text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LONNIE JOHNS, Defendant-Appellant.
    Fifth District
    No. 5—84—0314
    Opinion filed December 4, 1984.
    Randy E. Blue and John R. Abell, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Rodney Clutts, State’s Attorney, of Jonesboro (Kenneth R. Boyle, Stephen E. Norris, and Debra M. Buchman, all of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE KASSERMAN

delivered the opinion of the court:

The defendant, Lonnie Johns, pleaded guilty to unlawful manufacture of cannabis in violation of section 5(e) of the Cannabis Control Act (Ill. Rev. Stat. 1981, ch. 56V2, par. 705(e)). Defendant was sentenced to pay a fine of $700 pursuant to section 5—9—1.1 of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005—9—1.1) and to imprisonment for a term of three years. The only issue on appeal concerns credit defendant should have received toward his fine and toward his imprisonment. The State concedes the validity of the defendant’s arguments.

Defendant was arrested on December 13, 1982, and was released on bond on December 14, 1982; therefore, the parties argue defendant should receive credit for one day of incarceration. We conclude, however, that the defendant is entitled to two days’ credit: one for being incarcerated on December 13, 1982, and the other for being incarcerated on December 14, 1982. Section 5—8—7(b) of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005—8—7(b) states: “The offender shall be given credit on the determinate sentence *** for time spent in custody as a result of the offense for which sentence was imposed ***.” The foregoing section requires that credit be given for all time spent in custody for the same offense (see People v. Scheib (1979), 76 Ill. 2d 244, 250, 390 N.E.2d 872, 875); however, no statutory provision or decided case indicates the manner in which the time should be calculated. We conclude that if defendant is held in custody for any part of a day, he should be granted credit against his sentence for that day. To hold otherwise would lead to arbitrary results, i.e., one sheriff might state that defendant was not in custody if he made bond prior to lunch, another might use the breakfast period as the cut-off point, and still another might use a certain hour of the day. Therefore, the circuit court of Union County is directed to issue an amended mittimus and judgment order reflecting the aforementioned credit. Defendant is also entitled to $10 credit toward his fine due to the two days of incarceration in the county jail. (See People v. Stevens (1984), 125 Ill. App. 3d 516, 466 N.E.2d 296.) Therefore, if he has not been so credited, defendant should receive $10 credit towards his fine.

For the foregoing reasons, the judgment of the circuit court of Union County is affirmed and the cause is remanded with directions as stated above in this opinion.

Affirmed and remanded with directions.

JONES and KARNS, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE JONES

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FREDDIE TILLER, Defendant-Appellant.
    Fifth District
    No. 5—83—0537
    Opinion filed December 27, 1984.

      Randy E. Blue and Kim G. Noffke, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    John Baricevic, State’s Attorney, of Belleville (Robert J. Biderman and David E. Mannchen, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE JONES

delivered the opinion of the curt:

The defendant, Freddie Tiller, was convicted following a jury trial in September 1979 of two counts of murder, two counts of armed robbery and two counts of armed violence and was sentenced to death. On appeal the supreme court affirmed the murder convictions and one of the armed robbery convictions but remanded the cause to the trial court for the imposition of sentences other than death. (People v. Tiller (1982), 94 Ill. 2d 303, 447 N.E.2d 174.) The trial court subsequently resentenced the defendant to concurrent terms of natural life imprisonment on the murder convictions and imposed sentence of 30 years’ imprisonment on the armed robbery conviction. The defendant has now appealed, contending that the natural life sentences were based upon improper aggravating factors. Upon consideration of the supreme court’s opinion in this case, we agree and accordingly vacate those sentences and remand the cause for resentencing on the murder convictions.

The defendant was convicted, along with codefendant Andre Jones (see People v. Jones (1982), 94 Ill. 2d 275, 447 N.E.2d 161), of two murders that occurred during the course of an armed robbery of a cleaning shop. One of the victims was Samuel Nersesian, the operator of the shop, and the other was Debra Brown, a mail carrier who entered the shop while the robbery was in progress. The evidence at trial, more fully set forth in the supreme court’s opinion in this cause, showed that both victims were actually shot by codefendant Jones and that the defendant had left the shop when Debra Brown entered and was not present when she was shot.

The defendant was sentenced to death under the statutory provision authorizing such a penalty for the murder of two or more individuals (Ill. Rev. Stat. 1979, ch. 38, par. 9—1(b)(3)). That section provided for a sentence of death so long as both murders “were the result of either an intent to kill more than one person or of separate premeditated acts.”

On appeal the supreme court affirmed both murder convictions, finding that there was sufficient evidence to support the defendant’s conviction for the murder of Debra Brown on a theory of accountability. The court stated:

“The jury had before it evidence to support the conclusion that defendant and [codefendant] Jones planned the robbery and that Miss Brown was murdered to prevent her from identifying Jones and defendant as the robbers of Nersesian. As such, her murder was in furtherance of the robbery, and defendant [was] accountable for his accomplice’s act.” People v. Tiller (1982), 94 Ill. 2d 303, 314, 447 N.E.2d 174, 180.

The court stated further that the defendant’s alleged admonishment to Jones, upon leaving the cleaners, not to harm Miss Brown

“hardly vitiate[d] his participation in the commission of the robbery, and certainly [did] not absolve him from liability for [her murder].” (94 Ill. 2d 303, 315, 447 N.E.2d 174,180.)

Noting the defendant’s “apparent knowledge of the fact that Jones might harm [Miss Brown],” the court concluded that

“defendant was aware of another crime that was going to occur due to the commencement of the robbery, but did nothing to prevent the crime. A mere statement of disapproval of his accomplice’s intended acts [was] insufficient to exonerate defendant from liability for the crimes against Miss Brown.” 94 Ill. 2d 303, 315, 447 N.E.2d 174, 180.

In reviewing the defendant’s sentence, however, the supreme court held that the defendant could not be sentenced to death for the murders based upon section 9—1(b)(3) because the evidence failed to show any intent by the defendant to kill either Nersesian or Miss Brown. The court relied upon the decision of Enmund v. Florida (1982), 458 U.S. 782, 797, 73 L. Ed. 2d 1140, 1151, 102 S. Ct. 3368, 3376-77, in which it was held that a death sentence imposed upon one “who aids and abets a felony in the course of which a murder is committed by others but who does not himself kill *** or intend that a killing take place” was not permitted under the eighth amendment. The Tiller court, contrasting the instant case with People v. Ruiz (1982), 94 Ill. 2d 245, 447 N.E.2d 148, where a death sentence was upheld for a defendant guilty of multiple murders on an accountability theory because of his participation in the killings, concluded that the defendant here “was not shown to have planned or in any manner participated in the killings.” (People v. Tiller (1982), 94 Ill. 2d 303, 324, 447 N.E.2d 174, 185.) The court accordingly vacated the defendant’s death sentence and remanded the cause to the trial court for re-sentencing.

The trial court upon remand sentenced the defendant to concurrent life sentences under section 5—8—1(a)(1)(b) of the Unified Code of Corrections (Ill. Rev. Stat. 1983, ch. 38, par. 1005—8—1(a)(1)(b)), which authorized such a penalty if any of the aggravating factors in section 9—1, the death penalty provision, were present. The court based the life sentences upon the aggravating factors listed in subsections (b)(3) and (b)(6) of section 9—1 (Ill. Rev. Stat. 1983, ch. 38, pars. 9—1(b)(3), 9—1(b)(6)). Subsection (b)(3), under which the defendant had originally been sentenced to death, provided that a defendant must have been convicted of murdering two or more individuals and must have had an intent to kill. Under subsection (b)(6), the murdered individual must have been killed in the course of another felony and must have been actually killed by the defendant.

On appeal the defendant contends that his sentence based upon these aggravating factors was improper where the evidence failed to show either that he had an intent to kill, as required under subsection (b)(3), or that he actually killed the murdered individuals, as required under subsection (b)(6). The State concedes that the defendant could not be sentenced to life imprisonment under subsection (b)(6), since he was not the one who actually killed the two victims. It contends, however, that the defendant’s sentence based upon subsection (b)(3) was proper and was not precluded by the supreme court’s decision in the initial appeal of this case.

Our consideration of the supreme court’s opinion leads us to conclude that the defendant’s sentence of life imprisonment based upon the aggravating factor of subsection (b)(3) can no more be upheld than could the original sentence of death based upon that factor. The supreme court, having reviewed the same evidence that was before the sentencing court, found that there was insufficient showing that the defendant had planned or participated in the killings so as to justify imposition of sentence based upon subsection (b)(3). This aggravating factor, then, may not subsequently be applied in sentencing the defendant to natural life imprisonment under section 5—8—1(a)(1)(b). For this reason, the defendant’s natural life sentences must be vacated and the cause remanded to the trial court for resentencing.

While the defendant contends additionally that the trial court erred in refusing the assistant public defender’s request to withdraw as the defendant’s attorney because the State’s Attorney who had prosecuted the defendant was currently in the public defender’s office, there was no showing here of an actual conflict of interest necessary to require disqualification. The only conflict asserted by the defendant with respect to his representation by the assistant public defender was that she could have been “subliminally affected” by the former State’s Attorney’s position in the public defender’s office. It is well settled that a public defender’s office is not to be treated as an individual unit or entity such that the disqualification of one member, here, the former State’s Attorney, would necessarily disqualify all of its members. (People v. Miller (1980), 79 Ill. 2d 454, 404 N.E.2d 199.) In the absence of any showing of conflict that would preclude effective and forceful representation of the defendant by the assistant public defender, the trial court did not err in refusing her request to withdraw, and we see no reason to order appointment of different counsel upon remand of the cause for resentencing.

Murder sentences reversed and cause remanded for resentencing on murder convictions.

KARNS and KASSERMAN, JJ., concur.


author: JUSTICE WELCH

text:
    JOHN SCHROEDER et al., Plaintiffs-Appellants and Cross-Appellees, v. MEIER-TEMPLETON ASSOCIATES, INC., Defendant-Appellee and Cross-Appellant.
    Fifth District
    No. 5—83—0630
    Opinion filed December 13, 1984.
    Rehearing denied January 14, 1985.

