief that there is a “reasonable” hypothesis consistent with innocence. The trial judge apparently found it difficult to believe that the defendant’s wife drove the car, parked it on the shoulder of the tollway, left the car and her husband about 2:00 a. m., and then set out to walk home in high-heeled shoes, via the tollway, a distance of one or two miles. Even if she were angry with her husband, it does not seem reasonable that she would leave the car and her husband asleep in it, and start to walk home at that hour of the night.

Certainly, the trial court could be justified in believing the troopers’ testimony as to the location of the car with reference to the Naperville exit and the weather conditions at the time. People v. Rossolille, 38 Ill2d 316, 321, 231 NE2d 585 (1967); People v. Sims, 32 Ill2d 591, 595, 208 NE2d 569 (1965); People v. Steenbergen, 31 Ill 2d 615, 620, 203 NE2d 404 (1965). These factors make it even more difficult to give credence to the testimony of the defendant’s wife with reference to leaving the car to walk home, via the tollway, some five miles distant in the early morning hours, and in a heavy rain.

Even if the defendant’s version of who had been driving were accepted, the trooper testified that the car was stopped in the driving lane when he came upon it. If the defendant’s wife had driven the car and parked it on the shoulder, the car somehow got into the driving lane after the wife left the car. No other persons were in the vicinity. If the car had been parked on the shoulder, and the officer later found it in the outside, westbound traffic lane, with the defendant asleep, slumped over behind the wheel with the ignition and lights on, a reasonable inference would be that the defendant drove it there. People v. Schulewitz, supra, 337.

The evidence in this case justifies the finding that the defendant was intoxicated. In People v. Gamier, supra, at page 494 the court stated: “(O)bservation of defendant in the act of driving while intoxicated is not an indispensable requirement for conviction under section 47 of the Traffic Act”; and at page 495 further stated: “Generally, circumstantial evidence which produces a reasonable and moral certainty that the accused committed the crime is sufficient to justify a conviction.”

There was a great deal of conflict in the evidence presented before the court. Apparently, the trial court found it difficult to believe some of the testimony and, it seems, with good reason. There was ample evidence to establish both that the defendant drove the vehicle at the time and place in question and while under the influence of intoxicating liquor. There is no dispute with reference to the fact that the defendant did not have a valid driver’s license on June 28,1967.

It was for the trial court to weigh the testimony and determine the credibility of the witnesses. It had the opportunity to observe the witnesses, and in the absence of strong evidence to the contrary, we will not substitute our evidentiary conclusions for those of the trial court.

The judgments of conviction are affirmed.

Judgments affirmed.

MORAN and SEIDENFELD, JJ., concur.

Supplemental Opinion on Denial of Petition fob Rehearing

Upon petition for rehearing the defendant for the first time has attacked the propriety of the consecutive sentences of 120 days at the Vandalia State Farm for the respective offenses of driving while under the influence of intoxicating liquor and of operating a motor vehicle after the suspension of his license. He now contends that each of these offenses arose out of the same act; and that the imposition of consecutive sentences for each of these offenses would violate section 1-7 (m) of the Criminal Code (Ill Rev Stats 1965, c 38, par 1-7 (m)), as well as his constitutional rights. He cites City of Chicago v. Hill (Ill2d), 238 NE2d 403 (1968); In re Hayes (Cal), 442 P2d 366 (1968); and other Illinois cases, in support of his contention.

In the following Illinois cases cited by the defendant, the offenses charged arose out of the same conduct: City of Chicago v. Hill, supra, — obstruction of traffic and disorderly conduct — the unlawful blocking of the intersection; People v. Squires, 27 Ill2d 518, 190 NE2d 361 (1963) — burglary and larceny — the unlawful taking of the same merchandise; People v. Duszkewycz, 27 Ill2d 257, 189 NE2d 299 (1963) — rape and incest — the unlawful carnal knowledge of the same person; People v. Schlenger, 13 Ill2d 63, 147 NE2d 316 (1958) — armed robbery and grand larceny — the unlawful taking of the same property; and People v. Weaver, 93 Ill App2d 311, 236 NE2d 362 (1968) — rape and aggravated battery — the unlawful aggression against the will of the victim. In People v. Weaver, supra, the court, while holding that rape and aggravated battery arose out of the same conduct, distinguished rape and burglary as offenses not arising from the same course of conduct, but from two separate and distinct acts which gave rise to separate and distinct substantive offenses though occurring at relatively the same time.

We hold that the two offenses in the case at bar —driving while under the influence of intoxicating liquor and operating a motor vehicle after suspension of license — do not arise out of the same conduct. The common denominator is not the act of driving a motor vehicle. That act, considered alone, is not unlawful. To render that act unlawful, the concurrence of intoxication in the one instance, and the licensing act violation in the other, are required. The resultant offenses, therefore, arise from separate and unrelated acts of misconduct. This distinguishes this case from the cases cited by the plaintiff.

There would appear to be no common denominator between the two acts involved in the case at bar. The offenses did not result from the same conduct. Rather, the defendant committed two separate and distinct acts of misconduct at the same time, which resulted in the separate and distinct substantive offenses charged. Consequently, section 1-7 (m) of the Criminal Code Ill Rev Stats 1965, c 38, par 1-7 (m)) does not proscribe consecutive sentences and the constitutional rights of the defendant are not violated.

In the case of In re Hayes, supra, the majority of the California Supreme Court disallowed separate sentences for a defendant charged with driving while his license was revoked and drunken driving. It held that while the subjective elements both of driving without a license and of drunken driving were present, the defendant committed only one act — that of driving the vehicle. However, we are more favorably impressed by the rationale of the minority opinion which held that the conduct prohibited by the Code was driving without a license and driving while intoxicated; that the subjective element is merely the defendant’s intent to drive or knowledge that he is driving; and that these two offenses do not share a common element of physical conduct within the meaning of the Code.

In his petition for rehearing, the defendant also urges as error that the court’s opinion has completely disregarded the testimony of the defendant and his witnesses. Such assertion is without merit. Under the law, it is the province of the trier of fact to weigh the evidence and determine the credibility of witnesses. Where the evidence on an issue is conflicting but legally sufficient if the State’s witnesses are believed, the question is for the trier of fact to determine. People v. Jennings, 84 Ill App2d 33, 39, 228 NE2d 566 (1967); People v. Ray, 80 Ill App2d 310, 316, 225 NE2d 467 (1967). This determination includes belief or disbelief of a witness’ testimony as well as resolving conflicts in the evidence. The trial court observed the witnesses, their candor or evasiveness, and their demeanor while testifying, and we will not interfere with its findings merely because there were conflicts in the testimony. People v. Castanza, 92 Ill App2d 419, 236 NE2d 251,257 (1968).

