author: JUSTICE WEBBER

text:
    ALLEN & KORKOWSKI & ASSOCIATES, Plaintiff-Appellee, v. BENTLEY B. PETTIT, JR., Defendant.—(LUELLA R. PETTIT, Defendant-Appellant.)
    Fourth District
    No. 4 — 82—0011
    Opinion filed August 9, 1982.

      Gary R. Thompson, of Thomson, Weintraub & Thompson, of Bloomington, for appellant.
    Allen & Korkowski & Associates, of Rantoul, for appellee.
   JUSTICE WEBBER

delivered the opinion of the court:

This proceeding represents the fourth appeal in the ongoing litigation over the marriage dissolution and property distribution of the defendants. It concerns a mortgage given by defendant Bentley Pettit to his attorney, Richard B. Opsahl, a member of the plaintiff law firm, in payment of his fees for representing Pettit in the dissolution matter.

The history of the legal marching and countermarching is detailed in prior opinions (Pettit v. Pettit (1978), 60 Ill. App. 3d 375, 376 N.E.2d 782; Pettit v. Pettit (1980), 85 Ill. App. 3d 280, 406 N.E.2d 899) and need not be reiterated here. In addition to the two foregoing cases, a third appeal was filed in 1981, following the remand in the 1980 appeal, but it was dismissed for failure to file a docketing statement.

The chronology of the 1978 appeal is material to an understanding of the issues raised in the instant case. The 1978 opinion was filed May 26, 1978, and this court’s mandate reversing and remanding was issued June 28, 1978. Among other reasons for such reversal and remand was the failure of Luella Pettit to plead special equities in the jointly held real estate of the parties. However, in the course of the opinion this court said, “Our decision on this question in no way restricts the trial court’s power on remand to give further consideration to the question of whether it should permit amendment of the pleadings.” (60 Ill. App. 3d 375, 380, 376 N.E.2d 782, 786.) Such amendment was apparently accomplished since in the 1980 appeal this court held that special equities had been established, but again reversed and remanded for clarification of the maintenance award.

Between the date of the filing of the 1978 opinion and the issuance of the mandate, specifically on June 6, 1978, Bentley Pettit executed his promissory note in favor of the plaintiff in the instant case and secured it with a mortgage on certain real estate which the trial court had awarded to Luella Pettit in that proceeding.

In March 1981 plaintiff filed a suit for declaratory judgment in the circuit court of Champaign County (the dissolution proceedings were conducted in Ford County) and sought a declaration that the mortgage was a superior lien to any claim by either of the Pettits. The circuit court so held and in its judgment order specifically adjudicated that the mortgage was prior and superior to any interest of Luella Pettit, who appeals that judgment. Bentley Pettit was served with summons but took no part in the litigation.

The resolution of the case depends upon the procedural steps taken in the trial court and upon the application of the doctrine of lis pendens.

Plaintiff’s complaint was verified; the first responsive pleading was a motion to dismiss which was later withdrawn and an answer filed on behalf of Luella Pettit. The answer was unverified and set up lis pendens as an affirmative defense; it also contained within the body of the document an allegation of equitable ownership in Luella Pettit. Plaintiff’s response to the answer consisted of two motions. One purported to sound under section 48 of the Civil Practice Act and the other under section 45 of the Act. (Ill. Rev. Stat. 1979, ch. 110, pars. 48, 45, now Code of Civil Procedure, Ill. Rev. Stat. 1981, ch. 110, pars. 2 — 619, 2 — 615.) The trial court allowed both motions.

The section 48 motion was less than precise in that it did not specify which of the various subsections of paragraph (1) was being utilized. It alleged in substance that an owner of property is not prohibited from conveying it by virtue of a pending action provided no fraud is present. It was supported by an affidavit from Bentley Pet-tit’s attorney that the note was given for fees and costs incurred in the dissolution litigation and that Bentley had no interest in the proceeds of the note and mortgage. We can only assume that the motion sounded under subsection (i) of paragraph (1) of section 48, which provides for “other affirmative matter avoiding the legal effect of or defeating the claim or demand.” Ill. Rev. Stat. 1979, ch. 110, par. 48(1)®.

It is our opinion that the section 48 motion was improper and further that the trial court was in error in allowing it. In essence it questions the legal sufficiency of the defense of lis pendens; the fact that the note and mortgage were given for value received was not controverted; and the lis pendens allegation appears on the face of the answer. In such a case, section 45 is the proper motion. In the Historical and Practice Notes to section 48 it is stated:

“Although defects that appear on the face of the pleading attacked may, according to the letter of the section, be reached by motion under this section, [citation], the section is not actually designed for use for that purpose, except where the defect from the face of the pleading is coupled in the motion with a ground of dismissal based on matter that does not appear of record. In other words, if the only ground of a motion is a defect that appears on the face of the pleading attacked the appropriate method of reaching that defect is by motion under section 45.” Ill. Ann. Stat., ch. 110, par. 48, Historical and Practice Notes, at 354 (Smith-Hurd 1968).

In addition to the impropriety of the use of section 48, the trial court’s ruling on the legal question asserted was in error, and it appears that this error carried through all of the subsequent proceedings. The error was a misapprehension of the law concerning lis pen-dens, as will be elaborated later.

The section 45 motion raised essentially the same ground as the section 48 motion, but added to it a failure to verify the answer as required by section 35 of the Civil Practice Act. (Ill. Rev. Stat. 1979, ch. 110, par. 35, now Code of Civil Procedure, Ill. Rev. Stat. 1981, ch. 110, par. 2 — 605.) The court’s ruling, made by docket entry, states: “Plaintiff’s section 48 motion allowed with respect to Defendant’s answer. The same is stricken. Defendant granted leave to file amended answer within fourteen days of this date.” No fuller explanation of the ruling is contained in the record. It therefore follows that the trial court must have considered the matter of lis pendens to have been finally adjudicated under the section 48 motion; under those circumstances leave to plead over could have arisen only from the section 45 motion on the sole basis of failure to verify. This is borne out by the subsequent proceedings.

In due course defendant filed an amended answer, verified, and without the affirmative matter contained in the original answer. The amended answer did contain within its body the same allegation as was in the original answer, i.e., equitable ownership in Luella Pettit. Plaintiff moved to strike this portion of the amended answer on the basis that the court had already ruled in favor of the plaintiff on the matter. The trial court allowed that motion.

When the case came on for trial, the proof was in large part pro forma. The only witness was Richard Opsahl, a member of the plaintiff law firm and attorney for Bentley Pettit. He testified as to the services performed and as to the circumstances surrounding the execution of the note and mortgage. Defendant attempted to cross-examine him concerning his knowledge of the dispute between Luella and Bentley Pettit over the property covered by the mortgage. Objection was sustained on the grounds of relevancy and defendant did not pursue the matter further. As has been indicated, judgment was rendered in favor of the plaintiff and against the defendant Luella Pettit.

Two preliminary matters require some brief discussion. It is argued that the failure of defendant to raise the lis pendens defense in her amended answer constituted a waiver of the point. We do not agree. Upon the allowance of the motion, even though it was erroneous, the law of the case was established, and it would be bootless to go through a process of reiteration with the same rulings as before. This becomes even more apparent when one considers the later motion striking the portion of the amended answer concerning equitable ownership. Section 48 itself makes provision for this situation: “The raising of any of the foregoing matters by motion under this Section does not preclude the raising of them subsequently by answer unless the court has disposed of the motion on its merits; ***.” Ill Rev. Stat. 1979, ch. 110, par. 48(4).

It must be remembered what the exact posture of the pleadings was in this case: the section 48 dismissal was only partial, i.e., of the affirmative defense; the section 45 ruling allowed the defendant to plead over; hence there was no final order, and the effect of the court’s ruling on the section 48 motion was only to establish the law of the case on one point. Subparagraph (5) of Section 48 (Ill. Rev. Stat. 1979, ch. 110, par. 48(5)) provides that pleading over after denial of the motion is not a waiver of any error in that decision. It follows that the allowance of a partial dismissal only is in the same posture; otherwise, the statute would produce an order not subject to review. The ruling on the section 48 motion is properly before us.

The second point is the absence of any offer of proof when objection to a line of questioning of Mr. Opsahl was sustained. Ordinarily an offer of proof is required so that the trial judge, opposing counsel, and the reviewing court would know what evidence was sought to be produced, but it is not necessary when the nature of that evidence is apparent. (Lindley v. St. Mary’s Hospital (1980), 85 Ill. App. 3d 559, 406 N.E.2d 952.) There can be no doubt as to what the evidence would have been in the case at bar. The offer was unnecessary.

We turn next to a consideration of the trial court’s ruling on the section 48 motion. The parties have argued this in the context of Us pendens. The supreme court laid down an exhaustive interpretation of the doctrine in Norris v. Ile (1894), 152 Ill. 190, 199-200, 38 N.E. 762, 764, as follows:

“Chancelor Kent has said, that lis pendens is no more than an adoption of the rule in a real action at common law, where, if the defendant aliens after the pendency of the writ, the judgment in the real action will overreach such alienation. (Murray v. Ballou, 1 Johns. Ch. 566). It was one of the ordinances of Lord Bacon, that ’no decree bindeth any that come in bona fide by conveyance from the defendant before the bill exhibited, and is made no party either by bill or order; but where he comes in pendente lite, and while the suit is in full prosecution, and without any color or allowance or privity of the court, there the decree bindeth.’ (Idem.) Whether the object of lis pendens be constructive notice, or to hold the subject of the suit, or res, within the power of the court so as to enable the court to give effect to its judgment or decree, the decision of the court will be binding not only on the litigant parties, but also on those who derive title under them by alienations made pending the suit. (2 Pom. Eq. Jur. sec. 632). The doctrine of lis pendens is founded upon public convenience and necessity. (Durand v. Lord, 115 Ill. 610). The lis pendens begins from the service of the summons or subpoena after the filing of the bill. (Grant v. Bennett, 96 Ill. 513). A purchaser from the defendant while the suit is pending acquires his interest subject to such decree as may be rendered on the hearing. If this were not the rule, parties might, by transferring their interests during the pendency of the suit, defeat its whole purpose, and make the litigation endless. A purchaser pendente lite from a mortgagor is, to all intents and purposes, a party to the decree of foreclosure, because the same proceedings can be had against him, which can be taken against the mortgagor. He, who purchases property during the pendency of the suit, is as conclusively bound by the result of the litigation, as if he had been a party thereto from the outset. [Citations.]”