      Melory B. Hutnick, of Belleville, for appellants.
    Michael O’Malley, of Belleville, and Mark G. Zellmer, of St. Louis, Missouri (Carol A. Rutter, of counsel), for appellee.
   JUSTICE WELCH

delivered the opinion of the court:

Plaintiffs John Schroeder and George Templeton filed their complaint in 1981 in the circuit court of St. Clair County against defendants Meier-Templeton Associates, Inc. (MTA), and Harve Meier, seeking an accounting as to commissions Mr. Schroeder and Mr. Templeton had earned while in MTA’s employ and payment of those commissions yet unpaid, a declaration that Mr. Schroeder was relieved of his contractual obligations to MTA, and damages for MTA’s failure to provide an accounting as required under the terms of Mr. Schroeder’s contract with MTA. After a bench trial, the court entered judgment, inter alia, as follows: (a) In favor of Templeton and against MTA, $19,805.50; (b) in favor of Schroeder and against MTA, $16,036.37; (c) a “receiver” appointed to collect certain accounts receivable and deposit the sums collected with the trial court, which would then distribute said funds equally among Templeton, Schroeder and Meier; (d) a declaration that Schroeder was relieved of his obligation not to compete with MTA; and (e) that MTA pay the costs of the accounting. Each of the parties appeals from the respectively unfavorable portions of said judgment. Meier is not personally involved in this appeal.

MTA is a “manufacturer’s representative” which represented various principals when it was active. These principals are manufacturers and suppliers of large items of industrial equipment which often require substantial periods of time to install. Commissions often are not paid in full until after completion of installation. MTA acted as a seller of the principals’ equipment. Meier and Templeton both served MTA as officers and salesmen. Schroeder was hired as a salesman pursuant to a written employment contract. The contract required Schroeder to refrain from competing with MTA while working for MTA and for 18 months thereafter absent written consent or the retirement of Meier or Templeton. The contract also required that MTA give a written statement of good cause in the event of termination of Schroeder’s employment; that Schroeder provide 30 days’ written notice prior to resigning; that, in the event of termination or resignation, on the final day of Schroeder’s employment MTA would provide him with a full and complete accounting reflecting what commissions had been earned as of that time that he is entitled to share in upon receipt by MTA, and that on the final day of his employment Schroeder would provide MTA with a full and complete list of all expenses for which he claimed reimbursement.

A falling out between Meier and the other two men culminated in Meier’s January 26, 1981, letter of termination to Schroeder. According to Schroeder, he doubted the efficacy of that letter as a letter of termination and immediately sought legal advice which reinforced this belief. Templeton mailed his letter of resignation to Meier on January 26. Schroeder tendered his resignation on January 27, 1981, and an attorney for MTA accepted it the same day.

Schroeder and Templeton filed this action on March 20, 1981, seeking an accounting as to commissions due them, payment of the amounts due, damages for MTA’s failure to render an accounting voluntarily or on demand, and a declaration that Schroeder was no longer bound by the competition clause in his contract. Schroeder and Templeton also sought prejudgment interest for the amounts owed, and moved for attorney fees and expenses under section 2—611 of the Civil Practice Law (Ill. Rev. Stat. 1981, ch. 110, par. 2—611) based on allegations and denials in MTA’s answer to their complaint. MTA filed counterclaims which the court ordered severed for trial and which are not in issue in this appeal.

Meier testified at trial that shortly after Templeton and Schroeder resigned from MTA, Meier founded a corporation named Meier Technical Associates, Inc. Included in the record on appeal is a copy of a letter from Meier to one of the principals represented by MTA, announcing that MTA’s name had been changed and that Meier Technical Associates would henceforward handle the business formerly handled by MTA. Meier testified that MTA continued in existence. Schroeder and Templeton testified that after leaving MTA they formed T.S. Associates and continued operating as manufacturers’ representatives under that name.

Meier testified that on September 15, 1981, he sent Schroeder and Templeton an “engineer’s” accounting as to the sums owed to them, together with two checks totalling $33,858.46. The trial court ordered this sum held in escrow. Schroeder and Templeton moved for release of this sum to them on the ground that their entitlement thereto was not in dispute. This motion was granted. On October 2, 1981, the trial court ordered an accounting prepared by Mr. Wamhoff, who provided accounting services for both MTA and T.S. Associates. None of the parties found the Wamhoff accounting acceptable.

We first consider MTA’s contention that Schroeder and Templeton’s appeal should be dismissed for want of jurisdiction because their notice of appeal states simply that they seek that the judgment of the trial court be “reversed.” It is generally accepted that a notice of appeal is to be liberally construed. A notice of appeal will confer jurisdiction on an appellate court if the notice, when considered as a whole, fairly and adequately sets out the judgment complained of and the relief sought so that the successful party is advised of the nature of the appeal. (Burtell v. First Charter Service Corp. (1979), 76 Ill. 2d 427, 433-34, 394 N.E.2d 380, 382-83.) The instant notice specifies the date of the judgment appealed from and seeks reversal “as prayed for” or alternatively such other relief as the court may find proper. In our view it is sufficient to confer jurisdiction upon this court.

We next consider MTA’s argument that Schroeder and Templeton are barred from appealing the judgment complained of by their acceptance of amounts tendered to them by MTA, under the well-established rule that a party cannot avail himself of those parts of a decree which are beneficial to him and afterward appeal, seeking to reverse the parts of the decree unfavorable to him. (Boylan v. Boylan (1932), 349 Ill. 471, 473, 182 N.E. 614, 614-15.) Pursuant to court order, two checks totalling $33,858.46 were escrowed, then released to Schroeder and Templeton by order of the trial court pursuant to their motion. Schroeder and Templeton argue that that sum was part of MTA’s obligations to them, but not part of the judgment against MTA in their favor. Our careful reading of the order signed by the trial court reveals that the escrowed sums were not included in the judgment. In any event, we find no contention by MTA that Schroeder and Templeton were not entitled to those sums. MTA’s contention is without merit.

We next consider the motions this court ordered taken with the case. MTA moved to strike portions of Schroeder and Templeton’s reply brief as outrageous, scandalous, impertinent, and unsupported by the record. To the extent that the matters in the briefs are not supported by the record, we will disregard them. (Keehner v. A.E. Staley Manufacturing Co. (1977), 50 Ill. App. 3d 258, 261, 365 N.E.2d 275, 277.) Under the circumstances, it serves no purpose to strike any portion of the briefs.

Also taken with the case was Schroeder and Templeton’s motion to substitute Meier-Technical Associates, Inc., for MTA as the real party in interest, and MTA’s objection thereto. No reason appears why this issue was not raised in the trial court. We find it waived. (Trisko v. Vignola Furniture Co. (1973), 12 Ill. App. 3d 1030, 1033, 299 N.E.2d 421, 424.) In any event, it does not appear that MTA has changed its name, is bankrupt, or no longer exists. (See Ill. Rev. Stat. 1983, ch. 110, par. 2—1008.) Implicit in the motion is the suggestion that MTA is no longer able to pay its debts to Schroeder and Temple-ton. Section 2—1008 is not designed to cope with such a situation. The motion is denied.

We next consider the points raised in Schroeder and Temple-ton’s brief. Schroeder and Templeton argue that the trial court erred in denying their motion for summary judgment as to amounts which Mr. Wamhoff’s accounting showed were owing to Schroeder and Templeton, which amounts were not disputed by MTA. We are precluded from considering Schroeder’s and Templeton’s contention by the well-settled rule that an order refusing to enter summary judgment is not appealable. (Bezin v. Ginsburg (1978), 59 Ill. App. 3d 429, 435, 375 N.E.2d 468, 473.) Further, Schroeder and Templeton do not suggest that judgment was not ultimately rendered in their favor as to these amounts. Accordingly, the issue is also moot. See Larson v. City of Loves Park (1964), 48 Ill. App. 2d 191, 193-94, 198 N.E.2d 525, 526.

Next, Schroeder and Templeton argue that the trial court erred in finding that they were not entitled to an accounting. Since they admit that an accounting was ultimately provided by MTA, this argument is apparently directed to their entitlement to damages based on MTA’s wrongful refusal to render an accounting. In our opinion, the trial court’s conclusion that Schroeder and Templeton were not entitled to damages on that basis was supported by the evidence of record. Templeton had no written employment contract. While Schroeder’s contract called for an accounting, the court could have and did find that Meier’s letter of January 26, 1981, was ineffective to terminate Schroeder’s employment and that Schroeder’s offered resignation the next day and MTA’s acceptance thereof (in contravention of the contract’s provisions governing termination) constituted a new contract and a waiver of the written contract’s termination provisions. A reviewing court will not substitute its judgment for that of the trial court in a bench trial unless that judgment is against the manifest weight of the evidence. (C. Hutchinson & Co. v. E.W. Lancaster, Inc. (1983), 119 Ill. App. 3d 610, 613, 456 N.E.2d 983, 985.) As to Schroeder and Templeton’s contention that the court may have found at some time prior to final judgment that they were entitled to an accounting, such conclusion was merely interlocutory and did not deprive the court of authority to later determine otherwise. See Richichi v. City of Chicago (1964), 49 Ill. App. 2d 320, 325, 199 N.E.2d 652, 655.

Schroeder and Templeton argue that the court erred in failing to rule on their motion for attorney fees pursuant to section 2—611 of the Civil Practice Law (Ill. Rev. Stat. 1981, ch. 110, par. 2—611). It is well settled that we do not have authority to consider a matter not passed on by the trial court (Trisko v. Vignola Furniture Co. (1973), 12 Ill. App. 3d 1030, 1033, 299 N.E.2d 421, 424), and that when the court reserves a ruling, a movant must seek a decision or ruling in order to preserve the motion for review (Village of Maywood v. Health, Inc. (1982), 104 Ill. App. 3d 948, 955, 433 N.E.2d 951, 957). Here, Schroeder and Templeton filed a general motion, without specification of the allegedly untrue statements and denials by MTA, and so far as this record shows did not request a hearing on the motion after suggesting that it be addressed after judgment. We find no cause for remandment on this issue.

Next, Schroeder and Templeton argue that the trial court erred in finding that Schroeder violated the terms of the employment contract. As no relief is sought in conjunction with this argument, other than a declaration that said finding was incorrect, we have no reason to consider it. Judgment may be sustained upon any ground warranted by the record, irrespective of whether the particular reasons given or the specific findings are correct. City of Rockford v. Maxwell (1968), 92 Ill. App. 2d 336, 340, 234 N.E.2d 563, 566.

Finally, in their “Conclusion and Prayer for Relief,” Schroeder and Templeton ask this court to reverse the trial court’s order that a check from K-Tron be endorsed and delivered to MTA. No arguments in support of said prayer for relief are included in Schroeder and Templeton’s appellants’ brief. Points not argued therein are waived. 87 Ill. 2d R. 341(e)(7).

In conclusion, we find no cause to reverse the judgment of the circuit court based on the arguments raised in Schroeder and Temple-ton’s appeal. We now turn to MTA’s cross-appeal.