For the foregoing reasons, we affirm the judgments of conviction and the consecutive sentences as set forth in our original opinion.

Judgments affirmed.

MORAN and SEIDENFELD, JJ., concur.


author: MR. JUSTICE DAVIS MORAN, J.,

text:
    Mabel M. Graham, Plaintiff-Appellant, v. General U. S. Grant Post No. 2665, a VFW of the United States, a Corporation, Rossetta Young Allan, De Loss Allan and Ray Glick, d/b/a Silver Dollar Tap, and Edward J. Bussan, Mary Bussan, and Anne Herman, d/b/a Gay Nineties, Defendants-Appellees.
    Gen. No. 67-169.
    Second Judicial District.
    July 24, 1968.
    Rehearing denied and opinion modified September 19, 1968.

      MORAN, J., dissenting.
    Roszkowski and Paddock, of Rockford, for appellant.
    Nack, Richardson & Nack, of Galena, for appellees.
   MR. JUSTICE DAVIS

delivered the opinion of the court.

On the motion of the defendants — the owners and operators of three taverns located at Galena, Illinois — , the Circuit Court of the Fifteenth Judicial Circuit entered an order dismissing the plaintiff’s amended complaint. The plaintiff appealed.

The pertinent facts as alleged in the amended complaint are: On May 1, 1966, the defendants were in the business of selling liquor at retail at Galena, and sold liquor to Jack Schleicher, which caused his intoxication in whole or in part. At nine o’clock that evening in Grant County, Wisconsin, near the Illinois-Wisconsin line, while intoxicated, and as a direct result thereof, Schleicher drove his automobile in such a manner to cause it to collide with the automobile driven by plaintiff, and thereby severely injured her.

Count I alleged a cause of action against the defendants under section 14 of Article VI of the Liquor Control Act, commonly known as the Dram Shop Act (Ill Rev Stats 1965, c 43, par 135). Count II alleged a common-law negligence action which specified five negligent acts or omissions of the defendants in serving liquor to Schleicher while he was intoxicated.

At the oral argument of the case it was agreed that Illinois was the place of residence of the plaintiff, the individual defendants, and Schleicher, and was the sole place of business of the corporate defendant.

The issues presented are:

(1) Whether the owners and operators of the three Illinois taverns are liable under the Illinois Dram Shop Act for injuries inflicted upon the plaintiff, an Illinois resident, by a drunken driver, also a resident of Illinois, whose intoxication resulted from the purchase of alcoholic beverages from the Illinois taverns, notwithstanding the fact that the accident occurred a short distance within the boundaries of the State of Wisconsin; and
(2) Whether a common-law cause of action may lie against the three Illinois tavern owners and operators that knowingly and negligently served alcoholic beverages to an intoxicated person who thereafter inflicted injuries upon the plaintiff.

The first issue requires a determination of the extraterritorial effect of the Illinois Dram Shop Act; and the resolution of the second issue will depend upon whether the Illinois Courts are required to apply Wisconsin law, or may, in view of the fact that the plaintiff and the defendants are all residents of this State, apply the common law of this forum in determining whether a common-law cause of action exists.

Section 14 of Article VI of the Liquor Control Act provides in pertinent part:

“Every person who is injured in person or property by any intoxicated person, has a right of action in his own name . . . against any person who by selling or giving alcoholic liquor, causes the intoxication, in whole or in part of such person.”

And Section 1 of Article I of the Liquor Control Act provides :

“This Act shall be liberally construed, to the end that the health, safety and welfare of the People of the State of Illinois shall be protected and temperance in the consumption of alcoholic liquors shall be fostered and promoted by sound and careful control and regulation of the manufacture, sale and distribution of alcoholic liquors.” (Ill Rev Stats 1965, c 43, par 94.)

It would thus appear that the Illinois Dram Shop Act is primarily an exercise of police power by the State, whereby the legislature sought to inhibit the sale of liquor to the extent that it causes intoxication, and that to achieve this, a penalty in the form of absolute liability is inflicted. The purpose of the Act seems to embrace both the regulation of the liquor traffic and redress for injury.

In Hernandez v. Diaz, 31 Ill2d 393, 202 NE2d 9 (1964), at page 399, the court stated:

“The statute was designed to give a substantial remedy and should be allowed to have effect according to its natural and plain meaning. Section 1 of article 1 of the Liquor Control Act states that the act shall be liberally construed to the end that the health, safety and welfare of the people of the State of Illinois shall be protected. Ill Rev Stats 1963, c 43, par 94.
“It is clear that the legislature had the intention of protecting innocent parties from the acts of intoxicated persons.”

The court, in Hernandez, liberally construed the Act by holding that if an intoxicated person commits an act which has a direct causal relation to the injury of another, the injury is caused “by” the intoxicated person. The court illustrated the effect of its holding by stating that if a drunken driver causes an innocent driver to leave the highway and injure a pedestrian, the pedestrian has been injured by the intoxicated person as much as if his vehicle had struck the injured person.

In Lichter v. Scher, 11 Ill App2d 441, 138 NE2d 66 (1956), the court, in discussing the purpose of the Act, stated at page 452:

“The Dram Shop Act is unique. . . . , it is designed to discipline a legal but ill-favored trade. While it applies a remedy to mitigate the evils and dangers that flow from the liquor traffic, it is a remedy not necessarily based on fault or negligence. The owner of the premises or anyone who leases them, as well as the dramshop keeper, may become liable even though the sale was made to a customer when he was wholly sober, if the customer thereafter by drinks purchased elsewhere became intoxicated. It is therefore penal in a severe sense in its obvious purpose of subjecting to strict discipline those who embark in the liquor traffic and even those who as lessors or owners permit premises to be so used. It is true that in some cases courts have described the Act, insofar as it relates to damages, as remedial; that is to say, recovery is intended to reimburse for losses sustained by the evils growing out of the liquor traffic. This does not change the essentially disciplinary and regulatory character of the Act.”