It is thus apparent that the principle operates in rem; persons not parties to the litigation and not even subject to the jurisdiction of the court in the case are bound. The practical effect is to place a cloud upon the title until the litigation is resolved. Most of the cases dealing with the principle turn on the question of notice. For example, in Davidson v. Dingeldine (1920), 295 Ill. 367, 129 N.E. 79, an attorney was the vendor in a contract for deed and also represented the husband in a divorce proceeding; he caused all the payments theretofore made on the contract to be credited to his fee; as a result, the contract was in default, and he then conveyed his interest to his half-sister. The divorce decree awarded the husband’s interest in the property to the wife. The attorney’s half-sister then brought an ejectment action against the divorced wife and claimed no knowledge of the divorce decree. The supreme court affirmed a finding in favor of the wife, holding that the suit was notice to the world that anyone taking the property pendente lite took subject to the equities of the parties to the litigation.

No case has been called to our attention, and we doubt that any such could be found, holding that one who has actual notice of the pendency of suit is in a better position than one who is bound by the constructive notice generated by that pendency. In the instant case nothing could be clearer than that the plaintiff had actual notice; a member of the plaintiff firm was representing Bentley Pettit, one of the parties litigant; it is axiomatic that the attorney representing a party litigant has a better notion of the pendency and progress of the suit than the client.

Plaintiff argues that our 1978 reversal eliminated any claim by Luella Pettit to the property and that by taking the mortgage in the interval between the remand and retrial plaintiff took free and clear of any claim by her. The argument overlooks the fact that the special equities need not be ultimately established; it is sufficient that they be asserted. It is the existence of the suit itself, not the probabilities of success, which invokes the principle of lis pendens. A similar claim was made in Norris, and the supreme court disposed of the contention as follows:

“The description of the property may be such that, by reference and upon inquiry, it may be ascertained. It must be so pointed out in the proceedings, as to warn the public that they intermeddle at their peril; and any one reading the bill must be able to learn thereby what property is intended to be made the subject of litigation. [Citations.]” 152 Ill. 190, 202, 38 N.E. 762, 765.

Our 1978 opinion in no wise terminated any claim to special equities; it only invited the proper pleading by which to establish what had been inaptly asserted.

Plaintiff also reavows what was alleged in its section 48 motion, i.e., that a spouse has the right to alienate his property without the consent of the other so long as the transfer is not colorable or illusory. As we have heretofore indicated, the argument is wide of the mark and ignores the principle of Us pendens. The question is not whether he may make an alienation, but what clouds exist upon it when made. The argument is without merit.

Plaintiff’s final argument concerns section 405 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 405), which provides in part:

‘-‘Every condemnation proceeding, proceeding to sell real estate of decedent to pay debts, or other suit seeking equitable relief, affecting or involving real property shall, from the time of the filing in the office of the recorder of deeds in the county where the real estate is located of a notice signed by any party to the suit or his attorney of record or attorney in fact on his behalf, setting forth the title of the cause, the parties to it, the court where it was brought and a description of the real estate, be constructive notice to every person subsequently acquiring an interest in or a lien on the property affected thereby, and every such person and every person acquiring an interest or lien as aforesaid, not in possession of the property and whose interest or lien is not shown of record at the time of filing such notice, shall, for the purposes of this Act, be deemed a subsequent purchaser and shall be bound by the proceedings to the same extent and in the same manner as if he were a party therto.” (Emphasis added.) Ill Rev. Stat. 1979, ch. 110, par. 405.

Defendant concedes that no such notice was ever filed. In the circumstances of this case, we believe notice was not required. The statute represents an effort to ameliorate the harsh common law rule as explicated in Norris. Under the common law the suit was “notice to the world.” (Davidson v. Dingeldine (1920), 295 Ill. 367, 372, 129 N.E. 79.) In an earlier, simpler era, when the amount of litigation was not progressing exponentially, the rule was workable. Clerk’s docket books were slim, and “everybody knew” what was going on in court, especially in the smaller communities. Today it requires sophisticated electronic equipment for even a court itself to track the docket.

It is to be noted that the statute applies to “constructive notice” situations, that is, situations where actual notice is lacking. It therefore applies to those who are strangers to the litigation, obviously not the case at bar. Such was the situation in E & E Hauling, Inc. v. County of Du Page (1979), 77 Ill. App. 3d 1017, 396 N.E .2d 1260, and Admiral Builders Corp. v. Robert Hall Village (1981), 101 Ill. App. 3d 132, 427 N.E.2d 1032. In E & E Hauling there was an attempt to bind parties nonlitigant by a lis pendens notice. The court held that it was an attempt at an indirect injunction and voided it. In Admiral Builders the plaintiff sued the defendant’s predecessor in title and af-terwards sought to join the defendant on a separate cause of action. The court held that the defendant would not be bound by the previous suit because of the failure to file a lis pendens notice, but that the failure was no bar to the subsequent suit. Both courts emphasized the constructive notice nature of the statute. The cases are inapposite.

The trial court was in error in allowing the section 48 motion and the error carried through in its striking a portion of the amended answer and sustaining objection to cross-examination. Its ultimate conclusion was also erroneous as a result of the prior errors. Its judgment is therefore reversed.

Nothing could be accomplished by a remandment of this cause except to enter a contrary order. Therefore, pursuant to the power vested in this court under Supreme Court Rule 366(aX5) (91 III. 2d R. 366(aX5)) we enter judgment here for the defendant Luella Pettit.

Reversed.

GREEN, P. J., and MILLS, J., concur.


source: Caselaw Access Project

author: JUSTICE HOPF

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHNNIE BAILEY, Defendant-Appellant.—THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. VERDIE BAILEY, Defendant-Appellant.
    Second District
    Nos. 80 — 642, 80 — 643 cons.
    Opinion filed August 4, 1982.

      Mary Robinson and Marilyn Martin, both of State Appellate Defender’s Office, of Elgin, for appellants.
    Daniel D. Doyle, State’s Attorney, of Rockford (Phyllis J. Perko and Marshall Stevens, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE HOPF

delivered the opinion of the court:

Defendants, Johnnie Bailey and Verdie Bailey, appeal' from convictions of aggravated battery following a jury trial. Verdie Bailey was convicted of two counts of aggravated battery. Johnnie Bailey was convicted of one count of aggravated battery and one misdemeanor count for obstructing a police officer. On appeal they contend that the State failed to prove beyond a reasonable doubt that Verdie was guilty of committing batteries upon Rockford police officers Phillip Rote and Frederick Franck without legal justification; that the failure to instruct the jury regarding the law of self-defense and defense of another deprived both defendants of a fair trial; and that improper comments by the prosecutor during voir dire and closing argument denied defendants a fair trial.

This matter began on November 10, 1979, when Mrs. Verdie Bailey called the Rockford police regarding a family dispute between her son Fritz and his wife. Officer Frederick Franck testified that he was working alone when he received a call at around noon to go to 24 Preston Street. Upon arrival, he saw Fritz Bailey standing on the street about one block to the west of Preston. Fritz Bailey was not wearing a shirt, despite the cold weather, was jumping up and down and appeared very agitated or frustrated. Fritz told the officer that there was a problem on Pierpont Street a block away and the two proceeded in that direction. When they reached the corner of Preston and Pierpont they were joined by Officer Phillip Rote. Fritz pointed to a house across the street, said his wife was there, and that he wanted to talk to her. Officer Franck told Fritz to stay on the corner with Officer Rote while he went across the street to see what was going on. At that point, Franck did not see anyone else in the area or inside the house. Fritz was still acting in a very agitated manner. Franck testified that he told Fritz three times to stay at the comer and that each time Fritz tried to follow him. Franck then told Fritz he would arrest him for disorderly conduct if he followed him again. Franck again crossed the street; Fritz followed and Rote handcuffed him after telling him he was under arrest. Franck returned to assist Rote. Fritz cooperated and returned to the squad car but refused to get in. The officers each took one of Fritz’ arms and tried to push him into the car. They testified that they used no weapons.

Suddenly, Fritz’ sisters, Rosie Bailey and defendant Johnnie Bailey, arrived. Franck testified that he received a “poke” or “punch” on the back of his head. When he turned around Rosie Bailey punched him between the eyes, breaking his glasses. Rote heard both girls exclaiming they did not want their brother to go to jail. He testified that Johnnie punched him, breaking his nonprescription sunglasses. Franck testified that he grabbed Rosie and tried to subdue her and they continued to scuffle. He finally sat on top of her on the ground. Rote testified that he grabbed Johnnie Bailey’s right hand and restrained her. He testified that he did not remember striking her. Rote testified that before Franck subdued Rosie by sitting on her, she broke away from Franck and hit Rote on the head with a three-foot piece of lathing or a “stick.” Rote took the stick from her and put it in the car. Franck identified the stick at trial.

During the struggle the Baileys’ mother, defendant Verdie Bailey, joined the group. Franck testified that she grabbed his hair and hit him with her fists. Rote testified that he did not hear Verdie ask him not to hit Rosie, but that she was screaming that she did not want her daughters to go to jail. She clawed Rote and Franck with her fingernails, and Rote took Verdie in the the crook of his left arm and hit her in the temple with his fist. He testified that after he hit Verdie she went back to Officer Franck. Rote testified that Verdie went into a faint when assisting officers arrived. The fight ended when Officer Rote pulled his gun. The officers testified that after the fight they did not see any injuries on either defendant. Officer Rote also testified he saw no injuries on Rosie or Fritz.

Meanwhile a crowd had gathered. Two neighbors testified for defendants at trial. Deborah Williams, 18, testified that she saw the larger of the two officers (Officer Rote) hit Fritz Bailey with a nightstick trying to put him into the squad car. Rosie ran over to the officer and hollered something. The police grabbed her and Johnnie and began to beat them. Johnnie pulled the big officer off her younger sister. Williams testified that Officer Rote beat and kicked Rosie about ten times. When Verdie came up, all of a sudden an officer had her on the ground. After the fight ended the witness saw that Verdie was bleeding around the eye and maybe her nose. One of the officers was bleeding on the side of the face. The witness did not see Johnnie at the end of the fight. On cross-examination she testified that she did not see how the fight started or who struck the first blow.

Mary Williams, 17, testified that an officer beat Fritz Bailey with a blackjack or stick shaped like a bat. Rosie Bailey ran up to the officers. The witness did not know whether Rosie hit an officer when she ran up to them. One officer grabbed her and started beating her on the face, throwing her down, kicking her and pulling her hair. On cross-examination the witness testified that one officer held Rosie’s arms while the other officer administered the beating. Rosie was hitting back. When Verdie tried to pull Rosie away, she said, “Rosie, stop, you will get hurt.” Rosie said, “I haven’t did nothing to him, he did it to me.” One officer grabbed Verdie and held her while the other officer beat her. Rosie was on the ground with her shirt opened, hollering. The witness admitted on cross-examination that she did not see the beginning of the fight. She did not see Johnnie Bailey in the fight.