MTA contends that the trial court erred in permitting Schroeder and Templeton to share in commissions on sales occurring within 30 days after their departure. The trial court concluded that under an “industry rule of thumb,” sales made within 30 days after termination of a sales representative were presumed to be the result of the efforts of that salesman prior to departure. Under the “procuring cause rule,” a party may be entitled to commissions on sales made after the termination of a contract if that party procured the sales through its activities prior to termination. The rule applies, however, only if the contract does not expressly provide when commissions will be paid. (Technical Representatives, Inc. v. Richardson-Merrell, Inc. (1982), 107 Ill. App. 3d 830, 833, 438 N.E.2d 599, 602.) This principle of law protects a salesman discharged prior to culmination of a sale but after he has done everything necessary to effect the sale. (Heuvelman v. Triplett Electrical Instrument Co. (1959), 23 Ill. App. 2d 231, 237, 161 N.E.2d 875, 878.) Meier’s testimony at trial indicates that this principle was incorporated into MTA’s contracts with the principals it represented. The instant-contract states that MTA shall on the final day of the salesman’s employment provide him with a full and complete accounting reflecting what commissions have been earned as of that time “that he is entitled to share in upon receipt by [MTA].” Thus, unlike Technical Representatives, Inc. v. Richardson-Merrell, Inc. (1982), 107 Ill. App. 3d 830, where the court held that the salesman was not entitled to the benefits of the procuring cause rule, in the case at bar the contract is not inconsistent with application of that rule. While the trial court could have found here that Schroeder forfeited his right to such commissions by failing to give 30 days’ notice of termination, we conclude that such a conclusion was not required in view of the parties’ mutually cavalier treatment of the contract’s termination provisions. As to Templeton, who had no written contract, MTA asserts no facts in, support of its position that 30 days’ notice of his resignation was “required.” The trial court did not err in applying the procuring cause rule, the evidence having failed to manifestly require a contrary result.

MTA argues that the trial court erred in requiring MTA to bear the $2,106 expense due to the Wamhoff accounting. However, MTA’s argument ignores the fact that said expense was deducted from gross commission revenues by the trial court in determining the amount of commission revenues to which Schroeder and Templeton were entitled. The expense of the accounting was incurred pursuant to determining the extent of commission revenues owed to Schroeder, Templeton, and Meier, and deduction of this expense from commission revenues resulted in a division of that expense among the three individuals entitled to share in the commissions. In our view, the court’s treatment of the accounting expense was equitable and should not be disturbed on review.

Next, MTA contends that the trial court erred in ex mero motu appointing a “receiver” to collect certain designated accounts receivable. Since MTA simply argues that said appointment should be reversed, it appears that MTA would suggest that it receive these accounts receivable itself. Schroeder and Templeton do not expressly argue this point; however, they ask that they be appointed receivers as to these accounts receivable.

On this point, the order of the trial court stated that these sums should be collected by the “receiver” and deposited with the court for distribution “if they were ‘earned’ during the business relationship of the parties as determined by this Order” unless the parties “can otherwise agree.” Obviously the parties have been unable to reach agreement on this matter.

MTA notes, and we agree, that the appointment of a “receiver” is an extraordinary and drastic remedy to be exercised with great caution. Mere dissension and dispute between parties does not justify so drastic a remedy. (Poulakidas v. Charalidis (1979), 68 Ill. App. 3d 610, 614-15, 386 N.E.2d 405, 408-09.) A court may on its own motion appoint a “receiver” whenever a proper case is made, even though neither party to the controversy asks for or desires his appointment. 65 Am. Jur. 2d Receivers sec. 101 (1972); see Firebaugh v. McGovern (1949), 404 Ill. 143, 147-48, 88 N.E.2d 473, 475.

We do not view the instant case as involving the appointment of a trae “receiver,” despite the trial court’s use of that term. Here, the “receiver” is not appointed to manage and operate an ongoing business, as in Firebaugh v. McGovern (1949), 404 Ill. 143, or even to handle all of the financial affairs of a business, as in Poulakidas v. Charalidis (1979), 68 Ill. App. 3d 610. Here, the so-called “receiver” has no duties except to deliver certain accounts receivable to the court. This is not a case in which such appointment will raise the concerns referred to by the court in Poulakidas v. Charalidis (1979), 68 Ill. App. 3d 610, i.e., impairment of corporate credit, interference with management, and court management of the business’ affairs. Here, the “receiver” merely receives funds with no discretion but to deposit them with the court. There is precedent for the deposit of funds with the court pending the court’s final ruling as to who is entitled to said funds. (American Re-Insurance Co. v. MGIC Investment Corp. (1979), 73 Ill. App. 3d 316, 324-25, 391 N.E.2d 532, 539.) We do not believe that the trial court abused its equitable discretion by taking steps to ensure preservation of the funds in question pending a final decision as to entitlement thereto, particularly in view of evidence that MTA is no longer active. Moreover, we have misgivings as to the appealability of this portion of the judgment, as ultimate entitlement to said funds has not yet been determined by the trial court. See In re Estate of Basile (1975), 32 Ill. App. 3d 618, 620, 336 N.E.2d 214, 215-16.

In sum, we have examined all of the issues advanced by the parties as to why this cause should be reversed. Insofar as said issues are reviewable by this court, we have concluded that the trial court committed no reversible error in the application of his discretion and that the court’s pertinent findings of fact were not contrary to the manifest weight of the evidence adduced. For the above reasons, the judgment of the circuit court of St. Clair County is affirmed.

Affirmed.

EARNS and HARRISON, JJ., concur.


text:
    ROSEMARY WEAVER, Plaintiff-Appellee, v. HUGH H. WATSON, Defendant-Appellant.
    Fifth District
    No. 5-84-0051
    Opinion filed December 27, 1984.

      Elmer Jenkins, of Benton, for appellant.
    Harris, Lambert & Wilson, of Marion, for appellee.
   JUSTICE WELCH

delivered the opinion of the court:

Plaintiff Rosemary Weaver filed her complaint on February 19, 1981, in the circuit court of Franklin County against defendant Hugh Watson, seeking that a receiver be appointed to operate the business known as Watson’s Jewelry, that Mr. Watson be enjoined from operating Watson’s Jewelry and disposing of its assets, that the business be ordered wound down, that a full accounting be made as to the assets and business of Watson’s Jewelry, and that Mrs. Weaver be paid for her share of Watson’s Jewelry. After a bench trial and an accounting, the court entered judgment for Mrs. Weaver and against Mr. Watson in the sum of $93,789.77 plus costs of suit. Mr. Watson appeals. There is no cross-appeal.

Most of the pertinent facts are undisputed. Mr. Watson and his brother Allie, Mrs. Weaver’s husband, entered into a written partnership agreement dated May 27, 1950, concerning the operation of Watson’s Jewelry, the partnership business. The agreement by its terms was to run for a period of 25 years, should both partners so long live. Under the articles of partnership, Mr. Watson was to devote the whole of his time and attention to the business; Allie was not required to devote any time to the business; Mr. Watson was to draw a monthly salary, to be determined by the partners, payable out of profits of the business; if there were no profits, Mr. Watson was to be paid whenever there were profits. Under the articles of partnership, if either partner were to die during the partnership, then his executor or administrator, or any person or persons to whom he should by will bequeath his share, was entitled to the share of such deceased partner in the capital, stock, property, and effects of the partnership, and might either continue as a partner or partners in the business or terminate the partnership as therein provided by a living partner. Under the agreement’s provisions governing termination, the partners were to fully and correctly account to each other, and were to divide everything in the same shares as their capital contributions; the agreement stated that the capital had been brought in by the partners in equal shares.

Allie died September 17, 1974, in his will leaving his entire estate to his wife, Mrs. Weaver. There is no indication of record that said will was ever admitted to probate. Mr. Watson and Mrs. Weaver met at various times after Allie’s death to discuss the business; the substance of these conversations is disputed. By written notice to Mr. Watson dated November 21, 1980, Mrs. Weaver gave Mr. Watson 90 days’ notice of termination of the partnership.

Mrs. Weaver testified that in a meeting between herself and Mr. Watson about four days after Allie’s death, she and Mr. Watson agreed to carry on the business as partners; that, a few days later, Mr. Watson brought her a bank signature card, which she signed, after which her name was added to the business checking account together with Mr. Watson’s and Allie’s name was dropped; she discovered in 1980 that on September 26, 1978, her name had been dropped, and Mr. Watson’s wife’s added, without Mrs. Weaver’s knowledge or permission; in 1976, she received from Mr. Watson a check for $1,000 with the note “dividends” on the face of the check; she received a $750 check in 1977 and a $500 check in 1978; in May 1979, Mr. Watson told her that the business had had a bad year and that there had been no profits and hence no checks; in June 1979, Mr. Watson offered her $15,000 for her share of the business.

Mr. Watson testified that his discussions with Mrs. Weaver after Allie’s death concerned what amount she would take for Allie’s interest in the business; she never set a price; she turned down an offer of $20,000; he never agreed to be her partner; the “dividend” payments were gratuitous and were made out of his affection for his deceased brother; he had put her name on the checks of the business to make her feel better; she had no interest in the business.

Per order of the trial court, Mr. Watson caused to be prepared a proposed accounting, dated September 17, 1981. After a hearing, the trial court found that accounting insufficient. A second accounting was filed December 1, 1981. After another hearing, the trial court on September 30, 1983, entered the judgment complained of. Inter alia, the court found that the partnership had dissolved upon Allie’s death and that at all times since Allie’s death Mr. Watson had been under a duty to render an accounting for Allie’s interest in the business, but had failed to do so and instead had used Allie’s property in the operation of Watson’s Jewelry. The judgment included amounts for (1) Allie’s estate’s share of the partnership property as of his death; (2) the estate’s share of the net profits of the business from Allie’s death to December 31, 1982, due to Mr. Watson’s retention of the estate’s property; and (3) statutory interest on the amounts owed for property and profits, less the amounts paid by Mr. Watson to Mrs. Weaver from 1976 to 1978. The court reserved jurisdiction as to accounting for 1983 profits, if any. Mrs. Weaver’s prayer for appointment of a receiver was denied.

Mr. Watson argues that the trial court erred in failing to find Mrs. Weaver’s claim barred by the applicable statute of limitations. Mr. Watson argues that Mrs. Weaver’s cause of action accrued upon Allie’s death and thus is barred by the five-year statute of limitations applicable to actions on unwritten contracts and for actions for injury done to property, real or personal, or to recover the possession of personal property or damages for the detention or conversion thereof, and all civil actions not otherwise provided for. (Ill. Rev. Stat. 1973, ch. 83, par. 16.) Mrs. Weaver argues that she had no right to sue for an accounting until she dissolved the partnership by letter, effective 90 days after the receipt thereof, and that her cause of action accrued when the partnership was dissolved. Alternatively, Mrs. Weaver contends that her cause of action accrued on January 7, 1980, when she discovered that her name had been dropped from the business checking account and thus discovered Mr. Watson’s position that she had no interest in the partnership. Mrs. Weaver also argues that her action is based on the written partnership agreement and hence that the applicable statute of limitations is the 10-year statute governing actions on written contracts or other evidences of indebtedness in writing. Ill. Rev. Stat. 1973, ch. 83, par. 17.