However, the court in Howlett v. Doglio, 402 Ill 311, 83 NE2d 708 (1949), at page 318, stated:

“Although the Dram Shop Act is penal in character and should be strictly construed, (Cruse v. Aden, 127 Ill 231; Meidel v. Anthis, 71 Ill 241,) the legislation is, at the same time, remedial and should be so construed as to suppress the mischief and advance the remedy. (Citations.) ”

In Miller v. Owens-Illinois Glass Co., 48 Ill App2d 412, 420, 199 NE2d 300 (1964) and in cases cited therein, the court stated that the Illinois Dram Shop Act is in derogation of the common law, and like other such statutes, should be strictly construed. Thus, the expressions of our courts with reference to how the Act should be construed, are, at least, ambiguous.

The Supreme Court of Illinois has not determined whether the Illinois Dram Shop Act has extraterritorial effect, other than by denial of petition for leave to appeal in Colligan v. Cousar, 38 Ill App2d 392, 187 NE2d 292 (1963), and in Eldridge v. Don Beachcomber, Inc., 342 Ill App 151, 95 NE2d 512 (1950). The Appellate Court, however, has repeatedly held that the Dram Shop Act has no such effect. Colligan v. Cousar, supra, 403; Butler v. Wittland, 18 Ill App2d 578, 583, 153 NE2d 106 (1958); Eldridge v. Don Beachcomber, Inc., supra, 154.

In Rubitsky v. Russo’s Derby, Inc., 70 Ill App2d 482, 216 NE2d 680 (1966), which was decided by this court, we stated as obiter dictum, at page 484:

“The law, often criticized in Illinois, is that the Dram Shop Act has no extraterritorial effect and hence would not apply to a situation, such as this one, where the injuries were sustained beyond the jurisdiction of the state.”

Butler and Eldridge were cited in Rubitsky as authority for this legal proposition. Eldridge does not recite the place of residence of the plaintiff, while in Butler, the parties litigant were all Illinois residents. Thus, Eldridge appears to have differed factually from the case at bar in which the plaintiff, the defendants, and the drunken driver, were all Illinois residents.

In Eldridge, the court followed Goodwin v. Young, 34 Hun (NY) 252, an 1884 decision, wherein a resident of Vermont sued the operator of a New York dramshop, who sold the plaintiff’s servant liquor, which caused his intoxication, the neglect of plaintiff’s team of horses and the death of one horse as the result thereof, upon the servant’s return to Vermont. The court, in Eldridge, treated the act of injury to the plaintiff as the tortious conduct which gave rise to liability and held that since the injury occurred outside of Illinois, the Illinois Dram Shop Act was not applicable. The court did not consider the sale of liquor to be wrongful in that at common law it was not a tort either to sell or give away liquor to “a strong and able-bodied man.” Howlett v. Doglio, supra, 318; Cruse v. Aden, 127 Ill 231, 234, 20 NE 73 (1889).

Eldridge also relied on the rule of statutory construction announced in Union Bridge & Construction Co. v. Industrial Commission, 287 Ill 396, 398-400 incl., 122 NE 609 (1919) and in Dur-Ite Co. v. Industrial Commission, 394 Ill 338, 348, 349, 68 NE2d 717 (1946), where suits were brought under the Illinois Workmen’s Compensation and the Occupational Diseases Act, respectively. In each case, the petitioner entered into a contract of employment in Illinois but was injured or contracted an occupational disease in another state, and the court held that there was no cause of action in Illinois because the Acts had no extraterritorial effect. The court raised the presumption that where a statute is silent as to its extraterritorial effect, it is presumed to have none.

As originally enacted, the title of the 1913 Workmen’s Compensation Act omitted any reference to injuries or death suffered outside the State. By amendment effective July 1, 1925, the title to the 1913 Act was amended by inserting immediately following the words “within this State,” the phrase: “and without this State where the contract of employment is made within this State,” and in 1951 a complimentary amendment was added to the Act as section 1 (b) (2) (Ill Rev Stats 1951, c 48, par 138.1(b) (2)), which defined the term “employee” as:

“Every person in the service of another under any contract of hire, express or implied, oral or written, including persons whose employment is outside of the State of Illinois where the contract of hire is made within the State of Illinois, . . . .”

Thus, the legislature acted to remove the limitation placed on the Act by the Union Bridge case which was decided in 1919; and the Supreme Court has held that the 1951 Act was not unconstitutional in that a law effective in this State may create rights and liabilities arising from acts occurring outside of the State. Kennedy-V anSaun Manufacturing & Engineering Corp. v. Industrial Commission, 355 Ill 519, 523, 189 NE 916 (1934); Beall Bros. Supply Co. v. Industrial Commission, 341 Ill 193, 199, 173 NE 64 (1930).

The Workmen’s Occupational Diseases Act does not provide compensation for disability and death occurring without the State even though the contract of employment was made within the State. Dur-Ite Co. v. Industrial Commission, supra. Thus, the same legislature which acted rather promptly to give extraterritorial effect to the Workmen’s Compensation Act, has allowed 17 years to pass without amending the Workmen’s Occupational Diseases Act to accomplish such end. However, the Occupational Diseases Act has the same policy and purpose as the Compensation Act. The divergent action of the legislature with reference to these similar acts would seem to substantially weaken the presumption rationale of the Eldridge decision.

Accordingly, it would seem unrealistic to presume that when the legislature amended the Dram Shop Act in 1955, that by silence it intended to approve the Eldridge construction of the Act. As pertinently stated in Nudd v. Matsoukas, 7 Ill2d 608, 131 NE2d 525 (1956), at page 615: “We are indeed treading on dangerous ground when we purport to judge the judicial soundness of our prior opinions by the presence or absence of corrective.legislation.”

A construction of the Illinois Dram Shop Act as a regulatory measure and as an exercise of police power by the legislature which would warrant the allowance of a cause of action in Illinois, regardless of where the injury occurred, is not without analogous precedent. In Val Blatz Brewing Co. v. Gerard, 201 Wis 474, 230 NW 622 (1930), the court noted that the Wisconsin Act “contains no language from which it may be inferred that its application was intended to be limited to injuries which occur within the state,” and at page 625 the court stated:

“. . . The State has such an interest in the welfare and protection of its citizens and of those dependent upon them that it may, in the exercise of the police power extend the protection of its Compensation Act to citizens of the state who are injured while performing service outside its boundaries.”

The Illinois Dram Shop Act created liability in an area where none existed at common law. Howlett v. Doglio, supra; Cruse v. Aden, supra. Wisconsin has no comparable Dram Shop Act and under Wisconsin law there is no common-law liability for the sale or gift of liquor to an able-bodied man. Thus, absent a holding that the Illinois Dram Shop Act has extraterritorial effect and that we will not follow the existing conflicts rules of tort in multistate situations the plaintiff will suffer because the legislature, through inadvertency or lack of foresight, failed to except the statute from the operation of such conflict of law rules, or to give the statute extraterritorial operation.