Rosie Bailey, 14, testified that her brother and his wife had a misunderstanding and their mother went to their grandmother’s house to phone the police. Rosie saw Fritz outside without a coat and went out with Johnnie to take him one. She testified that after Officer Rote handcuffed Fritz, he was “poking” him. When she asked Rote why he was poking her brother, Rote grabbed her and started twisting her arm. She testified that she then picked up a stick and they began to “battle their way.” Officer Franck popped her in the left side of the face and tore her shirt off. After she and Officer Rote had a tussle on the ground Verdie Bailey ran up and asked Rosie to stop. She saw Rote put Johnnie against the wall and hit her in the chest with his fists. Finally, Officer Franck sat on top of her until Rote drew his gun. Then she was handcuffed and put in the car. Rosie saw Verdie get popped in the face by Rote.

Defendant Johnnie Bailey, 17, testified that she and her sister saw the officer hitting and pushing her brother trying to put him into a squad car. They were not hitting Fritz with a nightstick. Rosie was angry with the officers. Rote called Rosie a “bitch” and when Rosie objected to the epithet, one of the officers grabbed Rosie and punched her in the face. After the scuffle started Johnnie began to walk away; Rote then grabbed Johnnie by the arm and she got scratched. She scratched Rote on the nose. She offered no other resistance. Verdie came up and said, “Johnnie, stop, before you get hurt.” Johnnie said, “I’m not doing anything.” Then Johnnie was handcuffed and placed in the squad car. Johnnie saw Verdie run over to Rosie and tell her to stop. Next she saw Verdie “laying out.” She saw the officers drag Verdie to a car. Johnnie testified she was not hit by anyone and that all she did was scratch an officer when he held her arm. She did not see Rosie strike an officer.

Verdie Bailey testified that on November 10, 1979, her son Fritz and his wife had a misunderstanding and Fritz was acting strange, as though he were intoxicated or on drugs. She went to her mother’s house and called the police. At one point Verdie saw officers handcuffing Fritz. Later Verdie looked out the window and saw two officers hitting her daughters “upside of the head.” Verdie ran out and said, “Johnnie, stop, you will get hurt, you will get in trouble.” Johnnie said, “I haven’t got him, he got me.” Franck was hitting Johnnie about her head and shoulders. Verdie saw Rosie and Rote scuffling. The officer hit Rosie in the head. Verdie saw him hit Rosie twice. Ver-die asked him to stop. Verdie did not see Rosie strike Rote or Franck. Verdie testified that Franck grabbed her right arm and twisted it. Rote grabbed her left arm and kicked her on the inner thigh. Rote then knocked her out. Verdie testified she did not touch either officer during the fight. After the fight she was flung into a squad car and taken to the station. Over defense counsel’s objection, Verdie testified that she was in another fight that same day at the police station. She testified that she was manhandled but that “there wasn’t any licks passed.” Verdie Bailey identified defendant’s exhibits one through four as photographs taken of her two days after the fight with Franck and Rote and the incident at the police station depicting the condition of her face and of her inner thigh.

Rochelle Dent testified for the defense that as she was driving on November 10, 1979, she saw a large crowd on the comer of Pierpont and Preston. When she approached, she saw two policemen over six feet tall, weighing over 200 pounds, beating a woman and what appeared to be a 10-year-old girl with clubs. "When Dent attempted to intervene, she was arrested and taken to the police station with the Baileys. Dent testified that at the police station Verdie Bailey had “dried blood streaming down her forehead.”

Johnnie Bailey was found not guilty of aggravated battery as to Franck, but guilty of aggravated battery as to Rote and guilty of obstructing Franck. Verdie Bailey was found guilty of aggravated battery upon both Franck and Rote. The defendants were each sentenced to one year’s probation with restitution to the officers for broken glasses and damaged clothing.

The jury had not been instructed on the issue of self-defense or defense of others; both Verdie and Johnnie Bailey cite the failure to do so as error on appeal. Verdie also argues that the State failed to prove that she committed battery on the officers without legal justification.

The State argues that neither Verdie nor Johnnie tendered an instruction on self-defense nor preserved the issue in their motions for a new trial and thus they may not raise this issue on appeal.

As a general rule, the failure to object at trial to an asserted error in jury instructions waives the issue on appeal. People v. Tannen-baum (1980), 82 Ill. 2d 177, 415 N.E.2d 1027.

It has been held that when the issue of self-defense has been raised the failure to tender the instruction does not waive the issue for appeal (People v. Pernell (1979), 72 Ill. App. 3d 664, 391 N.E.2d 85) unless the instructions which were given sufficiently apprise the jury of the State’s burden of proof. People v. Tiller (1978), 61 Ill. App. 3d 785, 378 N.E.2d 282.

In the instant case none of the instructions given apprised the jury that the State had a burden of proving that defendants’ actions were not justified. We do not agree that the failure to so instruct the jury was plain error, however, for we conclude that the evidence with regard to the conduct of both Verdie and Johnnie did not warrant any such instructions.

With respect to Verdie Bailey’s arguments we will discuss together the contentions that it was error not to instruct the jury regarding self-defense and that the State failed to prove beyond a reasonable doubt that she did not use justifiable force in defense of her daughters.

In Illinois, an individual may not use force to resist an arrest which he or she knows is being made by a peace officer, even if he or she believes that the arrest is unlawful and it is in fact unlawful. (Ill. Rev. Stat. 1979, ch. 38, par. 7 — 7.) This rule is qualified, however, in that it does not apply to a situation in which an officer uses excessive force. The use of excessive force invokes the right of self-defense. (Ill. Rev. Stat. 1979, ch. 38, par. 7 — 1.) This provision also applied to defense of another against excessive force in the effectuation of an arrest.

Self-defense or defense of another is an affirmative defense (Ill. Rev. Stat. 1979, ch. 38, par. 7 — 14), meaning that unless the State’s evidence raises the issue involving the alleged defense, the defendant, to raise the issue, must present some evidence thereon. (Ill. Rev. Stat. 1979, ch. 38, par. 3 — 2.) Even a slight amount of evidence has been held to be enough to raise the issue and the accused is entitled to the benefit of any defense “even though such defense is inconsistent with his own theory.” (People v. Robinson (1981), 92 Ill. App. 3d 972, 975, 416 N.E.2d 793.) Once the issue of self-defense is interposed by the introduction of some evidence, by either the State or the defense, the burden of proving guilt beyond a reasonable doubt as to that issue is upon the State. (People v. Woods (1980), 81 Ill. 2d 537, 410 N.E.2d 866.) This burden passes to the State whenever the issue of self-defense is “properly raised” by the evidence. People v. Pernell (1979), 72 Ill. App. 3d 664, 666, 391 N.E.2d 85.

It is recognized that a theory of self-defense or defense of another is properly raised even if the defendant’s own testimony is inconsistent -with that theory. (People v. Bratcher (1976), 63 Ill. 2d 534, 349 N.E.2d 31; People v. Rodriguez (1981), 96 Ill. App. 3d 431, 421 N.E.2d 323; People v. Kucala (1972), 7 Ill. App. 3d 1029, 288 N.E.2d 622.) Thus, where the State presents evidence that a defendant acted in self-defense but the defendant’s testimony denied committing the act, the issue is properly raised. (People v. Rorer (1976), 44 Ill. App. 3d 553, 558, 358 N.E.2d 681.) Further, where defense witnesses’ testimony indicated that defendant acted in self-defense, the defendant is entitled to have the jury consider the theory of self-defense even though the defendant himself denies taking any action. (People v. Rodriguez.) A defendant, however, cannot construct a theory of self-defense or defense of another by combining State’s evidence and defense evidence. People v. Robinson (1981), 92 Ill. App. 3d 972, 975, 416 N.E.2d 793.

In Robinson the defendant, a prison inmate, was convicted of aggravated battery upon a correctional officer. The State’s evidence revealed the defendant attacked the officer with a brass firehose nozzle. None of the State’s evidence indicated that the defendant feared for his safety. The defendant did testify that he feared for his life; however, he denied striking the officer with the nozzle. None of defendant’s occurrence witnesses claimed to have seen any physical contact between defendant and any officer. The reviewing court, although noting that only a slight amount of evidence is necessary to support the underlying theory of defense, stated nevertheless that “it cannot be said that anyone’s testimony showed that defendant struck [the officer] out of fear for his own safety. The most that can be said is that the officers’ testimony showed the striking, while defendant’s testimony showed that he was in fear.” (92 Ill. App. 3d 972, 975, 416 N.E.2d 793; see also People v. Dukes (1960), 19 Ill. 2d 532, 169 N.E.2d 84, cert, denied (1961), 365 U.S. 830, 5 L. Ed. 2d 707, 81 S. Ct. 716, holding that in absence of the State raising the issue of an affirmative defense, the defendant must present “some evidence” to raise the issue (Ill. Rev. Stat. 1979, ch. 38, par. 3 — 2(a)).) Defense evidence that defendant was in fear, but did not strike anyone, is not sufficient, and a defendant may not combine the State’s evidence of defendant’s act with defense testimony that defendant was in fear of his safety.

Verdie Bailey in the instant case is attempting to establish a theory of self-defense in the same manner as did the defendant in Robinson. She combines defense testimony establishing fear for her daughter’s safety with State’s evidence that she struck the officers in an attempt to raise the issue of defense of another.

The State presented evidence that Verdie struck both police officers. The only State’s evidence that would reveal Verdie’s state of mind, however, was that she screamed she did not want her daughters to go to jail. This is not indicative of a belief that the officers were using excessive force. The State thus did not raise the issue of defense of others against excessive force by the officers. For the defense Verdie and all other defense witnesses testified that the officers were beating her daughters; Verdie indicated that she was afraid her daughters would get hurt. Verdie denied, however, that she struck either officer. No defense witness testified to seeing Verdie strike a police officer. Such an attempt to construct an issue of self-defense was rejected by the court in Robinson and it is rejected by us here. Therefore, as the issue of defense of others was not properly raised, Verdie Bailey was not entitled to a jury instruction on the issue. Further, as the issue was not raised, it was not an element upon which the State had the burden to prove Verdie Bailey guilty beyond a reasonable doubt.

We now turn to defendant Johnnie Bailey’s contention that she was entitled to a jury instruction on self-defense.

Johnnie was convicted of aggravated battery upon Officer Rote.

As we have said, in the absence of the State raising the issue, a defendant must present some evidence that his use of force is justified. A person “ ‘must actually believe that the danger [of harm] exists [and] that his use of force is necessary to avert the danger ***.’” People v. Bratcher (1976), 63 Ill. 2d 534, 540, 349 N.E.2d 31, quoting the Committee Comments to Ill. Ann. Stat., ch. 38, par. 7 — 1, at 364 (Smith-Hurd 1972).