The statute of limitations to be applied is to be determined by the type of injury sustained, rather than the nature of the facts from which the claim arises. (Schreiber v. Eastern Airlines, Inc. (1976), 38 Ill. App. 3d 556, 558, 348 N.E.2d 218, 219-20.) Under section 16 of the Limitations Act (Ill. Rev. Stat. 1973, ch. 83, par. 17), a contract cannot be said to be in writing unless the parties thereto, as well as the terms and provisions thereof, can be ascertained from the instrument itself. Thus, where parol evidence must be resorted to to show the existence of a contractual relationship between the plaintiff and the defendant, the five-year statute rather than the 10-year statute applies. Novosk v. Reznick (1944), 323 Ill. App. 544, 549, 56 N.E.2d 318, 321.

Recognizing the applicability of the rule in Novosk v. Reznick, Mrs. Weaver argues that Mr. Watson’s duty was to account to his brother, and that this is what the trial court ordered him to do. However, Mrs. Weaver’s action was brought in her own right, and judgment entered in her favor personally, not as representative of an estate. Parol evidence was necessary to show her personal right to recover based on the contract of the partners. The five-year statute applies in this case.

Accordingly, we must decide whether Mrs. Weaver’s cause of action accrued more than five years prior to the February 19, 1981, filing of her complaint. Two events suggest themselves as having commenced the running of the five-year period, the first being Allie’s death in 1974 and the second being Mrs. Weaver’s 1980 discovery that her name had been dropped from the business checking account. The latter event was expressly relied upon in Mrs. Weaver’s complaint as revealing to her that her partnership with Mr. Watson was denied by him. The complaint was filed within five years of this event.

The result is no different if Mrs. Weaver’s cause of action is deemed to have accrued upon Allie’s death. Mr. Watson was the dominant figure in the partnership business even when his brother was alive. The placing of Mrs. Weaver’s name on the business checking account and the annual “dividend” payments were, if not evidence of a partnership agreement between herself and Mr. Watson, at least a representation that she had an interest in the business and that that interest would be recognized. A surviving partner bears a fiduciary relationship toward the estate of a deceased partner. (Jackson v. Jackson (1951), 343 Ill. App. 3d 31, 45, 98 N.E.2d 169, 176.) Under the instant circumstances, we are of the view that the statute of limitations was tolled until Mrs. Weaver learned of Mr. Watson’s actions inconsistent with her claimed interest in the partnership business. (See Higgins v. Higgins (1966), 72 Ill. App. 2d 179, 188, 219 N.E.2d 88, 93-94.) The trial court did not err in failing to find Mrs. Weaver’s action barred by the five-year statute of limitations.

Mr. Watson argues that the trial court erred in failing to find Mrs. Weaver’s action barred by laches. Laches is applied where there is such neglect or omission to assert a right, taken in conjunction with a lapse of time of more or less duration and other circumstances causing prejudice to an adverse party, as will operate to bar relief in equity. It is necessary to examine the facts of each case to determine whether laches applies. (Thurston v. State Board of Elections (1979), 76 Ill. 2d 385, 388, 392 N.E.2d 1349, 1350-51.) Laches will not be found merely because of lapse of time. (Kozak v. Retirement Board (1981), 99 Ill. App. 3d 1015, 1019, 425 N.E.2d 1371, 1374, aff'd (1983), 95 Ill. 2d 211, 447 N.E.2d 394.) The passage of time must have caused such a hardship to the defendant that granting relief to the plaintiff would be inequitable and unjust. (Harper v. City Mutual Insurance Co. (1978), 67 Ill. App. 3d 694, 699, 385 N.E.2d 75, 79.) Laches will not be found if the delay is short of the statutory period of limitations and there has been no change of circumstances. Pinelli v. Alpine Development Corp. (1979), 70 Ill. App. 3d 980, 1004, 388 N.E.2d 943, 959.

Mr. Watson argues that he was prejudiced by Mrs. Weaver’s delay in filing her action in that he was induced to dispose of the written records which he needed to prove his position as to Allie’s share of the partnership business. We disagree in view of Mr. Watson’s testimony at trial and his admission in his brief that he had met several times with Mrs. Weaver beginning in 1974 in an effort to agree upon compensation for her share. Such records were pertinent to any informed attempt to determine the worth of Allie’s share. Thus Mr. Watson’s disposal of his records does not appear to have been attributable to any delay on Mrs. Weaver’s part. The trial court, having failed to find Mrs. Weaver’s claim barred by the statute of limitations, did not err in refusing to find her guilty of laches.

Mr. Watson argues that Mrs. Weaver is bound by the unappealed September 16, 1981, written order in which the trial court concluded that Mrs. Weaver had done nothing after Allie’s death to “continue” the partnership per the partnership agreement. Mr. Watson argues that the trial court in its final judgment nevertheless awarded Mrs. Weaver damages as though she had been a partner after Allie’s death. There are two answers to this contention. First, the final judgment appealed from is not inconsistent with the September 16, 1981, order. In the final judgment, Mrs. Weaver was found entitled to her husband’s share as of his death, plus damages resulting from Mr. Watson’s failure to account for and pay over that share at that time. Second, even if the September 16, 1981, order were inconsistent with the final judgment, such inconsistency alone would not require reversal of the judgment. The order of September 16, 1981, did not finally determine the rights of the parties. Such determination could not be made until an accounting was rendered. Thus the September 16, 1981, order was merely interlocutory. (See In re Estate of Basile (1975), 32 Ill. App. 3d 618, 620, 336 N.E.2d 214, 215.) An interlocutory order may be modified or vacated at any time prior to final judgment. Richichi v. City of Chicago (1964), 49 Ill. App. 2d 320, 325, 199 N.E.2d 652, 655.

Mr. Watson argues that the evidence establishes that Mrs. Weaver did not act to “continue” the partnership after Allie’s death and that the court's apparent conclusion otherwise was contrary to the manifest weight of the evidence. Our review of the judgment complained of indicates that the trial court agreed with Mr. Watson on this point. Said judgment does not depend on the conclusion that Mr. Watson and Mrs. Weaver ever operated the business as partners.

Finally, Mr. Watson contends that the trial court erred in awarding Mrs. Weaver prejudgment interest as to the amounts due her from Allie’s share of the partnership. A partner is not liable for interest merely because the property is in his hands for the purpose of winding up the affairs of the partnership, and whether he may be liable depends on the circumstances of each case. (Randolph v. Inman (1898), 172 Ill. 575, 577, 50 N.E. 104, 105.) Where the circumstances are such as equitably to demand payment of interest, as where one partner has retained the money for an unreasonable length of time, or where he is wrongfully withholding it (Korziuk v. Korziuk (1958), 13 Ill. 2d 238, 148 N.E.2d 727), or where one partner has improperly used or neglected to account for the assets of the partnership (Randolph v. Inman (1898), 172 Ill. 575, 50 N.E. 104, 105; Snell v. Taylor (1899), 182 Ill. 473, 475-76, 55 N.E. 545, 547), interest will be allowed from the time when the partnership accounts should have been settled (Korziuk v. Korziuk (1958), 13 Ill. 2d 238, 148 N.E.2d 727). Here, the trial court found that since Allie’s death, Mr. Watson had been under a duty at all times to render an accounting for Allie’s interest in the partnership, yet had retained possession of Allie’s property and had used it in the business. These findings are sufficient to support the award of interest, and are not manifestly contrary to the weight of the evidence. (See Pinelli v. Alpine Development Corp. (1979), 70 Ill. App. 3d 980, 1006, 388 N.E.2d 943, 960.) We find no error as to the award of interest.

For the foregoing reasons, the judgment of the circuit court of Franklin County is affirmed.

Affirmed.

EARNS and HARRISON, JJ., concur.


author: JUSTICE KASSERMAN

text:
    JOAN CAROL SEBRIGHT, Petitioner-Appellant, v. BOARD OF EDUCATION OF ALTAMONT COMMUNITY UNIT SCHOOL DISTRICT NO. 10, EFFINGHAM COUNTY, Respondent-Appellee.
    Fifth District
    No. 5—83—0734
    Opinion filed December 19, 1984.
    Rehearing denied January 24, 1985.

      Drach & Deffenbaugh, P.C., of Springfield, for appellant.
    Miller, Tracy, Braun & Wilson, Ltd., of Monticello, for appellee.
   JUSTICE KASSERMAN

delivered the opinion of the court:

Plaintiff, Joan Carol Sebright, filed a complaint for declaratory judgment in the circuit court of Effingham County against defendant, the Board of Education of Altamont Community Unit School District No. 10. Plaintiff prayed that the circuit court declare her to be a teacher with lZ^z years of experience during the 1982-1983 school year and entitled to be paid on defendant’s salary schedule in accordance with such experience. Defendant’s motion to dismiss the complaint was granted by the trial court, and plaintiff has perfected this appeal.

Plaintiff’s complaint alleges the following facts, which defendant does not dispute: Plaintiff was employed by defendant as a teacher on a contractual continued-service status for the school year 1981-1982 and was credited with IDA years of teaching experience for purposes of the salary schedule which defendant had adopted. On December 10, 1981, plaintiff was injured in the course of her employment but continued to work through December 22, 1981, when school was recessed for Christmas vacation. It was stipulated by the parties that on this date plaintiff had taught 82 days during the 1981-1982 school year. After the Christmas holiday, plaintiff did not return to school because of her injury. She was paid for 54 days of accumulated sick leave through March 30, 1982, and for the remainder of the school year she was paid workers’ compensation benefits.

Prior to the beginning of the 1982-1983 school term, plaintiff was informed by defendant that she would be given one-half year of teaching experience credit for the 1981-1982 school year and that she would be paid based upon 12 years of experience for the 1982-1983 school year. Plaintiff maintained that she was entitled to a full year of credit on the salary schedule and that she should have been paid on the basis of 12x/2 years of teaching experience. Upon defendant’s refusal to grant the credit requested by plaintiff, plaintiff filed the instant suit praying for a declaration that she was a teacher with 12x/2 years of experience for the. school year 1982-1983. Defendant’s motion to dismiss plaintiff’s complaint was granted by the trial court without any recital of the basis for such dismissal.