We believe that the wrong contemplated by the Act, at least to the extent that it is regulatory in nature, is consummated when an owner or operator of a tavern sells or gives liquor to any person which causes the intoxication of such person, in whole or in part. Thus, all contributing sales become wrongful at the instant the intoxication results, and the wrongful conduct, at least from the regulatory aspect, is then complete. Under this view, the location of any injury caused by the intoxication, either within or without the State, is irrelevant. If a cause of action is denied because of the rule of extraterritoriality, a defendant is allowed to offend the Act and yet escape its penalties, and the injury or damage to one whom the Act is designed to protect remains unredressed.

If we give extraterritorial effect to the Act, the result creates a conflict with the traditional choice of law rule, found in the original Restatement of Conflict of Laws (§ § 377 and 378), and followed by the Illinois Courts (see: Opp v. Pryor, 294 Ill 538, 540, 128 NE 580 (1920); Millsap v. Central Wisconsin Motor Transp. Co., 41 Ill App2d 1, 8, 189 NE2d 793 (1963); Colligan v. Cousar, supra; Butler v. Wittland, supra). Such rule has been lex loci delicti — that the substantive rights and liabilities arising out of a tortious occurrence are determined by the law of the place of the tort. The rationale of the rule is that its mechanical simplicity, with the assumed predictability of results as a corollary, is of first importance.

In Babcock v. Jackson, 12 NY2d 473, 240 NYS2d 743, 191 NE2d 279 (1963), the court, in considering such rule, at page 281 stated:

“It had its conceptual foundation in the vested rights doctrine, namely, that a right to recover for a foreign tort owes its creation to the law of the jurisdiction where the injury occurred and depends for its existence and extent solely on such law. (See Hancock, Torts in the Conflict of Laws (1942), pp 30-36; Reese, The Ever Changing Rules of Choice of Law, Nederlands Tijdschrift Voor International Recht (1962), 389.) Although espoused by such great figures as Justice Holmes (see Slater v. Mexican Nat. R. Co., 194 US 120, 24 S Ct 581, 48 L Ed 900) and Professor Beale (2 Conflict of Laws (1935), pp 1286-1292), the vested rights doctrine has long since been discredited because it fails to take account of underlying policy considerations in evaluating the significanee to be ascribed to the circumstance that an act had a foreign situs in determining the rights and liabilities which arise out of that act. ‘The vice of the vested rights theory/ it has been aptly stated, ‘is that it affects to decide concrete cases upon generalities which do not state the practical considerations involved.’ (Yntema, The Hornbook Method and the Conflict of Laws, 37 Yale LJ 468, 482-483.) More particularly, as applied to torts, the theory ignores the interest which jurisdictions other than that where the tort occurred may have in the resolution of particular issues. It is for this very reason that, despite the advantages of certainty, ease of application and predictability which it affords (see Cheatham and Reese, Choice of the Applicable Law, 52 Col L Rev 959, 976), there has in recent years been increasing criticism of the traditional rule by commentators and a judicial trend towards its abandonment or modification.”

Tentative Draft No. 9 of section 379 of the Restatement of Conflict of Laws has recognized the growing dissatisfaction with the application of the rule of lex loci delicti in multistate tort situations. In its present form it provides :

“(1) The local law which has the most significant relationship with the occurrence and with the parties determines their rights and liabilities in tort.
“(2) Important contacts that the forum will consider in determining the state of the most significant relationship include:
“(a) The place where the injury occurred.
“ (b) The place where the conduct occurred.
“(c) The domicile, nationality, place of incorporation and place of business of the parties.
“(d) The place where the relationship of the parties is centered.
“(3) In determining the relative importance of the contacts, the forum will consider the issues, the character of the tort, and the relevant purposes of the tort rules of the interested states.” (See: Balts v. Balts, 273 Minn 419, 142 NW2d 66 (1966) at page 69.)

In Griffith v. United Air Lines, Inc., 416 Pa 1, 203 A2d 796 (1964), at page 801, the court stated:

“This place of the injury rule, sometimes termed the lex loci delicti rule, has been the subject of severe criticism in recent years. See, e. g., Restatement (Second), Conflict of Laws, Introductory Note No. 1 (Tent Draft No. 9, 1964); Stumberg, Conflict of Laws 199-212 (3d ed 1963); Cavers, ‘A Critique of the Choice-of-Law Problem,’ 47 Harv L Rev 173 (1933); Cheatham & Reese, ‘Choice of the Applicable Law,’ 52 Colum L Rev 959 (1952); Currie in ‘Comments on Babcock v. Jackson, A Recent Development in Conflict of Laws,’ 63 Colum L Rev 1212, 1233 (1963) (hereafter ‘Comments on Babcock v. Jackson’) ; Ehrenzweig, ‘The “Most Significant Relationship” in the Conflicts Law of Torts,’ 28 Law & Contemp Prob 700 (1963); Harper, ‘Policy Bases of the Conflict of Laws: Reflections on Rereading Professor Lorenzen’s Essays,’ 56 Yale LJ 1155 (1947); Morris, ‘The Proper Law of a Tort,’ 64 Harv L Rev 881 (1951); Reese in ‘Comments on Babcock v. Jackson,’ 63 Colum L Rev 1212, 1251 (1963); Traynor, ‘Is This Conflict Really Necessary?’ 37 Texas L Rev 657 (1959); and authorities cited in 46 Cornell LQ 637, 640, n 20 (1961) and 62 Mich L Rev 1358, n 3 (1964).
“The basic theme running through the attacks on the place of the injury rule is that wooden application of a few overly simple rules, based on the outmoded ‘vested rights theory,’ cannot solve the complex problems which arise in modem litigation and may often yield harsh, unnecessary and unjust results.”

The above decisions and the treatises referred to therein identify many other choice influencing considerations which we regard as more significant than predictability of results. Also see: Wilcox v. Wilcox, 26 Wis2d 617, 133 NW2d 408 (1965); Schmidt v. Driscoll Hotel, 249 Minn 376, 82 NW2d 365 (1957); Kuchinic v. McCrory, 422 Pa 620, 222 A2d 897 (1966); Zucker v. Vogt, 200 F Supp 340 (1961); Kilberg v. Northeast Airlines, Inc., 9 NY2d 34, 211 NYS2d 133, 172 NE2d 526 (1961); Grant v. McAuliffe, 41 Cal2d 859, 264 P2d 944 (1953).