The State’s evidence, provided by the two officers, is that Johnnie and her sister started the battle and the officers simply acted in response to their attack. The officers’ testimonies do not raise the issue of self-defense.

Johnnie testified that she scratched Officer Rote once, on his nose, when she was scratched when he grabbed her arm. She testified that she did not offer any other resistance and had not been involved in the fracas until Officer Rote grabbed her arm. She did not indicate that she believed she was defending herself from excessive force. There is no evidence from any of the other defense witnesses tending to indicate that Johnnie acted in her self-defense.

Although “ ‘very slight evidence upon a given theory of a case will justify giving an instruction’ [citations],” we consider the evidence presented in this case insufficient to meet the minimal level. (People v. Bratcher (1976), 63 Ill. 2d 534, 540, 349 N.E.2d 31.) We conclude no error was committed in not instructing the jury on the theory of self-defense.

Both defendants finally contend that comments by the prosecutor during voir dire and in closing argument improperly suggested her personal belief in the guilt of defendants and regarding the veracity of the witnesses.

During voir dire the following exchange took place:

“MRS. HALLOCK [the prosecutor]: The burden of proof upon the State is what is called beyond a reasonable doubt and that doesn’t mean beyond any doubt. Do you understand that? JUROR GAZZARDO: Uh-huh. Yes.
MRS. HALLOCK: You understand that the State, myself, as a representative of the State, accepts that burden and that’s why we are under-going a jury trial.”

During closing argument the prosecutor made the following comments:

“I think in the normal case, you have the State’s version of the facts which of course we will argue and we think is accurate as to what happened and then you will have the defense with their version of the facts.”

The prosecutor turned to an evaluation of the credibility of individual witnesses. She stated that the officers “did not appear to be defensive to me at least.” The prosecutor also stated, “I don’t think the officers raised any reasonable doubt about what happened in your mind, certainly not in my mind.”

Turning to an evaluation of the defense witnesses, the prosecutor stated, “I don’t think there is a reasonable doubt, a reasonable doubt created in your mind; certainly not in mine by what the defense witnesses had to say.” The prosecutor also advised the jury that they would be instructed that a police officer can use the force he reasonably believes to be necessary to effectuate an arrest or to defend himself from injury during an arrest. She stated that she thought the law regarding the use of force by police was reasonable and “those are things that need to be said in the law.”

It has been consistently held that the failure to object to final argument is deemed a waiver by the defendant. People v. Harper (1981), 94 Ill. App. 3d 298, 302, 418 N.E.2d 894.

Defendant argues, however, that the remarks were of such prejudicial effect that they amounted to plain error and thus should not be considered waived. They argue in the alternative that the failure of defense counsel to object to the comments, and thus preserve the issue, amounted to ineffective assistance of counsel.

Improper remarks by a prosecutor constitute reversible error if they result in substantial prejudice to the accused. (People v. Baptist (1979), 76 Ill. 2d 19, 29, 389 N.E.2d 1200.) Each case must be decided upon its own facts. (People v. Baptist.) What must be considered is whether the verdict would have been different if the arguments had not been made. People v. Harper.

It is well recognized that the prosecutor may not express his own belief in defendant’s guilt. (People v. Monroe (1977), 66 Ill. 2d 317, 362 N.E.2d 295.) Defendant cites a number of cases wherein reversible error was found in the expression by the prosecutors of personal belief in the defendants’ guilt. (People v. Slaughter (1980), 84 Ill. App. 3d 88, 404 N.E.2d 1058; People v. Adkins (1973), 16 Ill. App. 3d 394, 306 N.E.2d 709; People v. Hopkins (1970), 124 Ill. App. 2d 415, 259 N.E.2d 577; People v. Fuerback (1966), 66 Ill. App. 2d 452, 214 N.E.2d 330.) We have reviewed these decisions, and conclude that the comments by the prosecutor here, that the State accepts the reasonable doubt burden, and that the witnesses’ comments do not raise doubts in her mind, are not so inflammatory as to constitute plain error. See People v. Harper (1981), 94 Ill. App. 3d 298, 418 N.E.2d 894.

With regard to the prosecutor’s comments on the veracity of the witnesses, we agree that they were clearly improper. A prosecutor may discuss the credibility of witnesses but may not interject his personal beliefs. People v. Martin (1975), 29 Ill. App. 3d 825, 331 N.E.2d 311.

We agree with the State that for the most part the prosecutor’s prefacing of her remarks about various witnesses’ veracity was simply an unfortunate pattern of speech. The specific comments, of what the State thought was the accurate version of the incident, and of the fact that the witnesses’ testimonies did not raise doubts in the prosecutor’s mind, cannot be attributed to simply careless phrasing, however. These additional comments in the closing arguments, although improper, were not, we think, of such a nature that they amounted to plain error. We have reviewed the prosecutor’s entire closing argument and find that it is a dispassionate, careful analysis of the evidence presented at trial. The prosecutor sought to convince the jury of defendant’s guilt by analysis, not by inflaming them. We conclude that the prosecutor’s argument did not substantially affect defendant’s rights so as to require circumvention of the waiver rule. See People v. Baynes (1981), 88 Ill. 2d 225, 231, 430 N.E.2d 1070; cf. People v. Slaughter (1980), 84 Ill. App. 3d 88, 404 N.E.2d 1058.

Defendants argue that counsel’s failure to object to the prosecutor’s improper remarks along with the failure to request instructions on justifiable use of force amounted to ineffective assistance of counsel, denying them a fair trial. As we discussed earlier, however, defendants were not entitled to instructions on justifiable use of force. Further, we are not convinced that had counsel objected to the prosecutor’s remarks the outcome of the trial would probably have been different. People v. Moore (1981), 102 Ill. App. 3d 651, 429 N.E.2d 1312; People v. Scott (1981), 94 Ill. App. 3d 159, 418 N.E.2d 805.

We affirm the judgment of the Winnebago County circuit court.

Affirmed.

SEIDENFELD, P. J., and NASH, J., concur.


author: PRESIDING JUSTICE GREEN

text:
    INTERSTATE STEEL COMPANY, Plaintiff-Appellant, v. RAMM MANUFACTURING CORPORATION, Defendant.-(MANCHESTER BANK OF ST. LOUIS et al., Claimants-Appellees.)-INTERSTATE STEEL COMPANY, Plaintiff, v. RAMM MANUFACTURING CORPORATION, Defendant.-(CITIZENS NATIONAL BANK OF PARIS, Claimant-Appellee; MANCHESTER BANK OF ST. LOUIS, a/k/a Commerce Manchester Bank, Claimant-Appellant.)
    Fourth District
    Nos. 17678,17689 cons.
    Opinion filed August 3, 1982.

      Stephen L. Corn and Robert G. Grierson, both of Craig & Craig, of Mat-toon, for appellant Interstate Steel Company.
    Mary M. Bonacorsi, of Thompson & Mitchell, of East St. Louis, for appellant Manchester Bank of St. Louis.
    Alfred R. Kreckman, Jr., of Massey, Anderson & Gibson, of Paris, for appellee Citizens National Bank of Paris.
    Mary M. Bonacorsi, of Thompson & Mitchell, of St. Louis, Missouri, James M. Grant, of Brainard, Bower & Kramer, of Charleston, and Alfred H. Kreckman, Jr., of Massey, Anderson & Gibson, of Paris, for appellees Manchester Bank of St. Louis and Citizens National Bank of Paris.
   PRESIDING JUSTICE GREEN

delivered the opinion of the court:

These consolidated appeals are taken by plaintiff, Interstate Steel Company, an Illinois corporation (Interstate), and claimant, Manchester Bank of St. Louis (Manchester), from orders of the circuit court of Edgar County, the final one of which was entered December 28, 1981. The case arises from proceedings ancillary to a judgment obtained by plaintiff against defendant, Ramm Manufacturing Corporation (Ramm), on September 15,1976, in the sum of $984,966.

. On April 20, 1979, execution was ordered to issue against certain sums held as the proceeds from the sale of various personal assets of Ramm by claimant, Citizens National Bank of Paris, Illinois (Citizens). On the same day Citizens filed a claim alleging it was entitled to the proceeds. Subsequently, Manchester also filed a claim. Various hearings were held trying the rights of the claimants to the property. The circuit court ultimately ruled that Citizens was entitled to $11,556.74 and Manchester to $20,795.30. Interstate was granted no recovery.

Most of the significant facts are not disputed. Ramm was a corporation engaged in the manufacture and sale of grain bins in Paris, Illinois. Some of the components of the bins were manufactured by Ramm using equipment located at its plant near Paris and other components and accessories were purchased by Ramm. The grain bin components and accessories were sold by Ramm as a disassembled package, to be assembled by others at the location selected by the customer.

On June 10, 1974, Ramm and Manchester entered into a security agreement granting Manchester a security interest in certain property. Subsequently, on September 11, 1974, Ramm entered into a security agreement with Citizens granting Citizens a security interest-.Both security interests were perfected within a few days of execution by the filing of a financing statement. By early 1976, Ramm had defaulted on the underlying obligations of both security interest, owing Manchester $649,289.21 and Citizens $717,000. Manchester and Citizens agreed that chattels held by Citizens as collateral be sold with the proceeds standing in lieu of the chattels. The trials of right of property concerned these proceeds.

Clearly, whatever security interest Manchester had perfected had first priority because it had filed its financing statement first. Citizens was entitled only to the security interest it had perfected in proceeds from the sale of items not covered by Manchester’s interest. Interstate, whose judgment lien was latest in perfection, was only entitled to proceeds from the sale of items not covered by either of the foregoing interests. The trial court awarded Manchester the proceeds from the sale of items of Ramm’s steel inventory and awarded the rest of the proceeds to Citizens.

Interstate maintains on appeal that the court erred in awarding to Citizens the proceeds from certain items of inventory and equipment because these items were not properly described in Citizens’ financing agreement with Ramm. Interstate also asserts error in the trial court’s determination Manchester was entitled to proceeds from the sale of some sheet steel. Manchester argues its claim to the proceeds of items of “merchandise” was perfected prior to Citizens’ claim thereto. Manchester also sets forth its entitlement to $3,507.34, which was obtained by the sale of products of Ramm's raw steel.

Citizens’ security agreement states in part:

“The undersigned, for value received, hereby mortgages to THE CITIZENS NATIONAL BANK OF PARIS, Paris, Illinois (hereinafter called the ‘bank’), and hereby grants to the Bank a security interest in, the following property and all accessories, parts and equipment now or hereafter affixed thereto or used in connection therewith (hereinafter collectively called the ‘Goods’).”