The sole issue raised by the instant appeal is whether the trial court erred in granting defendant’s motion to dismiss plaintiff’s complaint. Both parties in their brief and in oral argument appear to concede that the determination of this issue must be based solely on plaintiff’s assertion that section 4(h) of the Workers’ Compensation Act (Ill. Rev. Stat. 1981, ch. 48, par. 138.4(h)) will support her theory of recovery. However, the trial court’s order dismissing plaintiff’s complaint did not specify the grounds for such dismissal, and the application of section 4(h) of the Workers’ Compensation Act was not raised until the instant case reached this court on appeal. Therefore, we conclude that it is essential that we also determine whether plaintiff’s complaint states a cause of action based on the allegations that the determination by defendant of plaintiff’s salary status was arbitrary and unreasonable.

Defendant’s motion to dismiss and accompanying affidavit of the chief executive administrative officer of defendant established that defendant had adopted a policy in 1978 which provided as follows:

“A certified teacher will be granted one-half year’s credit on the salary schedule if he or she has taught at least eighty-six (86) days and one year’s credit if he or she has taught at least one hundred seventy-one days (171) days during a regular school year. One one-half or whole year’s credit can be counted toward experience on the current salary schedule adopted by the Board of Education.”

We first conclude that plaintiff’s reliance on section 4(h) of the Workers’ Compensation Act is misplaced. While it is true, as plaintiff points out, that an employee discharged in retaliation for filing a workers’ compensation claim has a cause of action against his or her employer (Kelsey v. Motorola, Inc. (1978), 74 Ill. 2d 172, 384 N.E.2d 353; Wyatt v. Jewel Companies, Inc. (1982), 108 Ill. App. 3d 840, 439 N.E.2d 1053; Leach v. Lauhoff Grain Co. (1977), 51 Ill. App. 3d 1022, 366 N.E.2d 1145), we do not find these cases cited by plaintiff to be persuasive in the case at bar. We do not view section 4(h) of the Workers’ Compensation Act as a limitation on defendant’s authority to determine teachers’ salaries on the basis of actual teaching experience.

Plaintiff also maintains that her complaint stated a cause of action by alleging that the defendant’s application of its policy regarding crediting time for teaching experience was arbitrary and unreasonable and the trial court’s granting of defendant’s motion to dismiss was consequently improper. We agree with this contention. In its discretionary control over salaries, a school board is constitutionally prohibited from taking actions which are “arbitrary, discriminatory and unreasonable.” Richards v. Board of Education (1960), 21 Ill. 2d 104, 109, 171 N.E.2d 37, 41; Hardway v. Board of Education (1971), 1 Ill. App. 3d 298, 301, 274 N.E.2d 213, 216.

The parties do not dispute the fact that plaintiff had worked only 82 days during the 1981-1982 school year, yet she received one-half year teaching experience credit under defendant’s policy which allows such credit only after a teacher has taught for 86 days. Defendant offers no explanation for this action. However, the facts suggest that defendant added four days of plaintiff’s accrued sick leave in order to grant plaintiff one-half year of teaching experience. If this is so, then defendant has arbitrarily counted some of plaintiff’s sick leave and refused to count other sick leave, despite its argument on appeal that only actual teaching time, not sick time, should be credited towards a teacher’s experience. If defendant decides to grant teaching experience credit for sick leave, it must be done in a consistent, nonarbitrary manner.

We conclude, therefore, that plaintiff’s complaint stated a cause of action for declaratory judgment and that the trial court erred in dismissing it.

For the foregoing reasons, the judgment of the circuit court of Effingham County is reversed and this cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

JONES, P.J., and WELCH, J., concur.


author: JUSTICE HARRISON

text:
    GREGORY N. LARSEN, Plaintiff-Appellee, v. VIC TANNY INTERNATIONAL, Defendant-Appellant.
    Fifth District
    No. 5-84-0173
    Opinion filed November 28, 1984.

      Dennis E. Rose, of Donovan, Hatch & Constance, P.C., of Belleville, for appellant.
    Churchill, Nester & McDonnell, of Belleville (Joseph B. McDonnell, of counsel), for appellee.
   JUSTICE HARRISON

delivered the opinion of the court:

Defendant Vic Tanny International, a corporation, appeals the denial of its motion for summary judgment against plaintiff Gregory N. Larsen. The issue upon which defendant’s motion hinges is the validity of an exculpatory clause in a contract between plaintiff and defendant. Upon denying defendant’s motion, the circuit court of St. Clair County certified the question for interlocutory appeal pursuant to Supreme Court Rule 308 (87 Ill. 2d R. 308). We granted the appeal.

Plaintiff, a member of defendant’s organization, alleged that he was injured while utilizing defendant’s health club facilities. Plaintiff’s complaint stated that plaintiff sustained serious internal injuries as a result of inhaling gaseous vapors. Plaintiff further alleged that his injuries were directly caused by one of the following acts or omissions of defendant:

“(a) Negligently and carelessly combining certain cleaning compounds in such a manner that an explosion of hydrochloric acid and gas occurred;
(b) Negligently and carelessly failing to warn defendant’s patrons, including plaintiff, of the existence of vapors of hydrochloric acid;
(c) Negligently and carelessly failing to properly train and supervise its employees in the preparation and use of potentially explosive chemicals.”

Plaintiff’s membership contract contained the following provisions:

“By the use of the facilities of Seller and/or by the attendance at any of the gymnasiums owned by Seller, the Member expressly agrees that Seller shall not be liable for any damages arising from personal injury sustained by the Member or his guest in, on or about the premises of the said gymnasiums or as a result of their using the facilities and the equipment therein. By the execution of this agreement Member assumes full responsibility for any such injuries or damages which may occur to the Member or guest in, on or about the said gymnasiums and further agrees that Seller shall not be liable for any loss or theft of personal property. Member assumes full responsibility for any injuries, damages or losses which may occur to Member or guest, in, on or about the premises of said gymnasiums and does hereby fully and forever release and discharge Seller and all associated gymnasiums, their owners, employees and agents from any and all claims, demands, damages, rights of action or causes of action, present or future, whether the same be known or unknown, anticipated or unanticipated, resulting from or arising out of the Member’s or his guests’ use or intended use of the said gymnasium or the facilities and equipment thereof.”

Plaintiff admitted in his deposition that he read the membership contract before signing it.

The courts of Illinois have long held that, under appropriate circumstances, a person may by contract avoid liability for his or her negligence. (Jackson v. First National Bank (1953), 415 Ill. 453, 460, 114 N.E.2d 721.) In the absence of fraud or wilful and wanton negligence, exculpatory contracts will be enforced unless “(1) it would be against the settled public policy of the State to do so, or (2) there is something in the social relationship of the parties militating against upholding the agreement.” (415 Ill. 453, 460, 114 N.E.2d 721.) Although exculpatory contracts or clauses are subject to the general rule that they are to be construed most strongly against their maker (Halperin v. Darling & Co. (1967), 80 Ill. App. 2d 353, 357, 225 N.E.2d 92), a specific reference to the maker’s “negligence” or its cognates is not required. Berwind Corp. v. Litton Industries, Inc. (7th Cir. 1976), 532 F.2d 1, 4.

The obvious rationale behind this rule is that a plaintiff who expressly consents to relieve a defendant of an obligation of conduct toward the plaintiff assumes the risk of injury as a result of the defendant’s failure to adhere to the obligation. (Russo v. The Range, Inc. (1979), 76 Ill. App. 3d 236, 238, 395 N.E.2d 10.) The doctrine of assumption of risk presupposes, however, that the danger which causes the injury is such that it ordinarily accompanies the activities of the plaintiff, and that the plaintiff knows or should know both the danger and the possibility of injury prior to its occurrence. (76 Ill. App. 3d 236, 237.) The standard to be applied is a subjective one geared to a particular plaintiff and her situation (Provence v. Doolin (1980), 91 Ill. App. 3d 271, 280, 414 N.E.2d 786), and the determination ordinarily will be made by a jury. (Williams v. Brown Manufacturing Co. (1970), 45 Ill. 2d 418, 430, 261 N.E.2d 305.) Specifically, the Illinois pattern jury instruction on assumption of risk pursuant to a contractual relationship requires proof that “the plaintiff knew these dangers [which caused the injury] existed and realized the possibility of injury from them or in the exercise of ordinary care would have known the dangers existed and realized the possibility of injury from them and entered into the [contract] voluntarily.” Illinois Pattern Jury Instructions, Civil, No. 13.01 (2d ed. 1971).

Foreseeability of a specific danger is thus an important element of the risk which a party assumes, and, for this reason, serves to define the scope of an exculpatory clause. This is but another way of stating that, although the type of negligent acts from which a person expressly agrees to excuse another need not be foreseen with absolute clarity, such acts cannot lie beyond the reasonable contemplation of the parties; or, as stated in a comment to the section of the Restatement (Second) of Torts recognizing the validity of express assumptions of risk: “In order for the agreement to assume the risk to be effective, it must also appear that its terms were intended by both parties to apply to the particular conduct of the defendant which caused the harm.” (Restatement (Second) of Torts sec. 496B, comment d (1977).) No agreement to assume unknown risks shall be inferred. Van Tuyn v. Zurich American Insurance Co. (Fla. App. 1984), 447 So. 2d 318, 321.

Plaintiff in the instant action claims injury resulting from defendant’s act of mixing chemical compounds in a manner which produced an explosion of harmful vapors. The question upon which the enforceability of the exculpatory clause hinges is whether defendant’s conduct and the risk of injury inherent in this conduct was of a type intended by the parties to fall within the scope of exculpation. Summary judgment is a drastic remedy, and should be granted only when, construing all the evidence most favorably to the nonmoving party, no genuine issue of fact is presented and the moving party is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1981, ch. 110, par. 2— 1005; Mitchell v. Simms (1979), 79 Ill. App. 3d 215, 220, 398 N.E.2d 211.) Where any doubt exists regarding the right of a movant to summary judgment, i.e., where fair-minded people could draw different inferences from the facts presented, the issue should be submitted to a trier of fact. (Marciniak v. O’Connor (1981), 102 Ill. App. 3d 381, 386, 430 N.E.2d 536.) It is our judgment that the question of whether defendant’s conduct and the danger to which plaintiff was subjected was of a type intended by the parties to be excused by the exculpation clause in plaintiff’s membership contract presents a genuine issue of fact which cannot be resolved by the evidence of record. The enforceability of the exculpatory provision is not, therefore, established as a matter of law.