The Cheatham & Reese summary of nine policy factors affecting choice-of-law rules and results include the basic factors from which any analysis of choice-influencing considerations must commence. They are:

“(1) The needs of the interstate and international systems;

“(2) A court should apply its own local law unless there is good reason for not doing so;

“(3) A court should seek to effectuate the purpose of its relevant local law rule in determining a question of choice of law;

“(4) Certainty, predictability, uniformity of result; “(5) Protection of justified expectations;

“(6) Application of the law of the state of dominant interest;

“(7) Ease in determination of applicable law, convenience of the court;

“(8) The fundamental policy underlying the broad local law field involved;

“ (9) Justice in the individual case.”

(See: Cheatham & Reese, Choice of the Applicable Law, 52 Columbia L Rev 959 (1952).) Other eminent authors, referred to in Griffith v. United Air Lines, Inc., supra, have expanded or restricted the list of factors which they consider relevant in the choice-of-law process. We believe that an identification of the choice-influencing considerations will aid in the ultimate achievement of predictability for some type of transactions. Thus, it would seem advisable for each decision to forthrightly assert the basic factors underlying its rationale.

In the case at bar, Illinois is the State having the dominant interest. The defendant tavern owners and operators were licensed in Illinois where they conducted their respective businesses, including the sale of liquor to Schleicher. The plaintiff, the individual defendants and Schleicher, the intoxicated person, were all Illinois residents, and the corporate defendant had its place of business there. Thus, the important contacts of the transaction were in Illinois, and there is no good reason for not applying Illinois law to the occurrence.

Illinois has such an interest in the welfare and protection of its citizens, and those dependent upon them, and has such an interest in regulating the evils attendant with the liquor traffic and the redress of injury or loss of support arising therefrom, that its courts should, under the circumstance of this case, give extraterritorial effect to th,e Illinois Dram Shop Act. Such action would give protection to justified expectations, enforce the fundamental policy underlying the Dram Shop Act, and would render justice in the case.

Wisconsin’s only contact with the present case — as the situs of the accident — is wholly fortuitous. The application of the Illinois Act with reference to its residents would not offend the comity of interstate relationships between the states of Illinois and Wisconsin.

In the light of these circumstances, the strict rule of lex loci delicti as announced in sections 377 and 378 of the Restatement of Conflict of Laws, in Colligan v. Cousar, supra, and in Butler v. Wittland, supra, would yield harsh, unjust and unnecessary results. Future determinations of the choice of law rule to be applied in kindred cases will be governed by the choice-influencing considerations suggested herein and by other similar and pertinent factors, which permit analysis of the policies and interests underlying the particular issue before the court.

In Griffith v. United Air Lines, Inc., supra, at pages 805 and 806, the court, in embracing a new choice of law rule in tort actions, pertinently stated:

“It must be emphasized that this approach to choice of law will not be chaotic and anti-rational. ‘The alternative to a hard and fast system of doctrinal formulae is not anarchy. The difference is not between a system and no system, but between two systems; between a system which purports to have, but lacks, complete logical symmetry and one which affords latitude for the interplay and clash of conflicting policy factors.’ Harper, ‘Policy Basis of the Conflict of Laws: Reflections on Rereading Professor Lorenzen’s Essays,’ 56 Yale LJ 1155, 1157-1158 (1947). Moreover, in evaluating qualitatively the policies underlying the significant relationships to the controversy, our standard will be no less clear than the concepts of ‘reasonableness’ or ‘due process’ which courts have evolved over many years. See Cheatham in ‘Comments on Babcock v. Jackson,’ 63 Columbia L Rev 1212, 1229, 1230-1231 (1963).
“We are at the beginning of the development of a workable, fair and flexible approach to choice of law which will become more certain as it is tested and further refined when applied to specific cases before our courts.”

We adopt this concept of the effect of abandoning the mechanical rule of thumb application of the lex loci delicti rule.

Our fast changing and moving era with its attendant new social and economic problems, requires a reevaluation of the choice of law rule in multistate tort sitúations, to the end that such rule will be made for the people and the problems of today. The nice tidy perfection of uniformity and simplicity should not prevail over elementary choice-influencing considerations, public policy, decency and justice.

The plaintiff also contends that Count II of her complaint states a cause of action under the common law of Illinois. We find no merit in such contention. The Dram Shop Act created liability in Illinois where none existed at common law. Howlett v. Doglio, supra.

In Cunningham v. Brown, 22 Ill2d 23, 30, 31, 174 NE 2d 153 (1961), the court held that Section 14 of Article VI of the Liquor Control Act provides the only remedy against tavern owners and operators for injuries to the person, property or means of support by an intoxicated person or in consequence of intoxication. In Rubitsky v. Russo’s Derby, Inc., supra, at pages 485 and 486, we held that under Wisconsin law there is no common-law liability for the sale or gift of liquor to an able-bodied man. Consequently, there is no basis in either Illinois or Wisconsin law for a cause of action under Count II.

The order of the trial court dismissing Count I of the complaint is reversed, and the order dismissing Count II thereof is affirmed. The cause is remanded to the trial court with reference to Count I for further proceedings consistent with the views expressed herein.

Affirmed in part, reversed in part, and remanded.

SEIDENFELD, J., concurs.

MORAN, J., dissents.

MORAN, J.,

dissenting:

While the majority opinion has been ably prepared by my colleagues, I feel compelled to dissent from the conclusions reached by them relative to the reversal of the trial court’s order dismissing count I of the complaint. My reasons for doing so are as follows:

The Dram Shop Act, while it is remedial in purpose, still is penal in character and therefore should be strictly construed so as not to enlarge its language by interpretation. Rittmeyer v. Anderson, 49 Ill App2d 71, 75, 199 NE2d 463 (1964); Miller v. Owens-Illinois Glass Co., 48 Ill App2d 412, 420, 199 NE2d 300 (1964), appeal denied, 30 Ill2d 627. The opinion today not only liberally construes the Act but enlarges its language through interpretation.

I question the premise that the wrong contemplated by the Act is singular and limited to the giving or selling of liquor to any person, which giving or selling causes the intoxication of such person. It is my opinion that the wrong contemplated by the Act is twofold, one being the intoxication of a person and the other being an injury caused by that person as a result of the intoxication. Either one standing alone would not be actionable. It is necessary that a combination of the two would have to take place in order to reap the benefits of the right created by the Act. Therefore, contrary to the majority opinion, the place of the injury becomes relevant and, consequently, is a proper subject for legislative determination.