In the blank section following the above language was typed the following language:

“All merchandise, Furniture and Fixtures now or hereafter obtained and located at R. R. #6, Paris, Illinois 61944.”

Interstate contends that under the language of the above agreement, the only equipment covered are those items used in connection with and subservient to merchandise, furniture, and fixtures, and not items of equipment used generally in the production of merchandise. The basis for Interstate’s contention is that the word “equipment” is used in the same phrase with “accessories” and “parts” and is joined to those words with the word “and.” Interstate claims “equipment” must be given a meaning restrictd by the words preceding it. Interstate’s argument is similar to the rule of ejusdem generis which provides that often when general words follow particular words in a document, the general words are construed to include only things of the same kind as the particular words. (Bullman v. City of Chicago (1937), 367 Ill. 217, 10 N.E.2d 961.) However, the rule is not applicable when a contrary interest is evident. See Farley v. Marion Power Shovel Co. (1975), 60 Ill. 2d 432, 328 N.E.2d 318.

Here, all the equiipment, whose proceeds are in dispute, was used in the production of merchandise and, in that way, was connected with the merchandise. The equipment had no connection with the merchandise except for being used to produce it. It is hard to conceive what would have been intended by'the word “equipment” if its meaning was to be restricted to the type of objects that are similar to accessories or parts. We conclude that equipment used to produce the merchandise was sufficiently described in the security agreement (Ill. Rev. Stat. 1979, ch. 26, par. 9 — 110), and the trial court correctly so ruled.Accordingly, we need neither decide whether the equipment in question would, as a matter of law, be fixtures within the meaning of the agreement nor remand for a trial court finding on that question.

Interstate also contends Ramm’s inventory was not encompassed by the term “merchandise” in Citizens’ security agreement, claiming “merchandise” refers only to finished products held for resale and not parts sold as components of bins. However, according to the evidence, the items in dispute were to be sold as parts for unassembled bins to be put together by the purchaser and were in finished condition to be sold although not packaged.

Moreover, although “merchandise” is not defined under the Uniform Commercial Code (Ill. Rev. Stat. 1979, ch. 26, par. 1 — 101 et seq.) (Code), Citizens points out that it was defined in the Factors Lien Act (Ill. Rev. Stat. 1961, ch. 82, par. 103) as “materials, goods in process, and finished goods intended for sale, whether or not requiring further manufacturing or processing.” The Factors Lien Act was repealed by the Code in 1962, and this definition is included in the definition of inventory in the Code at section 9 — 109(4) (Ill. Rev.Stat. 1979, ch. 26, par. 9 — 109(4)). The comments to the section state:

“The definition of ‘inventory’ expands the scope of the definition of ‘merchandise’ found in the pre — Code Factor’s Lien Act by including goods held for lease or to be furnished Under contracts of service as well as goods held for sale.” (Ill. Ann. Stat., ch. 26, par. 9 — 109, Council Commentary, at 81 (Smith-Hurd 1974).)

The definition of merchandise here should at least be as encompassing as the Factors Lien Act. The items in question here were intended for sale and were reasonably identified by the word “merchandise.”

The award to Manchester of the proceeds from sheet steel in Ramm’s possession was based upon the terms of Manchester’s security agreement which purported to cover Ramm’s “inventory” which the document described as follows:

“[G]oods, merchandise and other personal property now owned or hereafter acquired by the Borrower which are held for sale or lease *** and without limiting the foregoing definition the term ‘inventory’ includes all the Borrower’s inventory of steel located in Paris, Illinois.”

The words “steel located in Paris, Illinois” were typed on the pre-printed form. Interstate contends that because Ramm’s principal business was the manufacture and sale of steel grain bins, the definition of inventory in the security agreement would not include steel to be used in the manufacture of the bins, as Ramm did not own or acquire the steel for sale.

Interstate concedes that if the definition of inventory found in the Code had been used in the agreement, the steel would have been covered. The Code definition includes raw materials, work in process, and materials used or consumed in a business. Interstate asserts that Manchester must be bound by the more restrictive definition which they used, and the agreement only covers those items sold by Ramm as part of its business activity.

Although Ramm was not in the business of selling steel, in order to give effect tó every term in the written contract, the steel involved here would be covered by the security agreement as the agreement specifically states that inventory includes “steel located in Paris, Illinois.” There is no dispute over the fact that the items were steel and they were located in Paris. This interpretation is further strengthened because of the rule that the typed portion of an executed form is to be given greater significance than the printed portion. The phrase “steel located in Paris, Illinois” was typed onto the preprinted form. We need not construe the agreement against Manchester, the drafter, because the intent of the parties can be determined.

Although Manchester was first to perfect its security interest, Manchester’s claim to the proceeds from the sale of various items of “merchandise” awarded to Citizens was properly denied by the trial court because Manchester failed to describe those items in its financing statement. (Ill. Rev. Stat. 1979, ch. 26, par. 9 — 312(5)(a).) That statement described the property to which the lien was to attach as “steel inventory.” The items involved in this claim consisted of steel products purchased by Ramm and held for sale as accessories to the bins. Manchester contends that because the items in question are made of steel, they are covered by the financing agreement. However, this interpretation of the phrase does not seem reasonable in view of the fact that Ramm did have sheets of steel in its inventory.

The purpose of a financing statement is to put creditors on notice that further inquiry is prudent. (Marine Midland Bank-Eastern National Association v. Conerty Pontiac-Buick, Inc. (1974), 77 Misc. 2d 311, 352 N.Y.S.2d 953.) Although it is clear that had Manchester used the word “inventory” alone in its financing statement, the items would have been covered, Manchester modified the word “inventory” to include only those items of “steel inventory.” In order to give effect to the plain meaning of the phrase, we hold that Manchester’s perfected security interest is limited to the sheets of steel awarded to them by the trial court. The phrase “steel inventory” does not reasonably identify the items in dispute and does not put a third party on notice that a security interest may exist in these items.

The trial court found the description in Manchester’s financing statement was sufficient to cover the raw steel purchased by Ramm and “the product of that raw steel.” Manchester contends that the trial court erroneously omitted the following items from its determination of what items were products of the raw steel:

Channel lock flooring $3,188.01

1 hog shed 60.00

1 bin door 50.00

1 small metal shed 10.00

1 bin step 6.83

$3,314.84

Citizens does not dispute the finding that the products of raw steel are covered under the financing statement. Evidence at trial showed that these items were the product of the raw steel. As these items were covered by the financing statement, the proceeds of these items should be awarded to Manchester.

Citizens argues that if Manchester is awarded the proceeds from these items then Citizens should be awarded the proceeds from 9,050 pounds of steel ($905) which had been awarded to Manchester by the trial court.Testimony at trial showed that this steel was used by Ramm to make dies for its machines and was not used to manufacture other products for resale. Citizens contends that this steel should have been classified as Ramm’s equipment, which was covered by Citizens’ security agreement. Citizens, however, failed to file a notice of appeal in this issue and therefore has waived this claim.

The judgments of the trial court were proper except that, as we have explained, Manchester should have been awarded an additional sum of $3,314.84 and Citizens’ award should have been less by that sum. To that extent the judgments appealed are reversed. Otherwise, they are affirmed. The case is remanded to the circuit court of Edgar County with directions that the award to Manchester be increased to the sum of $24,110.14 and the award to Citizens be reduced to $8,241.90.

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

WEBBER and LONDRIGAN, JJ., concur.


author: JUSTICE LONDRIGAN

text:
    EDWARD LANNAN POLLOCK et al., Ex’rs of the Estate of Henry W. Pollock, Deceased, et al., Plaintiffs-Appellants, v. J. E. HAFNER, Defendant-Appellee.
    Fourth District
    No. 17447
    Opinion filed August 9, 1982.

      R. R O’Connell, Ltd., of Quincy (Chet W. Vahle, of counsel), for appellants.
    Delmar R. Mitchell and Mark A. Drummond, both of Schmiedeskamp, Robertson, House, Neu & Mitchell, of Quincy, for appellee.
   JUSTICE LONDRIGAN

delivered the opinion of the court:

The plaintiffs sued the defendant, who is both an architect and an engineer, for his allegedly negligent work in designing a building that has settled and cracked. The defendant moved for summary judgment on the grounds that he had not breached his duty of due care and that the complaint is barred by the applicable statute of limitations, five years. The trial court decided that a factual question existed on duty but granted the motion because of the statute of limitations. We agree that the complaint is untimely and affirm.

According to the plaintiffs’ one-count complaint, filed June 22, 1978, the defendant and the plaintiffs’ predecessor in interest signed a contract March 17, 1953, for the defendant “to perform preliminary work and prepare working drawings and specifications for a Motor Truck Branch Service Building.” The complaint alleges that the defendant’s negligence caused the building to subside in August 1976.

In requesting summary judgment the defendant argued that the cause of action accrued in 1957, when subsidence began and structural damage became visible; accompanying the motion were affidavits from five employees in the building who said that various defects, including cracked walls and sunken floors, were apparent as long ago as 1957 and 1962. The plaintiffs moved to dismiss the motion and submitted the affidavit of plaintiff John T. Ennis. According to Ennis, “for some period of time prior to September, 1976,” he and Henry W. Pollock — who died in 1979 and whose executors were substituted as plaintiffs — noticed that walls had cracked and that portions of the floor had sunk, and they employed several experts to investigate. Tests done from September 30, 1976, until October 28., 1976, showed that the building was sitting on a pile of rubble consisting of brick and mortar. Tests done by another expert in November and December 1976 confirmed this and concluded that the building was settling because of its location atop rubble., Ennis’ affidavit asserts that with that information the plaintiffs knew for the first time the cause of the problem. The defendant responded with another affidavit from one of the five employees. The affiant, who saw the excavation for the building, which was from September 1953 until March 1954, said that the excavation revealed rubble — cinders, ashes, brick, and mortar — under the building site. Plaintiff Ennis then filed another affidavit, saying that the excavation revealed rubble, that the defendant changed some plans and designs as a result of that news, and that the contractor increased his price by $44,000 in response to the changes.

The trial court granted the defendant’s motion for summary judgment because as a matter of law the plaintiffs should have known of the defects in the building more than five years before they finally filed suit. Applying the discovery rule, the court measured the plaintiffs’ diligence against the undisputed information in the affidavits submitted by the defendant.