A plaintiff’s decision to assume the risk of injury resulting from a defendant’s conduct attains efficacy only in a context in which the plaintiff may foresee the range of possible dangers to which he subjects himself, thus enabling the plaintiff to minimize the risk by altering his conduct in order to employ a proportionately higher degree of caution. A plaintiff agreeing to assume a risk of injury in partial exchange for the right to use gymnasium facilities could reasonably contemplate the possibility of injury resulting from slippery surfaces in or around a swimming pool (Owen v. Vic Tanny’s Enterprises (1964), 48 Ill. App. 2d 344, 199 N.E.2d 280) or a steam room (Kubisen v. Chicago Health Clubs (1979), 69 Ill. App. 3d 463, 388 N.E.2d 44), and could, upon reflection, exercise increased care while utilizing these facilities. The assertion that such a plaintiff would necessarily contemplate the danger of combustible cleaning compounds being mixed in such a manner as to injure the plaintiff’s respiratory system and that the plaintiff could accordingly exercise a more rigid standard of caution either by avoiding certain areas of the gymnasium or by altering his breathing habits while present in those areas is untenable according to the standards of common experience.

Defendant argues that the instant case presents the same essential fact pattern as that of Owen v. Vic Tanny’s Enterprises (1964), 48 Ill. App. 2d 344, 199 N.E.2d 280, where the plaintiff, having signed an exculpatory agreement releasing the defendant from liability for personal injury sustained on or about the premises of a gymnasium of which plaintiff was a member, sued defendant for injuries plaintiff sustained as a result of slipping and falling in an area adjacent to a swimming pool. The appellate court held that the exculpatory clause did not refer only to injuries arising from the use of facilities which were not, in themselves, defective. The court further held that public policy did not forbid the enforcement of exculpatory clauses in contracts for membership in gymnasiums, since “[t]he scarcity of facilities for gymnastic and reducing activities hardly creates such a disparity of bargaining power that plaintiff is forced to accept such terms without alternatives.” 48 Ill. App. 2d 344, 348.

We believe that Owen is distinguishable from the instant case, as we have explained, on the ground that the injury in Owen was of a type reasonably within the contemplation of the parties and, therefore, within the scope of the intended exculpation of liability. For this reason, we do not reach the question of whether the exculpatory agreement in the instant action controverts public policy. We note, however, that certain developments in the statutory and case law of other jurisdictions, reflecting an evolution in societal attitudes, create some doubt as to whether the reasoning behind the 20-year-old Owen decision should be affirmed. The New York case of Ciofalo v. Vic Tanny Gyms, Inc. (1961), 10 N.Y.2d 294, 220 N.Y.S.2d 962, 177 N.E.2d 925, cited by the Owen court in support of the proposition that there existed “no over-riding public interest” compelling the court to hold ineffectual an exculpatory clause in a gymnasium membership contract, has been superseded by a statutory provision enacted for the express purpose of overruling the holding of Ciofalo. (N.Y. Gen. Oblig. Law sec. 5—326 (Consol. 1977); see Beardslee v. Blomberg (1979), 70 App. Div. 2d 732, 733, 416 N.Y.S.2d 855, 857 (Kane, J., concurring), 70 App. Div. 2d 732, 733, 416 N.Y.S.2d 855, 858 (Mikoll, J., concurring).) Moreover, noting that “the American public is obsessed with health and physical fitness” and that “we as a society benefit from a healthy, fit populace,” two justices of the Supreme Court of Minnesota recently have taken the position that gymnasiums in fact offer the type of public service properly characterized as “essential,” necessarily investing the owner with a decisive advantage of bargaining strength over any member of the public seeking her services. Schlobohm v. Spa Petite, Inc. (Minn. 1982), 326 N.W.2d 920, 927 (Wahl, J., dissenting).

The order of the circuit court denying defendant’s motion for summary judgment is affirmed.

Affirmed.

WELCH, P.J., and KASSERMAN, J., concur.


text:
    THE PEOPLE ex rel. PAUL M. HAAS, St. Clair County Treasurer and ex officio Collector of Taxes, Plaintiff-Appellant, v. AMAX ZINC CO., INC., et al., Defendants-Appellees.
    Fifth District
    No. 5—83—0353
    Opinion filed November 28, 1984.
    John Baricevic, State’s Attorney, of Belleville (Kenneth R. Boyle, Stephen E. Norris, and Debra A. Buchman, all of State’s Attorneys Appellate Service Commission, of counsel), for appellant.
    James R. Parham, of Pope & Driemeyer, of Belleville, for appellees.
   JUSTICE KASSERMAN

delivered the opinion of the court:

The circuit court of St. Clair County sustained objections to the 1978 and 1979 taxes levied by the St. Clair County Board for the public building commission fund. The objectors whose tax objections were sustained are defendants, AMAX Zinc Company, Inc.; East St. Louis Castings Company; ESTECH General Chemicals Corporation (Swift Agricultural Chemicals Corp.); First Illinois Bank; Illinois-American Water Company; Illinois Bell Telephone Company; John Morrell & Co. (Division of Hunter Packing Co.); La Salle National Bank Trust #45774; Mobil Oil Corporation; National Nursing Homes, Inc.; Pfizer Inc.; Swift Independent Packing Company (Swift & Co.); The Reverend Oblate Fathers of Illinois, Inc.; Union Electric Company; Norfolk and Western Railway Company; Norfolk and Western Railway Company (Lessee-Assignee of Wabash Railroad Company); and Illinois Central Gulf Railroad Company. Plaintiff, the treasurer and ex officio collector of taxes for St. Clair County, has appealed, contending that such levies were proper.

The county boards of the respective counties are required each year to determine the amount of all county taxes to be raised for all purposes. (Ill. Rev. Stat. 1983, ch. 120, par. 637.) This appeal involves certain items included in the 1978 and 1979 appropriations by St. Clair County and relates to the annual rent payable under certain leases between St. Clair County and the Public Building Commission of St. Clair County.

On March 28, 1978, the county entered into an agreement with the Public Building Commission whereby the commission would construct a juvenile detention home and lease the same to the county. The annual rent under that lease was $375,000, payable monthly beginning April 15, 1978. As a result, the lease obligated the county to commence monthly rent payments before it was able to collect taxes for that purpose due to the fact that taxes levied for any given year are not collected until the following year. In its tax levy for the year 1978, the county appropriated the sum of $375,000 to defray the annual rent payable beginning in 1980 plus an additional $512,000 to reimburse the county for rent payments required by the lease prior thereto.

The authority to levy taxes for the purpose of paying the rent required by leases between a county and a public building commission is granted by section 18 of the Public Building Commission Act (Ill. Rev. Stat. 1983, ch. 85, par. 1048). The law in force at the time of this litigation provided:

“Whenever, and as often as a municipal corporation having taxing power enters into a lease with a Public Building Commission, the governing body of such municipal corporation shall provide by ordinance or resolution, as the case may be, for the levy and collection of a direct annual tax sufficient to pay the annual rent payable under such lease as and when it becomes due and payable. A certified copy of the lease of such municipal corporation and a certified copy of the tax levying ordinance or resolution, as the case may be, of such municipal corporation shall be filed in the office of the county clerk in each county in which any portion of the territory of such municipal corporation is situated, which certified copies shall constitute the authority for the county clerk or clerks, in each case, to extend the taxes annually necessary to pay the annual rent payable under such lease as and when it becomes due and payable. Upon such filing in the office of the county clerk or clerks of the proper county, it shall be the duty of such county clerk or clerks to ascertain the rate per cent which, upon the value of all property subject to taxation within the municipal corporation, as that property is assessed or equalized by the Department of Local Government Affairs, will produce a net amount of not less than the amount of the annual rent reserved in such lease. The county clerk or clerks shall thereupon, and thereafter annually during the term of the lease, extend taxes against all of the taxable property contained in that municipal corporation sufficient to pay the annual rental reserved in such lease. Such tax shall be levied and collected in like manner with the other taxes of such municipal corporation and shall be in addition to all other taxes now or hereafter authorized to be levied by that municipal corporation. *** The fund realized from such tax levy shall be set aside for the payment of the annual rent and shall not be disbursed for any other purpose until the annual rental has been paid in full. ***.” Ill. Rev. Stat. 1977, ch. 85, par. 1048.

In compliance with section 18, a certified copy of the March 28, 1978, juvenile detention home lease was filed in the office of the county clerk. However, the resolution providing for the levy and collection of an annual tax sufficient to pay the annual rent under such lease, as required by section 18, was not passed until March 26, 1979, and full compliance with section 18 was not accomplished until November 20, 1980, when a certified copy of the resolution was filed in the office of the county clerk. Notwithstanding, when the county clerk extended the 1978 taxes, both of the above amounts were included in his calculations.

In 1979, in extending taxes against the assessed value of the taxable property within the county, the county clerk again included the amount of $375,000 to pay the regular annual rent for the juvenile detention home. Also included was an additional $600,000, which was purportedly included to correct an error in the 1977 appropriations made to defray the annual rent payable to the public building commission under leases pertaining to the county courthouse and jail. Neither the juvenile detention home appropriation nor the additional courthouse and jail appropriation had been included in the county board’s tax levy for the year 1979.

Defendants paid their 1978 and 1979 taxes under protest and petitioned the circuit court for a refund of that portion of such taxes relating to each of the above-described appropriations. Defendants contended that section 18 of the Public Building Commission Act requires that there be filed in the office of the county clerk a certified copy of the resolution providing for the levy and collection of an annual tax sufficient to pay the rent under the juvenile detention home lease. Defendants allege that no such resolution was filed with the county clerk and that, as a consequence, the county clerk had no authority to extend a tax to cover either of the two 1978 appropriations or the 1979 appropriation pertaining to the juvenile detention home lease. The 1979 appropriation of $600,000 was also objected to, the grounds being that a tax for that purpose had not been levied. The circuit court sustained the defendants’ objections and ordered the refund of that portion of defendants’ 1978 and 1979 taxes relating to the appropriations objected to by defendants.

On appeal, plaintiff contends that the extension of taxes for the rent payments under the juvenile detention home lease was proper. In this regard, plaintiff urges that the failure to file a certified copy of the March 26, 1979, resolution authorizing the county clerk to extend taxes for that purpose was not fatal to the levy by virtue of section 236 of the Revenue Act of 1939 (Ill. Rev. Stat. 1983, ch. 120, par. 717). Section 236 provides:

“In all judicial proceedings of any kind for the levying and collection of taxes, no error or informality of any officer or officers in making any tax levy or in certifying or filing the same not affecting the substantial justice of the levy itself, shall vitiate or in any manner avoid the levy or affect the tax and where such an error or informality in a levy, its certification, filing or publication can be corrected by amendment, or a levy can be sufficiently itemized, the purpose defined and made certain by amendment, made prior to the entry of any order of court affecting said levy or the collection of taxes thereon, such amendment or amendments, certification, filing or publication may be made by the proper officer or officers or corporate or other governing authorities of the taxing bodies affected and the ordinance, resolution, publication or certificate, respectively, as amended, certified, filed or published, shall, upon proof of such amendment or amendments, certification, filing or publication being made to the court, have the same force and effect as though originally adopted, published, filed and certified in the amended form: Provided the aggregate amount or rate of the original levy shall not be thereby increased. No statute now or hereafter enacted terminating the time within which appropriations or tax levies may be made, published, certified or filed, shall apply to any republication, recertification or refiling, or to any amendment or revision authorized or permitted by this section unless such statute shall specifically and expressly repeal, modify or amend this section.” (Ill. Rev. Stat. 1983, ch. 120, par. 717.)