The right as created by the legislature was unknown to the common law. If the Act need be enlarged to in-elude extraterritorial effect, then it should be the legislature and not the courts that should extend or modify its present limitations. See, Maki v. Frelk (Ill2d), 239 NE2d 445 (1968). This is especially true in light of the fact that our court has continually and consistently held that the Dram Shop Act is without extraterritorial effeet. See, Rubitsky v. Russo’s Derby, Inc., 70 Ill App2d 482, 216 NE2d 680 (1966); Liff v. Haezbroeck, 51 Ill App2d 70, 200 NE2d 525 (1964); Colligan v. Cousar, 38 Ill App2d 392, 187 NE2d 292 (1963); Butler v. Wittland, 18 Ill App2d 578, 153 NE2d 106 (1958); Eldridge v. Don Beachcomber, Inc., 342 Ill App 151, 95 NE2d 512 (1950). It should be further noted that the Rubitsky case was not brought under the Dram Shop Act; in the Butler case both plaintiffs were citizens of Illinois, as was the plaintiff in the case at bar, and, in both the Eldridge and Colligan cases, the Supreme Court denied leave to appeal.

A further consideration is that, since the rule was first annunciated in the Eldridge case in 1950, there have been five amendments, by the legislature, of the section involved, none of which fostered extraterritorial effect.

For these reasons I am of the opinion that the trial court was correct in dismissing count I of the complaint. I concur with the majority opinion as to count II of the complaint and, therefore, I would affirm the order of the trial court in all respects as to the complaint filed by the plaintiff herein.

       (See Cavers, A Critique of the Choice-of-Law Problem, 47 Harv L Rev 173, 178; Cheatham, American Theories of Conflict of Laws: Their Role and Utility, 58 Harv L Rev 361, 379-385; Cook, The Logical and Legal Bases of the Conflict of Laws, 33 Yale LJ 457, 479 et seq.; Hill, Governmental Interest and the Conflict of Laws, 27 U Chi L Rev 463; Lorenzen, Territoriality, Public Policy and the Conflict of Laws, 33 Yale LJ 736, 746-749; Yntema, The Hornbook Method and the Conflict of Laws, 37 Yale LJ 468, 474 et seq.)

       (See Dicey, Conflict of Laws (7th ed, 1958), p 937 et seq.; Leflar, The Law of Conflict of Laws (1959), p 217 et seq.; Stumberg, Principles of Conflict of Laws (2d ed, 1951), p 201 et seq.; Morris, The Proper Law of a Tort, 64 Harv L Rev 881; Ehrenzweig, Guest Statutes in the Conflict of Laws, 69 Yale LJ 595; Currie, Survival of Actions: Adjudication versus Automation in the Conflict of Laws, 10 Stan L Rev 205.)

       (See, e. g., Richards v. United States, 369 US 1, 12-13, 82 S Ct 585, 7 L Ed2d 492; Grant v. McAuliffe, 41 Cal2d 859, 264 P2d 944, 42 ALR2d 1162; Schmidt v. Driscoll Hotel, 249 Minn 376, 82 NW2d 365; Haumsehild v. Continental Cas. Co., 7 Wis2d 130, 95 NW2d 814.)


author: MR. JUSTICE SEIDENFELD

text:
    Board of Education of High School District No. 88, Plaintiff, v. Joseph J. Duffy Co., a Corporation, Defendant. The Perkins and Will Partnership, Third Party Plaintiff-Appellant, v. Joseph J. Duffy Co., a Corporation, Third Party Defendant-Appellee. On Appeal of The Perkins and Will Partnership, Third Party Plaintiff-Appellant.
    Gen. No. 67-175.
    Second Judicial District.
    August 22, 1968.

      Jacobs and Spencer, of Villa Park, and Tom L. Yates, of Chicago, for appellant.
    William L. Lamey and R. A. Michael, of Chicago, for appellee.
   MR. JUSTICE SEIDENFELD

delivered the opinion of the court.

This is an appeal by The Perkins and Will Partnership from an order dismissing its third-party complaint.

In 1956, the plaintiff, Board of Education, entered into a contract with the defendant, The Perkins and Will Partnership (herein referred to as Perkins), requiring Perkins to perform architectural services in connection with the erection of a high school building. These services included the design of the building and the supervision of construction. Thereafter, on October 15, 1957, the plaintiff entered into an agreement with Joseph J. Duffy Co. (herein referred to as Duffy) for the construction of the high school building. It is undisputed in the record that Duffy had completed its general contract prior to December 31, 1959. After taking occupancy of the building, plaintiff allegedly discovered numerous defects in the design and construction of the building and its appurtenances.

On February 1, 1966, plaintiff filed a multicount complaint against both Perkins and Duffy for damages (this appeal does not involve the plaintiff’s complaint against Duffy). Essentially, the plaintiff sought damages against Perkins on two separate theories: (1) breach of its contract properly to design the building and supervise its construction, and (2) negligence in its design of the building and the supervision of its construction. In its answer to the negligence count, Perkins affirmatively pleaded, inter alia, that recovery would be barred by reason of the Statute of Limitations (Ill Rev Stats, c 83, § 16) since suit was not commenced within five years after the alleged negligence. It is not contended that limitations would apply to plaintiff’s breach of contract theory.

With leave of court, Perkins thereafter filed a third-party complaint for indemnity against Duffy, the crux of which is set forth in Paragraph 5 thereof:

"5. The damage, if any, so complained of by the plaintiff was the result of the active and primary carelessness and negligence of the third-party defendant, Joseph J. Duffy Construction Co., in the construction of York Community High School building and the negligence or default, if any, of The Perkins & Will Partnership, in carrying out their duties under said agreement of July 10, 1956, was passive or secondary only.”

Duffy responded with a motion to dismiss the third-party complaint, alleging:

“1. To the extent that Count II of Plaintiff’s complaint against Third-Party Plaintiff sounds in tort for negligent damage to property, and constitutes the basis for the Third-Party Complaint for indemnity against this third-party defendant, the said cause of action is barred, not having accrued to the Plaintiff at any time within five (5) years of the commencement of Plaintiff’s suit, in accordance with the provisions of Illinois Revised Statutes, Ch 83, Sec 16.
“2. To the extent that Plaintiff’s complaint against Third-Party Plaintiff sounds exclusively in contract, the Third-Party Complaint is substantially insufficient in law in that it fails to allege any contract of indemnity or other contractual relationship between the Third-Party Plaintiff and the Third-Party Defendant.”