The parties agree that the applicable statute of limitations is the five-year period provided by section 15 of the Limitations Act (Ill. Rev. Stat. 1979, ch. 83, par. 16) for actions “to recover damages for an injury done to property, real or personal.” Section 13 — 214 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 13 — 214), which was formerly section 21.3 of the Limitations Act (Ill. Rev. Stat., 1980 Supp., ch. 83, par. 22.3), provides a shorter period for bringing actions concerning the design and construction of buildings: suit must be filed within two years of when the plaintiff knew or should have known of the “act or omission” complained of, and no action may be brought more than 12 years after the occurrence of the “act or omission”; these two periods may be tacked, giving a maximum limitations period of 14 years (Ill. Rev. Stat. 1981, ch. 110, par. 13 — 214(a), (b)). The provision was not in effect when the plaintiffs filed their complaint and therefore does not apply here. (Hupp v. Gray (1978), 73 Ill. 2d 78, 382 N.E.2d 1211.) Subsection (e) of section 13 — 214 (Ill. Rev. Stat. 1981, ch. 110, par. 13 — 214(e)), which said, “The limitations of this Section shall apply to all acts or omissions which occur on or after November 29, 1979,” has been deleted by revisory legislation, Public Act 82 — 783, to incorporate in the Code the same deletion that had been made in the provision’s earlier incarnation, section 21.3, by Public Act 82 — 539.

The discovery rule applies to actions of architectural malpractice that are brought under section 15 of the Limitations Act (Ill. Rev. Stat. 1979, ch. 83, par. 16). (Society of Mount Carmel v. Fox (1974), 31 Ill. App. 3d 1060, 335 N.E.2d 588, appeal after remand (1980), 90 Ill. App. 3d 537, 413 N.E.2d 480.) The accrual of a cause of action starts the limitations clock; under the discovery rule a cause of action does not accrue until “a person knows or reasonably should know of his injury and also knows or reasonably should know that it was wrongfully caused” (Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407, 415, 430 N.E.2d 976, 980, paraphrasing Nolan v. Johns-Manville Asbestos (1981), 85 Ill. 2d 161, 421 N.E.2d 864, and Witherell v. Weimer (1981), 85 Ill. 2d 146, 421 N.E.2d 869 (unlike the plaintiffs we do not interpret Knox College (leaky roof on a relatively new building) as applying the discovery rule to architectural malpractice, for in that case the supreme court dismissed the only count against the architects because it combined two causes of action, tort and contract; the opinion discusses the rule in the course of analyzing the timeliness of three counts alleging tortious misrepresentation and fraud against the supplier of the roofing materials)). The plaintiffs focus their argument on the second clause of the discovery rule — determining when a party knows or should know that the injury was wrongfully caused — and argue that in this case that is a question of fact rather than law.

Discussing Nolan and Witherell, the court in Knox College cautioned that knowledge of wrongful cause does not mean knowledge that the defendant was negligent or “knowledge that an actionable wrong was committed”; knowledge of wrongful cause falls short of those legal certainties and is instead knowledge that requires a potential plaintiff to investigate and ask whether he has a cause of action, that is, whether the defendant has committed an actionable wrong. (88 Ill. 2d 407, 415-16, 430 N.E.2d 976, 980.) Knox College also says:

“At some point the injured person becomes possessed of sufficient information concerning his injury and its cause to put a reasonable person on inquiry to determine whether actionable conduct is involved. At that point, under the discovery rule, the running of the limitations period commences. As we held in Witherell and Nolan, this is usually a question of fact ***.” 88 Ill. 2d 407, 416, 430 N.E.2d 976, 980-81.

The affidavits submitted by the defendant show clearly that defects were apparent as long ago as 1957. Jasper Harmon Smith, Jr. says in his affidavit that he has worked in the building since April 1954 and that the following damage has been visible since 1957: (1) In the parts department “the floor on either side of the loading dock has subsided approximately four inches”; (2) also in the parts department the south inside wall has cracked and “the floor has subsided approximately three inches”; and (3) outside the building the foundation on the south side of the parts department has cracked. LeRoy. James Franke, who has worked in the building since April 1954, mentions the same three defects listed by Smith and also (4) the floor on the north part of the service department has subsided, and (5) the floor on the southeast side of the salesroom has subsided about two inches. Franke has noticed all five defects since 1957. George W. Holliday has worked in the building since 1962; he lists the same five defects that Franke does and has noticed them since 1962. Luther E. Hullett began working in the building in April 1954 and since 1957 has noticed four of the five problems above, omitting the crack in the foundation. Edward J. Ebbing has worked in the building since April 1954. He lists the five defects mentioned by Franke and Holliday and says that those began in 1957. Ebbing also lists another problem, which developed in 1962: (6) outside the building, at the southwest corner of the parts department, a crack runs from a window down to the west foundation.

The plaintiffs do not dispute that defects were noticeable in 1957 and do not argue that the complaint is based on defects different from the ones listed in the five employees’ affidavits; rather, they say that three subsidences have occurred — one in 1957, one in 1962, and one in 1976 — and that they are suing for the subsidence of 1976. The plaintiffs argue that the motion for summary judgment should have been denied because the defendant has not disputed the occurrence of the last subsidence. The implication of this argument is that even if the earlier subsidences were actionable, the last subsidence has given rise to a new cause of action. The complaint alleges:

“5. Defendant had a duty to design a structure and formulate specifications for its construction proper and adequate for the site location.
6. Although defendant had knowledge prior to construction that the construction site subsurface was altered from its natural state by excavation and ’filled-in basement’ and the nature of the bearing soil was otherwise not suited for the purpose intended, he negligently failed to design and formulate specifications for the construction of the [building].
7. As a direct and proximate result of defendant’s negligence, a subsidence of the bearing soil occurred in August, 1976, causing extensive structural damage to the Building.”

The plaintiffs’ experts attributed the 1976 subsidence to the building’s location atop rubble. The rubble has been under the building since its construction, and given the defendant’s affidavits, the last subsidence signifies merely that whatever problem exists has not cured itself since 1957, when sinking and cracking were first apparent, but is continuing. The 1976 subsidence therefore does not represent a new cause of action. The plaintiffs should have investigated the building’s problems before 1976, and the trial court correctly decided as a matter of law that that inquiry should have begun more than five years before the plaintiffs sued.

In granting the defendant summary judgment the trial court cited Auster v. Keck (1976), 63 Ill. 2d 485, 349 N.E.2d 20, and observed that a plaintiff alleging negligent design must also allege that the defect was not discovered at an earlier time. The complaint here does not allege that the defects in the building could not have been discovered before 1976. This was not the reason why the trial court granted summary judgment, but the defendant raises it on appeal. The sufficiency of a complaint must be attacked by motion (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 615), which the defendant did not do; he instead moved for summary judgment, which “almost necessarily assumes that a cause of action has been stated” (Janes v. First Federal Savings & Loan Association (1974), 57 Ill. 2d 398, 406, 312. N.E.2d 605, 609). Thus, the defendant has waived the objection. Berry v. G. D. Searle & Co. (1974), 56 Ill. 2d 548, 309 N.E.2d 550.

As an alternative ground for affirming the decision the defendant argues that he did not owe the plaintiffs any duty; the trial judge rejected this. In his motion for summary judgment the defendant asserted that he was discharged from his contractual duties by the plaintiffs August 29, 1953, before the excavation, and did not know then about the conditions underground; he repeated this in an affidavit. Plaintiff Ennis’ second affidavit said that the defendant was told about the underlying rubble and changed some plans in response. The scope of the defendant’s duty therefore was in question, and the trial court correctly refused to grant summary judgment on that issue.

Affirmed.

GREEN, P. J., and MILLS, J., concur.


author: PRESIDING JUSTICE GREEN JUSTICE MILLS,

text:
    SHERYL JACO RUSSELL, Adm’r of the Estate of Gerald L. Jaco, Deceased, Plaintiff-Appellee, v. METROPOLITAN LIFE INSURANCE COMPANY, Defendant-Appellant.
    Fourth District
    No. 17476
    Opinion filed August 9, 1982.
    MILLS, J., dissenting.
    Ross E. Canterbury, of Westervelt, Johnson, Nicoll & Keller, of Peoria, for appellant.
    Stephen R. Myers, of Clinton, for appellee.
   PRESIDING JUSTICE GREEN

delivered the opinion of the court:

Plaintiff, Sheryl Jaco Russell, as administrator of the estate of Gerald L. Jaco, deceased, brought suit in the circuit court of DeWitt County against defendant, Metropolitan Life Insurance Company, seeking recovery of certain benefits under a group policy issued by defendant. The policy was held by decedent’s employer, Caterpillar Tractor Company. The decedent was an insured, and his estate was his beneficiary. Defendant paid plaintiff her claim of $15,000 under the regular life insurance provision of the policy. The suit was for an additional benefit in the sum of $14,000, payable if the death resulted “solely through accidental means.” After both parties moved for summary judgment, the trial court granted summary judgment for plaintiff in the sum of $14,000 on September 4, 1981. Defendant has appealed. We affirm.

Plaintiff’s claim arose from Part III of the policy which provided for additional benefits for an insured employee who sustained “bodily injuries solely through accidental means.” Excluded from the foregoing coverage were deaths “caused or contributed to by disease” and those ’’caused by or resulting from intentional self destruction or intentionally self-inflicted injury.” The parties have stipulated that at the time of decedent’s death he suffered from alcoholism which was a “disease” within the meaning of Part III.

The other material facts before the court at the time of the hearing on the motion are also not in dispute. Gerald Jaco, the decedent, was found dead in his truck on December 10, 1979. Next to the body was an open bottle of vodka. An analysis of his blood showed the presence of 0.475 percent alcohol. The parties stipulated that 0.45 percent or greater of alcohol in the blood is considered lethal and that decedent’s death resulted from the consumption of a lethal quantity of alcohol. Sheryl Jaco Russell, plaintiff, stated in her deposition that decedent had been an alcoholic during the 3xlz years of their marriage and that on occasion she would find him unconscious in his truck or in the basement. In 1979, decedent had received treatment and counseling for alcoholism at Proctor Hospital in Peoria and at St. Mary’s Hospital in Decatur. Late in 1979, decedent received counseling for alcoholism and depressive neurosis from the DeWitt County Human Resource Center.

Defendant has withdrawn with prejudice its defense that decedent’s death was caused by or resulted from intentional self-destruction or intentionally self-inflicted injury within the meaning of the exclusionary provisions of Part III of the policy. We agree with the trial court the information before the court also refuted as a matter of law defendant’s claim, under another exclusionary provision of Part III, that the death was “caused or contributed to by disease.”

In Marsh v. Metropolitan Life Insurance Co. (1979), 70 Ill. App. 3d 790, 796, 388 N.E.2d 1121, 1126, the appellate court reversed a judgment entered on a verdict in favor of the defendant in a suit brought by beneficiaries for additional indemnity under policy provisions identical to those here. The decedent, a heroin addict, died after a self-administered overdose of heroin. The evidence did not indicate that the decedent intended to kill himself. The court stated that in determining the cause of death, it “need not seek out the cause of the act of self-injection, i.e., the cause of the cause.” (70 Ill. App. 3d 790, 796, 388 N.E.2d 1121, 1126.) (In Marsh, the court presumed that heroin addiction was a disease but noted that it was questionable whether heroin addiction was, in fact, a disease within the meaning of the insurance policy.)