Plaintiff contends that section 236 is controlling because at the time the 1978 and 1979 taxes were extended, the resolution authorizing the levy properly had been adopted and an unsigned copy of the resolution was allegedly on file in the office of the county clerk. Prior to the entry of the final judgment in the case at bar, the county filed with the county clerk a certified copy of the resolution levying the taxes in question. Plaintiff contends that such filing places the county in full compliance with the mandate of section 18 of the Public Building Commission Act by virtue of section 236.

At the outset we note that for section 236 to be operative there must have been an otherwise valid levy. (People ex rel. Franklin v. Wabash R.R. Co. (1944), 387 Ill. 450, 455, 56 N.E.2d 820, 822.) Furthermore, the levy must be made at or within the time prescribed by the statute authorizing it, and a levy made after the prescribed time is void. (People ex rel. Joseph v. Pennsylvania R.R. Co. (1959), 18 Ill. 2d 61, 63, 162 N.E.2d 350, 351.) In the case at bar, the resolution authorizing the 1978 tax levy for the juvenile detention home lease payments was not adopted until March 26, 1979. Therefore, it was not timely adopted and did not operate to authorize the county clerk to include such levy in the extension of taxes for the year 1978. Section 18 of the Public Building Commission Act provides that the tax levied to pay the rent under leases with a public building commission shall be levied and collected in like manner as the other taxes of the taxing authority that is party to the lease. Under the Revenue Act of 1939, in order for the levy to have been timely, it would have been required to have been made at or before the adjournment of the St. Clair County Board’s September 1978 session. (Ill. Rev. Stat. 1983, ch. 120, pars. 637, 638.) It was not. Therefore, section 236 of the Revenue Act of 1939 has no application to the 1978 levies in question because they were not made in apt time.

It is not disputed that the resolution authorizing the levy for the juvenile detention home lease payments was adopted prior to the adjournment of the St. Clair County Board’s September 1979 session; however, the circuit court refused to apply section 236 to uphold the 1979 extension of taxes for such purposes on the grounds that there still was no valid levy. The circuit court held that under section 18 of the Public Building Commission Act, the filing of a certified copy of the resolution authorizing the levy was a condition precedent to a valid levy and that because a certified copy of the resolution was not timely filed, the 1979 levy was thereby void, precluding the application of section 236.

One of the cardinal rules of statutory construction is that a statute must be construed so as to give effect to the legislative intent. (People ex rel. Hopf v. Barger (1975), 30 Ill. App. 3d 525, 536, 332 N.E.2d 649, 658-59.) The intent of section 236 is to excuse the failure to certify or file an otherwise valid tax levy. To hold, as the circuit court did in the instant case, that a tax levy may not benefit from this provision unless it has been certified and timely filed defeats that legislative intent. Section 236 does not warrant such construction; therefore, we reverse that portion of the circuit court’s judgment declaring void that portion of the 1979 taxes levied for the juvenile detention home lease. The resolution authorizing that levy was timely made, and it is not contended that such levy was invalid except for the failure to file a certified copy thereof. We conclude that such defect is procedural and not substantive and should not affect the validity of the tax levy; therefore, the county having complied with the remedial procedures called for by section 236 to correct an otherwise proper tax levy, the defendants’ objection to the 1979 levy for the juvenile detention home lease payments should have been overruled. See Ciacco v. City of Elgin (1980), 85 Ill. App. 3d 507, 512-13, 407 N.E.2d 108, 112.

The last remaining issue on appeal concerns the validity of the extension of the sum of $600,000 in 1979, purportedly to correct an error in the 1977 taxes levied to pay the annual rents due under leases with the Public Building Commission for the county courthouse and jail. The combined annual rental due under those leases was $1,830,000. Pursuant to section 18 of the Public Building Commission Act, the county clerk had been authorized to extend the taxes annually in an amount necessary to pay the annual rent payable under such leases as and when it became due and payable. However, in its tax levy for the year 1977, the county made an appropriation in the amount of $1,230,000 for that purpose. Correspondence contained in the record on appeal indicates that the county intended to obtain the remaining funds needed to pay that year’s rent from other sources. Therefore, the county clerk extended taxes to cover only the $1,230,000 appropriation. Then, in 1979, the county clerk extended an additional $600,000, noting only on his worksheet that the amount was to cover a deficit in the extension of 1977 taxes to pay the annual rent payable under the leases covering the county courthouse and jail.

Plaintiff maintains that this extension was proper by virtue of section 222 of the Revenue Act of 1939 (Ill. Rev. Stat. 1983, ch. 120, par. 703), which provides:

“If the tax or assessment on property liable to taxation is prevented from being collected for any year or years, by reason of any omission, erroneous proceeding or other cause, the amount of such tax or assessment which such property should have paid may be added to the tax on such property for any subsequent year, in separate columns designating the year or years.”

We disagree -with plaintiff. Section 222 applies only to situations in which taxes have been properly assessed and levied, but for some reason were not collected. (Hamer v. Kirk (1978), 57 Ill. App. 3d 335, 341, 373 N.E.2d 64, 68.) We conclude that the language of section 222 may not be interpreted to permit the extension of additional taxes in subsequent years to cover an error in the original levy without an additional levy having been made. The county attempted to do this in the case at bar. Moreover, were we to assume the applicability of section 222, the county failed to comply with the requirements of that section which requires that a separate designation be made of the amount of the additional tax and the year for which it was levied. In the absence of a supplemental resolution authorizing the additional levy, the failure to segregate is fatal to the tax. People ex rel. Siekmann v. Pennsylvania R.R. Co. (1944), 385 Ill. 350, 361, 52 N.E.2d 796, 800-01.

It is our opinion, therefore, that the judgment of the circuit court sustaining defendants’ objection to the taxes extended in 1979 for the payment of the annual rent payable under the juvenile detention home lease and ordering the refund thereof should be reversed. The remainder of the circuit court’s judgment is affirmed.

Affirmed in part; reversed in part.

WELCH, P.J., and JONES, J., concur.


author: JUSTICE JONES

text:
    SOCCER FOR FUN, INC., Plaintiff-Appellant, v. JOHN ALLAN MEEHAN, Defendant-Appellee.
    Fifth District
    No. 5—83—0662
    Opinion filed November 27, 1984.
    Edward C. Fitzhenry, Jr., of Lueders, Robertson & Konzen, of Granite City, for appellant.
    Robert W. Cadagin, of Cadagin, Cain & Tognarelli, of Collinsville, for appellee.
   JUSTICE JONES

delivered the opinion of the court:

This appeal presents the issue of whether the submission language in an employment contract between the plaintiff and the defendant herein required the arbitrator to make written findings of law and fact in support of the award.

An arbitrator awarded John Allan Meehan, the defendant, $5,200, to be paid by the plaintiff, Soccer For Fun, Inc., in full settlement of all claims submitted to arbitration. In making the award, the arbitrator expressed no findings of fact or law in writing. The plaintiff subsequently brought this suit to have the award vacated and a rehearing ordered on the grounds that the arbitrator had exceeded his power in making the award when he failed to make findings of law and fact as allegedly required by the employment contract. The pertinent paragraph in the employment contract provides as follows:

“Any controversy or claim arising out of or relating to this contract shall be settled by arbitration before one arbitrtaor [sic] in accordance with the rules then obtaining in every other respect of the American Arbitration Association in the City of Granite City, Illinois. The arbitrtaor [sic] shall be chosen by lot, each party submitting the names of three arbitrttors [sic]. The awrad [sic] of the arbitrator shall be rendered upon testimony and other evidence taken according to the rules, and shall be conclusive and binding upon the parties, and judgment thereon may thereafter be entered in any court having jurisdiction. The award shall be in writing and supported by the findings of the arbitrtor [sic] as to law and facts.” (Emphasis added.)

In rendering judgment in favor of the defendant the trial court, upon the defendant’s motion to dismiss, found:

“The Court having reviewed the case law submitted and the Employment contract finds that the contract did not specify that the award[,] which had to be in writing, should also contain findings as to law and facts. The only requirement was that the arbitrator’s award be supported by the findings. As the cases show, it is well settled that absent a requirement in the arbitration agreement, the arbitrator need only to announce his result.”

This appeal followed.

The trial court correctly stated the well-established rule that, absent a requirement in the arbitration agreement or submission for written findings, the arbitrator need only announce his result (Wilcox Co. v. Bouramas (1979), 73 Ill. App. 3d 1046, 392 N.E.2d 198). However, what the law does not require, the parties by their agreement may (Meharry v. Midwestern Gas Transmission Co. (1981), 103 Ill. App. 3d 144, 430 N.E.2d 1138), and thus, may require the arbitrator to make written findings of fact or law. In support of its contention that the parties have required the arbitrator to do so in the case at bar, the plaintiff argues that “in order for the submission language contained in the Employment contract to be given its most reasonable and practical effect, the findings as to the law and the facts are required to be in written form.” We must disagree. Although the language in question calls for the award to be in writing, it does not require that findings of fact or law be expressed, whether in writing or orally. The language requires only that any such findings of fact or law as are expressed support the award. The plaintiff advances no claim that it suffered any prejudice as a result of the arbitrator’s failure to provide written findings of law or fact. If a transcript of the arbitration hearing was made, it has not been made a part of the record on appeal. The plaintiff makes no suggestion that the record does not support the award or that the arbitrator made oral findings of fact or law on the record that do not support the award.

The plaintiff’s argument that the contract required written findings of fact or law is unavailing. Our disposition of this issue renders it unnecessary for us to consider the other issues presented for review concerning the trial court’s failure to vacate the award and order rehearing before the same or a different arbitrator.

Affirmed.

WELCH, P.J., and KASSERMAN, J., concur.


text:
    THE DEPARTMENT OF TRANSPORTATION, Petitioner-Appellee, v. J. W. GRAHAM, Defendant-Appellant.
    Fifth District
    No. 5—84—0127
    Opinion filed January 29, 1985.
    Robert M. Crain, of Crain, Cooksey, Veltman & Pursell, Ltd., of Centraba, for appellant.