From an order sustaining Duffy’s motion to dismiss the third-party complaint, Perkins has filed this appeal. We conclude that the trial court properly dismissed the third-party complaint.

Insofar as the plaintiff’s claim against Perkins is based on alleged negligence, the claim would be barred by the statute of limitations if such defense were not waived, notwithstanding that the negligence may not have been discovered until recently before the filing of the suit. As applicable here the period of limitations commences when the negligent act takes place, and is not tolled by the plaintiff’s ignorance of his injury. Simoniz Co. v. J. Emil Anderson & Sons, Inc., 81 Ill App2d 428, 437-438, 225 NE2d 161 (1967); Mosby v. Michael Reese Hospital, 49 Ill App2d 336, 341-342, 199 NE2d 633 (1964). Indeed, the parties have conceded, at least for the purposes of this appeal, that limitations bar the negligence claim against Perkins, but neither party contends that limitations would apply to bar plaintiff’s recovery on breach of a written contract.

Although Perkins chose to raise this defense to the negligence theory by way of answer, logic dictates that Duffy nevertheless has a right to resist the third-party complaint by motion, setting forth that since plaintiff is barred from asserting a negligence claim against Perkins, Perkins in turn would have no basis to ask for indemnity against Duffy. Under section 25(2) of the Civil Practice Act, a third-party defendant "may assert any defenses which he has to the third-party complaint or which the third-party plaintiff has to the plaintiff’s claim . . . .” Ill Rev Stats, c 110, § 25(2). (Emphasis added.) A contrary rule would require a third-party defendant to remain in a case through the conclusion of the trial simply because the third-party plaintiff chose not to utilize an absolute defense during the pretrial proceedings.

We conclude, therefore, that no third-party action would lie against Duffy to indemnify Perkins for liability arising out of plaintiff’s negligence count, inasmuch as said count is barred by limitations. The rationale of this decision would authorize the trial court to dismiss the complaint against Perkins insofar as the negligence theory is concerned.

On the other hand, no question of limitations has arisen in connection with plaintiff’s breach of contract theory against Perkins. The question, then, is whether a breach of contract complaint against Perkins can be the basis for a third-party action against Duffy for indemnification. The trial court necessarily held that it cannot, and we agree. Our research discloses no authority — and Perkins cites none — for the proposition that liability for breach of contract might entitle the wrongdoer to indemnity from a third party who was a stranger to the contract and who had not contractually undertaken to indemnify the wrongdoer. We are not here concerned with the situation where the third-party defendant has no contractual relationship with the third-party plaintiff, but is nevertheless liable for indemnification on an active-passive theory of negligence. Such an analysis presupposes that the third-party plaintiff was initially held liable in negligence, and in the instant case the statute of limitations prevents Perkins from being liable in negligence, assuming Perkins does not abandon that defense.

Perkins contracted with the plaintiff to design a suitable building and to supervise the performance of the eventual contractor. Perkins’ liability, if any, would be founded in its failure to carry out this agreement. Assuming that the liability was in the failure to supervise, and that this failure permitted defective construction to go unnoticed, would this render Duffy liable to indemnify Perkins? We think not, for Perkins’ breach was in its failure to supervise, and not in the fact that the contractor may have performed in an unworkmanlike manner. Thus, Duffy did not cause Perkins to breach its contract, assuming it is proven that Perkins breached its contractual obligation to supervise. Perkins itself would have breached its contract, and we see no reason to hold that it could be indemnified for the resultant liability from someone else who may have breached a different agreement with a different party. The undertaking of Perkins was quite different from that of Duffy.

In its brief, Perkins argues that the breach, if any, of its contractual duties to the plaintiff would lie in the negligent or careless performance of its contract, and that its liability would be founded in tort rather than breach of contract. Perkins reasons, therefore, that the right of indemnification against Duffy is not lost since it, Perkins, is at most a passive tortfeasor while Duffy’s misconduct was actively tortious. To support this reasoning, Perkins cites Butterman v. Chamales, 73 Ill App2d 399, 220 NE2d 81 (1966), where it was held that an attorney’s carelessness in protecting his client sounded in tort for negligence as opposed to breach of contract, and, therefore, did not survive the defendant’s death. Similarly, attention is directed to 86 CJS, Torts, 924, where it is said that the breach of an implied duty to use reasonable care in performing a contract may constitute a tort.

We need not decide whether Perkins’ alleged failure properly to perform its contract is in fact a tort, for under either view there would be no right of indemnity against Duffy under the facts presented. If Perkins’ conduct toward the plaintiff sounds in tort, then Perkins could avail itself of the statute of limitations, as previously noted, and Duffy is similarly free to raise this defense by motion to dismiss the third-party complaint against it. On the other hand, if Perkins’ alleged wrong is founded in breach of contract, it would have no right of indemnification against a stranger to the contract, and with whom it had no contractual relationship, as herein-above discussed. Consequently, it is unnecessary to determine in this case whether that count in plaintiff’s complaint sounding in contract merely duplicates the allegations based on negligence, since under either theory the dismissal of the third-party complaint would be proper.

We hold, therefore, that the trial court properly dismissed the third-party complaint against Duffy, and the judgment is affirmed.

Affirmed.

DAVIS and MORAN, JJ., concur.


author: STOUDER, J.

text:
    Dan J. Vahle and Estella Vahle, Plaintiffs-Appellants, v. The Zoning Board of Appeals of the City of Canton, County of Fulton and State of Illinois, et al., Defendants-Appellees.
    Gen. No. 68-17.
    Third District.
    June 28, 1968.
    Rehearing denied September 23,1968.
    William H. Malmgren, of Canton, and George K. Meuth, of Cuba, for appellants.
    Water J. Sebo, of Canton, for appellees.
   STOUDER, J.

This is an appeal from a judgment of the Circuit Court of Fulton County entered in an administrative review proceeding. The judgment affirmed an order of the Zoning Board of Appeals of the City of Canton, Appellee, which order denied the petition of Dan J. Vahle, Appellant, requesting a change in the use of appellant’s premises from one nonconforming use to another nonconforming use.