In Burns v. Metropolitan Life Insurance Co. (1936), 283 Ill. App. 431, the insured died from a fall to the sidewalk from her apartment window. There was evidence indicating that she may have had a dizzy spell as a result of arteriosclerosis and hypertension. The insurance company contended that the plaintiff failed to show that the decedent’s death was not contributed to directly or indirectly by a disease or bodily infirmity. The court said:

“[W]e are inclined to the opinion that under the uncontradicted evidence here, it cannot be said that there is any proof from which the court could reasonably find that disease or bodily or mental infirmity was either an ‘immediate’ or ‘cooperative’ cause of the death of the insured. The means of death being accidental and the death being the immediate result of these accidental means, the accident was the legal cause of death and plaintiff is entitled to recover.” 283 Ill. App. 431, 441.

We find appropriate, as did the court in Burns, Lord Bacon’s maxim, “It were infinite for the law to consider the causes of causes, and their impulsions one of another; therefore it contenteth itself with the immediate cause.” (283 Ill. App. 431, 438.) In the present case, the immediate cause of decedent’s death was the lethal content of alcohol in his body. While alcoholism might have provided the desire to drink, mere desire does not stop a heart or cause the lungs to cease functioning. Therefore, alcoholism can only be considered as a remote cause and not a contributing cause of death. Had defendant submitted evidence that alcoholism had rendered decedent’s body less capable of surviving the dose of alcohol ingested, there would have been a question as to whether a disease contributed to decedent’s death. No such evidence was presented.

A more difficult question is whether, based upon the information before the trial court, it could properly determine as a matter of law that decedent’s death resulted “solely through accidental means.”

Both of the parties moved for summary judgment. We are aware of the theory that, in such a case, because both parties had represented to the court that the case presented no factual issues, the party against whom summary judgment was entered cannot complain unless that party was entitled to summary judgment in its favor. (See Allen v. Meyer (1958), 14 Ill. 2d 284, 152 N.E.2d 576; Comisky v. Farm Dealer Supply, Inc. (1981), 99 Ill. App. 3d 807, 426 N.E.2d 16; Northwestern Mutual Life Insurance Co. v. Wiemer (1981), 96 Ill. App. 3d 549, 421 N.E.2d 1002.) However, the majority is not in agreement as to the application of that theory. (See Nussbaum v. Williams (1980), 86 Ill. App. 3d 272, 407 N.E.2d 1139; Perlman v. Time, Inc. (1978), 64 Ill. App. 3d 190, 380 N.E.2d 1040.) Because the trial court correctly ruled the death resulted “solely through accidental means” as a matter of law, we need not wrestle with the problem of the effect of cross motions for summary judgment.

Our supreme court’s most recent interpretation of the phrase “accidental means” appeared in Taylor v. John Hancock Mutual Life Insurance Co. (1957), 11 Ill. 2d 227, 142 N.E.2d 5. In that case, Frank Owen had conspired with two other men to bum down a house in order to collect on the insurance. The three men poured 10 gallons of gasoline on the floor and furniture of the house. While Owen was in the bedroom collecting bed clothing, the gasoline was ignited, apparently by a furnace pilot light in the living room. Owen was incinerated. His life insurance policy provided that death benefits would be paid if death occurred as a result of bodily injuries sustained solely through accidental means. A suit brought for recovery under the above provision was heard at bench. A judgment for the insurer was reversed by the appellate court. (Taylor v. John Hancock Mutual Life Insurance Co. (1956), 9 Ill. App. 2d 330, 132 N.E.2d 579.) The supreme court affirmed the appellate court thus determining as a matter of law that the arsonist’s death resulted from accidental means.

In interpreting the phrase “accidental means,” the supreme court said:

“In Hlinois, the courts have adopted a liberal attitude in their interpretation of this common insurance provision. In effect, ‘accidental means’ has been held to be synonymous with ‘accidental result,’ and defined as something which happens by chance or fortuitously, without intention or design, and which is unexpected, unusual and unforeseen. (See, e.g., Yates v. Banker’s Life & Casualty Co., 415 Ill. 16; Rodgers v. Reserve Life Insurance Co., 8 Ill. App. 2d 551.)” Taylor v. John Hancock Mutual Life Insurance Co. (1957), 11 Ill. 2d 227, 230, 142 N.E.2d5, 6.

The majority of early opinions dealing with the phrase “accidental means” contain obligatory citations to the United States Supreme Court case, United States Mutual Accident Association v. Barry (1889), 131 U.S. 100, 33 L. Ed. 60, 9 S. Ct. 755. In Barry, the insured, along with two companions, jumped .from a four- or five-foot-high platform. The two companions landed safely but the insured suffered internal injuries and died a few days later. The Supreme Court sustained a jury verdict against the insurance company and held that the trial court had properly instructed the jury as follows:

“[I]f a result is such as follows from ordinary means, voluntarily employed, in a not unusual or unexpected way, it cannot be called a result effected by accidental means; but that if, in the act which precedes the injury, something unforeseen, unexpected, unusual, occurs which produces the injury, then the injury has resulted through accidental means.” 131 U.S. 100, 121, 33 L. Ed. 60, 67, 9 S. Ct. 755, 762.

The quoted language suggests that it is not enough for the resulting injury to be unforeseen; rather, there must be an unforeseen and unexpected cause of the injury. The United States Supreme Court later qualified Barry in Landress v. Phoenix Mutual Life Insurance Co. (1934), 291 U.S. 491, 78 L. Ed. 934, 54 S. Ct. 461, and expressly made the distinction between accidental means and accidental result. In Landress, the decedent suffered a sunstroke while playing golf. His insurance policy provided recovery if death resulted from injuries effected through “external, violent and accidental means.” The Supreme Court affirmed a judgment for the insurer stating “the carefully chosen words defining liability distinguish between the result and the external means which produces it” (291 U.S. 491, 496, 78 L. Ed. 934, 936, 54 S. Ct. 461, 462) and that recovery would be denied even though the death from sunstroke was an accident. The court concluded the death was not from accidental means because the decedent had voluntarily exposed himself to the sun’s rays.

The Landress case is significant because of a dissenting opinion by Justice Cardozo which was a portent of things to come in fllinois. In Justice Cardozo’s view, the means and the result were inseparable and if the result was accidentál, so also was the means. Cardozo warned that “[t]he attempted distinction between accidental results and accidental means will plunge this branch of the law into a Serbo-nian Bog.” (291 U.S. 491, 499, 78 L. Ed. 934, 938, 54 S. Ct. 461, 463.) Whatever may have been the rationale of Hlinois pre-Taylor cases, the opinion in that case made clear that Illinois would thereafter avoid the “Serbonian Bog.” The opinion established that the phrase “accidental means” would be interpreted to cover unintentional and unforeseen results. It focused analysis upon the foreseeability of the injury for which recovery was sought.

Discussions of accidental causes are conspicuously absent in opinions subsequent to Taylor. (Marsh v. Metropolitan Life Insurance Co. (1979), 70 Ill. App. 3d 790, 388 N.E.2d 1121; Hotwick v. Equitable Life Assurance Society (1972), 5 Ill. App. 3d 327, 282 N.E.2d 222; Macklin v. Commonwealth Life & Accident Co. (1970), 121 Ill. App. 2d 119, 257 N.E.2d 256; Passarella v. Board of Trustees (1969), 106 Ill. App. 2d 448, 245 N.E.2d 913; Henry v. Metropolitan Life Insurance Co. (1966), 70 Ill. App. 2d 132, 211 N.E.2d 482.) In determining the foreseeability of an injury, the courts usually inquire whether the injury was the “natural and probable consequence” of the insured’s conduct. Macklin; Passarella; Henry.

Plaintiff strongly asserts the analogy between Marsh and the instant case to support its contention that the decedent’s death here arose, as a matter of law, solely “through accidental means.” The trial court deemed the precedent to be controlling. We agree that the analogy is almost complete. There the deceased, an addict, ingested heroin. Here the deceased, an alcoholic, ingested alcohol. If one of the deaths was more likely to have been anticipated and less likely to be accidental than the other, it would have been the death from the ingestion of heroin.

The Marsh court concluded that the death there was no more foreseeable than that held as a matter of law to be from “accidental means” in Taylor where the decedent had deliberately spilled 10 gallons of gasoline in a dwelling and then been incinerated when a pilot light ignited the gasoline. The Marsh court also deemed the death to have been no more foreseeable than the death in Rodgers v. Reserve Life Insurance Co. (1956), 8 Ill. App. 2d 542, 132 N.E.2d 692, cited in Taylor where the decedent had driven an automobile on a country road at night at a speed of 100 miles per hour. The appellate court not only reversed the Marsh trial court judgment for the insurer, but also remanded the case with directions that judgment be entered for the plaintiffs-beneficiaries. Thus, the appellate court held as a matter of law that the death arose “solely through accidental means.”

The Marsh opinion recognized that inherent in Taylor was a determination that the test of foreseeability in the interpretation of insurance policies differs from that in tort or criminal law. We agree. Clearly, the death of the arsonist in Taylor could have been found to have been foreseeable had a suit in tort arisen from that episode. Likewise, death of an accomplice could have been deemed foreseeable had the arsonist survived and been charged with involuntary manslaughter. Because Taylor set a high threshold of likelihood as being necessary to even raise an issue of fact as to whether an injury or death was foreseeable within the interpretion of policies of the nature before us, we can only conclude that where, as here, the death was no more to be anticipated than in Taylor, no factual question existed and the death was unforeseeable as a matter of law.

As Taylor is the latest supreme court case on the question of the sufficiency of evidence necessary to raise a factual question as to foreseeability, its precedent is binding upon us regardless of subsequent appellate court decisions. However, we do not find any appellate court decision called to our attention to be inconsistent with our determination that no factual issue as to foreseeability existed here. (McCall v. National Life & Accident Insurance Co. (1981), 95 Ill. App. 3d 737, 420 N.E.2d 685; Funchess v. Metropolitan Life Insurance Co. (1981), 94 Ill. App. 3d 871, 419 N.E.2d 706.) Hotwick, and Henry involved attacks by the decedent upon someone else. This conduct would be more likely to generate protective or retaliatory conduct from others that would result in the death of the attacker than would overimbibing be likely to result in the death of the imbiber. The same would be true of Passarella where the insured was killed while attempting a burglary. In Robinson v. Metropolitan Life Insurance Co. (1979), 74 Ill. App. 3d 698, 393 N.E.2d 738, the court upheld a judgment on a verdict in favor of the insurer because there was evidence that the decedent’s death resulted from disease. In Body v. United Insurance Co. of America (1979), 72 Ill. App. 3d 594, 391 N.E.2d 19, the decedent died from a disease contracted post-surgery. In all other cases where the question of the death resulting from accidental means was stated to be one for the trier of fact, the statement was made in the context of affirming a judgment for the beneficiary and was, therefore, dictum.