      Neil F. Hartigan, Attorney General, of Springfield (Roy E. Frazier, Jr., Assistant Attorney General, of Springfield, and Paul D. Giamanco, Special Assistant Attorney General, of Mt. Vernon, of counsel), for appellee.
   JUSTICE WELCH

delivered the opinion of the court:

This is an eminent domain proceeding, filed September 5, 1980, by petitioner Illinois Department of Transportation (hereinafter the Department) in the circuit court of Effingham County. Named defendants were the Petty Co., Inc., the Effingham County Committee on Aging, the First National Bank of Effingham, the American Oil Co., and J. W. Graham, only the latter of whom was involved in the trial and this appeal. After a jury trial, Graham’s compensation was fixed at $51,800. Graham filed a written motion for a new trial. From the denial of said motion, Graham appeals. There is no cross-appeal.

The land in question is situated within the city of Effingham and was acquired by the Department for the widening and improvement of U.S. Route 40. As the case was submitted to the jury, Graham was entitled to be compensated for three distinct elements of damage: (1) for the land taken; (2) for damages to the untaken remainder of Graham’s property; and (3) for the highway construction contractor’s two-year use of an easement across the remainder of Graham’s property. There was considerable dispute at trial as to whether the largest tractor-semitrailer rigs could be loaded and unloaded at the buildings on the remaining premises; however, it appears that access to the building was at least made substantially more difficult by the taking.

Four witnesses testified regarding their opinions as to the compensation to which Graham was entitled. Graham testified that in his opinion he was entitled to $50,000 for the land taken, $74,000 for damages to the remainder, and $6,000 for the contractor’s temporary easement, for a total of $130,000. Edward Waddell, a real estate appraiser, testified for Graham that appropriate compensation for those three elements of damage would be $32,000, $108,000, and $5,000 respectively, for a total of $145,000. Mike Mitchell, for the Department, set compensation at $38,285, $6,915, and $1,000, for a total of $46,200, and J. Lloyd Brown, also for the Department, set compensation at $30,400, $16,600, and $1,400, for a total of $48,400. The jury, after 45 minutes of deliberation, set compensation as follows: $34,000 for the land taken, $16,600 for damages to the remainder, and $1,200 for the temporary easement (total $51,800).

In his written motion for a new trial, Graham argued that the jury verdict was so inadequate that the jury must have misunderstood the applicable law. Graham further alleged therein that the verdict was arrived at by an “antecedent agreement of the jurors to be bound by the use of an overt quotient mechanism,” said verdict therefore being void.

The supporting affidavit of Graham was in pertinent part as follows: Graham had personally interviewed jurors Kalisz, Repking, Gillespie, and Miller. Kalisz had stated that upon retiring to the jury room to consider their verdict, the jurors had entered into an “overt oral agreement” among themselves that they would take the following “mechanical steps to arrive at a verdict”: Each juror was to write down his own estimate of “separate high and low values” of the entire property owned by Graham, the value of the land taken, and the damages to the remainder; the jurors’ “high” values of said amounts were to be added together, and the “low” values of said amounts separately added together, to yield average estimates of “their respective high and low values” of the amounts in issue; those resulting averages were to be compared with the respective averages of the witnesses, and the jury was to render its verdict for the party whose averages were closest to the jury’s averages; the jury then followed this procedure and decided that the averages of the Department’s witnesses were closest to the jury’s own averages and rendered its verdict according to the agreement. Thereafter, Graham submitted a proposed affidavit to Kalisz, which proposed affidavit Kalisz told Graham correctly described what the jury had done to reach a verdict; however, Kalisz would not sign the proposed affidavit. Graham then showed the proposed affidavit which Kalisz would not sign to jurors Repking and Gillespie, each of whom stated that said proposed affidavit correctly described how the jury had arrived at its verdict; however, neither would sign the proposed affidavit. Graham conferred with juror Miller, “who advised affiant that in the jury room he had taken paper and put down highs and lows and tried to arrive at a compromise.”

Appended to Graham’s affidavit as an exhibit was the proposed affidavit referred to in Graham’s affidavit as having been submitted to jurors Kalisz, Repking and Gillespie. Said proposed affidavit’s description of how the jury had reached its verdict was essentially verbatim of the description in Graham’s affidavit.

Also submitted in support of Graham’s motion for a new trial was the affidavit of juror David Pals. After setting forth that Pals had been a juror in the trial of the case at bar, the text of the affidavit stated in its entirety

“that after the case was submitted to the jury, the jury agreed unanimously on the following procedure in order for it to arrive at a verdict, to-wit:
The jury, after thorough consideration of all the testimony and evidence presented at the trial, discussed how much the value of the property should be. After a thorough discussion of the evidence, it was found that the figure should be around the $50,000.00 figure. In order to arrive at a reasonable compromise, each juror wrote his estimate of this value on a piece of paper and an average was taken. This average was not the entire method of fixing value but only an aid in establishing a compromise. After the compromise figure was arrived at, the jury was wholeheartedly in agreement.”

After a hearing, the trial court denied Graham’s motion for a new trial in a handwritten order in which the court found, inter alia, that Graham’s affidavit was hearsay and should not be considered, that juror Pals’ affidavit supported the verdict and did not describe a quotient verdict, that comparison of the evidence and the verdict showed that the verdict was not a quotient verdict, and that the verdict was within the range of opinion testimony rendered. Graham’s written motion that the jury be examined individually in camera to determine whether a quotient verdict had been rendered was denied. This appeal followed.

Graham argues on appeal that the affidavits of himself and juror Pals show a quotient verdict and that a new trial is therefore required. Graham also argues that the trial court erred in refusing to examine the jurors regarding the allegations in his motion for a new trial. In so arguing, Graham admits that he has made no showing that the portion of the verdict relating to the temporary easement was arrived at by quotient verdict.

In Illinois Central R.R. Co. v. Able (1871), 59 Ill. 131, it was shown by affidavit of the officer in charge of the jury that after agreeing to find for the plaintiff, the jurors had differed widely as to the amount of damages. The jurors then agreed that each should write down the amount of damages to which he thought the plaintiff entitled; said amounts would be added together and divided by the number of jurors, and the result should be the verdict. This was done. Our supreme court stated the rule that while jurors may resort to a process of this sort as a mere experiment, and for the purpose of ascertaining how nearly the result may suit the views of the different jurors, yet a preliminary agreement that such a result shall be the verdict will vitiate a verdict found under and by virtue of such an agreement. Accordingly, the court reversed the cause and remanded, despite acknowledging that a juror swore that there was considerable

consultation after the quotient was arrived at, and that each juror agreed upon the result thus reached as his verdict. Accord, Kelley v. Call (1944), 324 Ill. App. 143, 147, 57 N.E.2d 501, 502-03 (noting that such a verdict is void).

The Department argues that Graham’s affidavit is hearsay which the court properly refused to consider. It has been held that an affidavit setting up that the verdict of the jury was the result of chance cannot be upon information and belief of the affiant. (Phillips v. Town of Scales Mound (1902), 195 Ill. 353, 361, 63 N.E.2d 180, 184.) However, in People v. Holmes (1978), 69 Ill. 2d 507, 372 N.E.2d 656, our supreme court ordered a new trial based on the affidavit of defense counsel setting forth what he had been told by jurors regarding their independent investigation of certain facts. (See also Illinois Central R.R. Co. v. Able (1871), 59 Ill. 131.) We conclude that it is entirely consistent with People v. Holmes (1978), 69 Ill. 2d 507, 372 N.E.2d 656, that the trial court and this court consider Graham’s affidavit in the instant case.

The Department argues that the affidavits of Graham and juror Pals constitute an improper attempt to impeach the verdict of the jury. Proof by a juror’s testimony or affidavit as to the motive, method or process by which the jury reached its verdict is inadmissible. Such proof is, however, competent to show conditions or events brought to the attention of the jury without any attempt to show the effect thereof on the jurors’ deliberations or mental processes. (People v. Holmes (1978), 69 Ill. 2d 507, 372 N.E.2d 656; Heaver v. Ward (1979), 68 Ill. App. 3d 236, 240, 386 N.E.2d 134, 137-38.) As both affidavits in question describe events occurring within the jury room, both affidavits are admissible to show such events, and juror testimony in that regard would be admissible as well.

The Department argues that Graham has failed to show that the jury agreed in advance to be bound by the average of the figures written down by each juror. Such an advance agreement must be shown, to establish that a void quotient verdict was rendered. (See German v. Illinois Power Co. (1983), 115 Ill. App. 3d 977, 986-87, 451 N.E.2d 903, 909-10; Groves & Sand Ridge R.R. Co. v. Herman (1903), 206 Ill. 34, 36, 69 N.E. 36, 37.) The trial court agreed with the Department in this regard. However, in so doing, the trial court had refused to consider Graham’s affidavit and had declined to consider the testimony of the jurors. Graham’s affidavit unequivocally stated the jurors’ agreement to take certain “mechanical steps” to reach a verdict. We know not what the jurors would have testified to. Pals’ affidavit may be construed as indicating that there was no antecedent agreement among the jurors, though it also suggests a contrary construction.

Thus, while Pals’ affidavit supports the trial court’s denial of Graham’s motion for a new trial, we cannot conclude that there was a thorough and meaningful inquiry on the matter at hand, the court having refused to consider competent evidence on point. (See People v. Witte (1983), 115 Ill. App. 3d 20, 30, 449 N.E.2d 966, 974.) However, we cannot order a new trial unconditionally; as we have noted, Pals’ affidavit is subject to divergent interpretation, and the testimony of the jurors may or may not support Graham’s position. Accordingly, we adhere to the principle that any doubt should be resolved in favor of granting a post-trial evidentiary hearing. People v. Witte (1983), 115 Ill. App. 3d 20, 449 N.E.2d 966; cf. People v. Holmes (1978), 69 Ill. 2d 507, 372 N.E.2d 656 (holding that, under the circumstances, remand for an evidentiary hearing was unlikely to result in much more proof as to the matters alleged).

We conclude that the instant judgment must be vacated and the cause remanded for an evidentiary hearing as to the matters alleged in Graham’s motion for a new trial. Should Graham prove his allegation that an impermissible quotient verdict was rendered, Graham is entitled to a new trial. Should Graham fail in such proof, the trial court is instructed to reinstate the judgment. See People v. Witte (1983), 115 Ill. App. 3d 20, 449 N.E.2d 966.

The judgment of the circuit court of Effingham County is vacated, and this cause is remanded for further proceedings consistent with the views expressed herein.

Judgment vacated; cause remanded.

JONES, P.J., and HARRISON, J., concur.