In 1955, appellant purchased an unimproved lot on Main Street in Canton, Illinois. Appellant constructed a concrete block commercial building on said premises, the building being sixty feet by thirty feet. In January, 1956, the appellant commenced to use the improved premises as a laundry. At this time the City of Canton had no zoning ordinance in effect. In June, 1956, the City of Canton adopted a Zoning Ordinance and map which ordinance classified the property of appellant for single-family residences only. Appellant continued to use the property as a laundry until 1958 during which year he applied for and secured a building permit for the construction of a twenty foot by forty eight foot addition for the purpose of expanding his laundry business to include dry cleaning. The addition was constructed and thereafter appellant operated both a laundry and dry cleaning business until August, 1965. In 1962, appellant’s son started a carpet and upholstery cleaning business in the building which business was being carried on at the time of the hearing. When appellant discontinued his laundry and dry cleaning business he advertised that the original portion of the building was available for commercial use and he thereafter entered into a lease with Robert Dollar who proposed to engage in a carry-out chicken business in the original portion of the building. The new business required that a plywood wall be moved forward and the vents in the roof be changed. Appellant’s application for a building permit to make such changes was denied and a petition which commenced these proceedings was filed with the Zoning Board of Appeals requesting authority to change the use of said premises.

At the hearing before the Zoning Board of Appeals, appellant presented evidence concerning the nature and construction of the building located on the premises, the uses of the premises from 1955 until the date of the hearing, the nature of the proposed use, a description of the properties in the area and the uses thereof and valuation testimony with respect to the value of the premises as a commercial property and as a residence property. The Zoning Board denied appellant’s petition which order was affirmed by the Circuit Court resulting in this appeal. From the record it appears that the petition filed with the Zoning Board is a petition for a variance. However the prayer of the petition seeks permission for a particular use. In this respect it is not clear either from the petition, the evidence, or the action of the Board the precise nature of petitioner’s claim.

Appellant originally filed his appeal with the Supreme Court but the cause was transferred to this court.

Appellant first argues that the order of the Zoning Board of Appeals is invalid because it contains no findings of fact. From the cases which have been called to our attention it appears that the precise question involved has not heretofore been considered by our courts.

Appellee concedes that the Zoning Board made no findings of fact but merely denied the petition for variance. Appellee argues that no findings of fact are required in an order of an administrative body unless required by statute or ordinance and that the statute requires findings only when a variance is granted. The Statute relied upon by appellee is chapter 24, section 11-13-11 (of the Cities and Villages Act), Ill Rev Stats (1965), which provides, “Every variation whether made by the Board of Appeals directly or by an ordinance after a hearing before the Board of Appeals shall be accompanied by findings of fact specifying the reason or reasons for making the variation.” The principal case relied upon by appellee in support of his position is Sokolis v. Zoning Board of Appeals of City of Springfield, 21 Ill App2d 178,157 NE2d 427.

The Sokolis case is admittedly not of controlling authority because of the unique factual situation. In that case a hearing was conducted by the Zoning Board of Appeals on an application for a variance in the Zoning Ordinance. Only six members of the Board participated in the case and they were equally divided three to three on whether the application should be granted and as a consequence the application was denied, it not having received four affirmative votes as required by the Ordinance. The order of the Board contained findings of fact supporting its conclusion that the application should be denied but these findings of fact were disregarded by the court on the basis that findings of fact are not possible when the vote of the Board is equally divided. After reviewing the evidence the court concluded that it was insufficient to establish the applicant’s claim. This appears to be the only case in which the present administrative review procedure has been invoked reviewing an order of a Zoning Board of Appeals denying a variance. Since in the Sokolis case findings of fact were included but disregarded as improper under the- circumstances it can hardly be said that such case is authority for the contention that such findings are not required.

Appellant relies principally on the cases of International Harvester Co. v. Zoning Board of Appeals of City of Chicago, 43 Ill App2d 440, 193 NE2d 856, Maywood Park Trotting Ass’n, Inc. v. Illinois Harness Racing Commission, 15 Ill2d 559, 155 NE2d 626, Kotrich v. County of DuPage, 19 Ill2d 181, 166 NE2d 601, and Rosenfeld v. Zoning Board of Appeals of Chicago, 19 Ill App2d 447, 154 NE2d 323. In International Harvester one of the issues was the propriety of the Zoning Board’s action in granting a special use permit without findings of fact to support it. Although the order granted the relief requested rather than denying it, as in the instant case, nevertheless, as in the instant case, findings of fact by the Board were not required by statute or ordinance. In International Harvester the Court discusses and analyzes the other cases relied upon by appellant as well as leading texts on the subject and concluded that findings of fact were necessary even though not specifically required by statute or ordinance. It might be argued that the granting of a special use permit being somewhat similar to the granting of a variance could and should be subject to the same statutory requirements for the granting of variances without warranting the conclusion that findings of fact are required where the relief sought in either case is denied. The court in International Harvester did recognize such analogy but more significantly, in relying heavily on Maywood Park Trotting Ass’n, Inc. v. Illinois Harness Racing Commission, 15 Ill2d 559, 155 NE2d 626, it also based its decision on broader or more general considerations namely the nature of the administrative decision process, the necessity of applying statutory standards, the significance of findings of fact as related to the application of standards and particularly the effect and importance of findings of fact in the judicial review of administrative determinations. We believe it unnecessary to unduly extend this opinion by repetition of the discussion and reasoning in the International Harvester and Maywood cases but believe it is sufficient to say that we agree with the reasoning therein employed and that such reasoning supports the proposition that findings of fact are and should be required to support the Zoning Board’s action in denying the petition. Since the proceedings before a Zoning Board are not adversarial in nature it is not required that a petition be granted merely because there is an absence of opposing evidence. Nor does the requirement that findings of fact be made whether the variance is granted or denied mean that the Zoning Board may not find, if such be the case, that no evidence was presented by the petitioner on any issue which he was required to prove.

We find no merit in appellee’s argument that to require the Board to state its reasons for denying the petition would in effect require the Board to find that a negative fact exists or that the petitioner had “not proved” the required facts. In many instances the standards themselves are phrased in the negative i. e., . . not adversely affect the property in the area. . . .” Furthermore it is the application of the statutory standards to the reasons or findings of fact which determine the appropriateness of the result. Accordingly we believe the trial court erred in affirming the order of the Zoning Board of Appeals since such order contains no findings of fact in support of its denial of the petition.

Appellant has urged other reasons for reversing the order of the Zoning Board of Appeals but in our view of this case they cannot be considered properly in the absence of findings of fact in the order and accordingly we make no decision on the other points urged.

For the foregoing reasons the judgment of the Circuit Court of Fulton County is reversed and remanded with directions that an order be entered remanding this cause to the Zoning Board of Appeals of the City of Canton for further proceedings consistent herewith.

Judgment reversed and remanded with directions.

ALLOY, P. J. and SCHEINEMAN, J., concur.