We affirm the summary judgment entered in favor of the plaintiff and against the defendant.

Affirmed.

LONDRIGAN, J., concurs.

JUSTICE MILLS,

dissenting:

With great respect, I must dissent.

It is true that the case of Marsh v. Metropolitan Life Insurance Co. (1979), 70 Ill. App.3d 790, 388 N.E.2d 1121, is essentially indistinguishable from the case before us. However, for those , who are inclined to follow after Marsh and the majority, I suggest they proceed circumspectly.

The principles governing this case are well established. The test of “accidental means” in Illinois is whether the insured’s injury was unintended and unforeseen. (Taylor v. John Hancock Insurance Co. (1957), 11 Ill. 2d 227, 142 N.E.2d 5.) The parties stipulated that decedent did not intentionally take his life. Therefore, the question is whether decedent’s death was foreseeable. In determining the foreseeability of an insured’s injury, the courts usually inquire whether the injury was the “natural and probable consequence” of the insured’s conduct. (Yates v. Banker’s Life & Casualty Co. (1953), 415 Ill. 16, 21, 111 N.E.2d 516; Macklin v. Commonwealth Life & Accident Co. (1970), 121 Ill. App. 2d 119, 257 N.E.2d 256; Rodgers v. Reserve Life Insurance Co. (1956), 8 Ill. App. 2d 542, 132 N.E.2d 692.) The Marsh court described the foreseeability standard as follows:

“The test of foreseeability in these circumstances appears to be an objective one, phrased in terms of a contingency ‘known to all sensible men as likely to follow’ as a natural result of one’s conduct. (Hutton v. States Accident Insurance Co., 267 Ill. 267, 269 (1915).) It has also been phrased in the objective terms of a contingency which ‘any man with ordinary intelligence and prudence *** could have reasonably foreseen.’ Cory v. Woodmen Accident Co., 333 Ill. 175, 182 (1928). See also Yates v. Bankers Life & Casualty Co., 415 Ill. 16, 21-22 (1953).” 70 Ill. App. 3d 790, 792, 388 N.E.2d 1121,1123.

In the present case, the trial judge apparently found — as a matter of law — that decedent’s death was unforeseeable and entered summary judgment for plaintiff. The function of an appellate court in reviewing the trial court’s entry of summary judgment is to determine whether the trial court correctly ruled that no genuine issue of material fact had been raised for trial. (United Security Insurance Co. v. Mason (1978), 59 Ill. App. 3d 982, 376 N.E.2d 653; Szczesny v. W.G.N. Continental Broadcasting Corp. (1974), 20 Ill. App. 3d 607, 315 N.E.2d 263.) Even where the facts are undisputed, if fair-minded persons may draw differing inferences from those undisputed facts, summary judgment cannot be granted. Cuthbert v. Stempin (1979), 78 Ill. App. 3d 562, 396 N.E.2d 1197; Gagliardo v. Vodica (1978), 58 Ill. App. 3d 1053, 374 N.E.2d 1302.

It is well established that whether the consequences of an insured’s conduct are foreseeable depend upon the facts and circumstances of each individual case. (McCall v. National Life & Accident Insurance Co. (1981), 95 Ill. App. 3d 737, 420 N.E.2d 685; Macklin v. Commonwealth Life & Accident Co. (1970), 121 Ill. App. 2d 119, 257 N.E.2d 256; Wylie v. Union Casualty & Life Insurance Co. (1957), 15 Ill. App. 2d 448, 146 N.E.2d 377.) Accordingly, the pivotal question before this court is whether a fair-minded person could have inferred from the particular facts and circumstances of this case that decedent’s death was the natural and probable result of his conduct.

The record shows that such an inference could have been made. Decedent had been an alcoholic for many years. Several times he had been found unconscious from drinking too much and, consequently, he must have had an awareness of the effect a certain amount of alcohol would have on him. There was evidence indicating that he was aware of the dangers of alcoholism and that he knew he could die from acute alcohol poisoning by drinking a pint or quart of alcohol. The natural effect of alcohol, when taken in excess, is that of a depressant on the nervous system. It is not improbable that the consumption of alcohol, in an amount great enough to raise the blood-alcohol content to .475 percent, would sedate the nervous system to the point where the heart and lungs cease to function. A fair-minded person could have inferred that decedent’s death was the natural and probable result of his voluntary conduct.

In my view, therefore, summary judgment was improper.

The majority ignores the preceding analysis and adopts the misconceived test of foreseeability espoused in Marsh. This new test is that when a death is no more to be anticipated than the arsonist’s death in Taylor, no factual question exists and the death is unforeseeable as a matter of law. The majority gives no explanation, no principled analysis, as to how it determined that an alcoholic’s death from acute alcohol poisoning is no more foreseeable than an arsonist’s death from an ill-timed fire. As the court in Marsh, the majority here is silent with respect to how a court is to quantitatively appraise the foreseeability of a given death and then compare it with the foreseeability of a death occurring under entirely different facts and circumstances. Future “accidental means” cases may now be decided by mere intuition rather than through principled analysis.

The supreme court in Taylor directed us away from Justice Cardozo’s Serbonian Bog by holding that “accidental means” is synonymous with “accidental results.” It appears the majority has found another path to that marshy ground.


author: JUSTICE STOUDER PRESIDING JUSTICE BARRY,

text:
      In re J.A., a Minor.—(THE PEOPLE OF THE STATE OF ILLINOIS, Petitioner-Appellee, v. J.A., Respondent-Appellant.)
    Third District
    No. 81-701
    Opinion filed August 9, 1982.
    BARRY, P. J., concurring in part and dissenting in part.
    Robert Agostinelli and Gary Hicks, both of State Appellate Defender’s Office, of Ottawa, for appellant.

      Bruce W. Black, State’s Attorney, of Pekin (John X. Breslin, of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE STOUDER

delivered the opinion of the court:

This case was previously before us in In re J.A. (No. 80 — 274, 3d Dist., filed January 30, 1981), in which case we held the trial court of Tazewell County lacked jurisdiction in a juvenile proceeding. Our decision relying on In re J.W. (1980), 89 Ill. App. 3d 150, concluded that service on a noncustodial parent was required by statute before jurisdiction of the court could be invoked.

In In re J.W. (1981), 87 Ill. 2d 56, the court reversed the appellate court on the jurisdiction issue and held that a parent in actual uncontested custody of a minor was to be considered as having legal custody of said minor, thereby obviating the necessity of serving the other natural parent. Petition for leave to appeal from our previous decision in the instant case had been granted by the Illinois Supreme Court and after its decision in J.W. this case was remanded to this court for further consideration in light of the supreme court’s decision in the J. W. case.

As directed, we have reviewed our decision and we now hold the trial court did have jurisdiction to enter the adjudicatory judgment which it did. We believe J.W. stands for the proposition that service of notice to a noncustodial parent is not a jurisdictional statutory requirement. Therefore, the failure of the notice by publication in the instant case to comport with the requirements of that mode of service is immaterial since no notice is required.

On May 16, 1980, the trial court entered an order of protection pursuant to section 5 — 5 of the Juvenile Court Act (Ill. Rev. Stat. 1979, ch. 37, par. 705 — 5). The two conditions of that order were:

“That the minor shall attend school each day until the conclusion of the school year.
* * *
That the mother shall cause the minor to attend school each day.”

Following a hearing on May 23, 1980, J.A. was found in contempt of court for failing to abide by the terms of the order of protection.

On this appeal J.A. argues that to the extent the order of protection was addressed to the conduct of the minor it must be considered void. We agree with respondent that the section of the statute dealing with protective orders, section 5 — 5 of the Juvenile Court Act (Ill. Rev. Stat. 1979, ch. 37, par. 705 — 5), does apply only to persons dealing with or having some relation with a minor and not the minor. All of the suggested conditions of such an order operate only on third persons and not the minor. Although the present statute may apply more broadly than its predecessor, the Family Court Act (Ill. Rev. Stat. 1965, ch. 23, par. 2009.1 (repealed 1966)), which specifically described the third persons who could be included in such orders, the thrust of the present provisions still seeks to operate on persons affecting the welfare of the minor.

Even though we believe the order of the trial court was erroneously described as a protective order as it applied to the minor J.A. in this case, there is no question but that the trial court had the jurisdiction and the statutory authority to require J.A. to attend school as it did by one of the conditions of the order. No claim is made that the mislabeling of the order in any way hindered J.A. from knowing what she was required to do. Accordingly, we find that even-though the order may have been irregular in form, it is not improper in substance.

Finally, J.A. argues the court had no authority to place her in the custody of a juvenile facility for contempt of the school attendance order. Both supporting arguments advanced by the respondent have been determined adversely to her in the case of In re G.B. (1981), 88 Ill. 2d 36, and it would serve no useful purpose in reconsidering the issue in this opinion at this time.

For the foregoing reasons the judgment of contempt entered by the circuit court of Tazewell County is affirmed. However, the sentence of five days detention which sentence was stayed pending our decision on appeal has been rendered moot by the lapse of time, and such sentence is vacated.

Judgment affirmed; sentence vacated.

SCOTT, J., concurs.

PRESIDING JUSTICE BARRY,

concurring in part and dissenting in part:

While I agree with the majority’s decision on the merits, I believe that the disposition of the case, i.e., vacating the defendant’s sentence, is not required. Neither party has presented a mootness argument on appeal. In my opinion, we as a court of review should exercise judicial restraint in matters of sentencing and not lightly declare sua sponte that a sentence “has been rendered moot by a lapse of time.”

A moot question has been defined as one that once existed but, because of the happening of some event, has ceased to exist and no longer presents an issue or controversy. (People v. Dawson (1972), 5 Ill. App. 3d 975, 976, 284 N.E.2d 391, 392.) Since J.A.’s sentence was stayed, not served, during the pendency of this appeal, it would appear to me, lacking any argument of counsel or facts of record to the contrary, that the sentence should be affirmed or vacated depending only on our disposition of the underlying contempt finding. To my knowledge, this case represents the first instance, at least in Hlinois, wherein the mere passage of time, without more, has rendered moot a properly imposed sentence which was never served by the defendant. See Annot., 9 A.L.R.3d 462 (1966).

I would affirm both the trial court’s finding of contempt and the five-day sentence.