text:
    Central Wisconsin Motor Transport Company, an Illinois Corporation, Plaintiff-Appellant, v. Sam Levin, Defendant-Appellee.
    Gen. No. 50,435.
    First District, First Division.
    January 7, 1966.

      Peter V. Fazio, Edward Atlas, and Harry G. Fins, all of Chicago, for appellant.

      Altheimer, Gray, Naiburg, Strasburger & Lawton, of Chicago (Lionel G. Gross, David V. Kahn, Howard L. Kastel and Roger B. Harris, of counsel), for appellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

This is an appeal in which plaintiff asserts the trial court committed error in making the finding that “there is no just reason for delaying the enforcement or appeal of this order” under section 50(2) of the Civil Practice Act, upon the motion of the winning party and over the objection of the losing party. Plaintiff also contends that this is a single claim action, to which section 50 (2) does not apply.

Plaintiff filed a one-count amended and supplemental complaint, seeking (a) specific performance, and (b) damages for the alleged breach by defendant of an agreement wherein plaintiff agreed to purchase and defendant agreed to sell a tract of land owned by defendant, intended by plaintiff for truck terminal purposes. The trial court struck the paragraphs pertaining to specific performance and transferred the issue as to damages to the law side of the case, still pending in the Circuit Court of Cook County.

The order was entered on November 30, 1964, and, in part, is as follows:

“A. All allegations in the body of plaintiff’s Amended and Supplemental Complaint as further Amended pertaining to plaintiff’s alleged cause of action for specific performance in equity, namely paragraphs 14, 16, 17 and 18, and all paragraphs of the prayer for relief of plaintiff’s Amended and Supplemental Complaint as further Amended pertaining to relief grantable only by a court of equity, namely paragraphs (a), (b), (c), and (e), be and they are hereby stricken.
“B. Defendant shall answer or otherwise plead to the remaining portions of plaintiff’s Amended and Supplemental Complaint as further Amended setting forth an alleged cause of action at law within thirty (30) days from the entry of this order.
“C. This cause be and it is hereby transferred from the equity docket to the law docket.”

Subsequently, on December 11, 1964, defendant presented a motion, under oath, which requested the modification of the order of November 30, 1964, by making “a finding to the effect that there is no just reason for delaying4 the appeal of the order,” and also dismissing “for want of equity” those paragraphs which referred to “plaintiff’s alleged cause of action for specific performance of the agreement of March 4,1959.”

Defendant’s motion for a modification included the following allegations:

“8. Defendant has an opportunity to sell the real estate that is the subject matter of this litigation. The consequence of the court’s refusal to enter an appealable order on November 30, 1964 is that defendant cannot sell said real estate for a period of. from four to seven years. Any Title Policy to be issued pursuant to said sale will be issued subject to rights of appeal in the instant case. The instant case may well not be decided in the trial court until four to seven years from this date when the action for damages is finally litigated. It is unconscionable that the title to the real estate should be unmarketable for that length of time.
“9. This court had the right and duty to enter an order upon defendant’s Motion to Dismiss which would have been immediately appealable. This follows from plaintiff’s (a) having based its claim upon two contracts, (b) having made claims for relief in the alternative, and (c) the order of November 30, 1964 having disposed of the action for specific performance of the first contract, but not having disposed of the action for damages on the second.”

After several hearings and on February 1, 1965, the trial court, over the objection of the plaintiff, entered a modification order as requested, which modified the order of November 30, 1964, so as to include, “There is no just reason for delaying the enforcement or appeal of this order,” and “by deleting the word ‘stricken’ in paragraph A of said order and inserting the words ‘dismissed for want of equity’ in its place.” Plaintiff appeals.

Initially, plaintiff contends that “the end result of permitting a winning party, over the objection of the losing party, to secure a section 50 (2) finding is to defeat the remedial purposes of the section. It drives the losing party, as in the case at bar, into the anomalous and intolerable position of appealing from an order which it contends is not appealable. Surely this is not the purpose of section 50(2).” Cases cited in support of plaintiff’s theory that it is only “the losing party” who may secure such an order include Vogel v. Melish, 37 Ill App2d 471, 185 NE2d 724 (1962); Krambeer v. Canning, 33 Ill App2d 208, 178 NE2d 147 (1961); Griffin v. Board of Education, 38 Ill App2d 79, 186 NE2d 367 (1962); and Veach v. Great Atlantic & Pacific Tea Co., 22 Ill App2d 179, 159 NE2d 833 (1959).

Considering these authorities, we agree with the pronouncements made in Vogel v. Melish, 37 Ill App2d 471, 185 NE2d 724, where the court said (p 474):

“Section 50(2) was enacted for two principal purposes, (1) to discourage piecemeal appeals and (2) to remove the uncertainty as to the right and time to appeal which theretofore existed when a final judgment was entered on less than all of the matters in controversy. Ariola v. Nigro, 13 Ill2d 200, 148 NE2d 787. A trial judge should keep the first of these purposes in mind when requested to make the express finding that there is no just reason for delaying appeal. As the practice has developed the certification is expected to be entered for the asking, whereas in reality it is a, matter calling for the careful exercise of the court’s discretion.” (Emphasis supplied.)

We also agree that a special finding by the trial court, under section 50 (2) of the Civil Practice Act, does not make a judgment, order or decree final, if in fact the order in question does not fall within the accepted guidelines of a final and appealable order. Griffin v. Board of Education of Chicago, 38 Ill App2d 79, 186 NE2d 781.

Despite the statements made in the cases cited, that section 50(2) was enacted to remove the uncertainty for the losing party as to the right and time to appeal when a final judgment was entered on less than all of the matters in controversy, we find no statement either in the statute or in any case cited restricting the application of section 50(2) to a motion made by the losing party. In Ariola v. Nigro, 13 Ill2d 200, 148 NE2d 787 (1958), the Supreme Court indicated that a broad discretion was conferred by statute to the trial court (p 206) :

“The language of section 50(2), as well as the comments of the committee which drafted it, indicate that a flexible and reasonable meaning was intended for the ‘claims’ to which the section refers.”

The test there enunciated by the Supreme Court is one of general propriety, based upon the inherent factors presented in the “claims” for relief. If the legislature had intended to restrict the benefits of section 50(2) to the losing party, as contended by plaintiff, it would have been very simple to so limit its use. As defendant asserts, “Uncertainty is thereby dispelled and it is dispelled whether the finding be made upon the request of the losing party, upon the request of the winning party, or upon the court’s own motion.” We agree and hold that the use of section 50 (2) is available to either the losing party or the winning party, or by the court on its own motion.

Plaintiff next contends: “The order appealed from is interlocutory. A. Section 50 (2) does not apply to single claim actions. B. The case at bar presents the same situation as Prange v. City of Marion, 297 Ill App 353.”

We agree with plaintiff that “the essential of finality lies at the base of appellate review, and where finality of judgment is lacking, it is the duty of the reviewing court to dismiss the appeal even if the parties fail to bring the insufficiency to the attention of the court.” Chicago Portrait Co. v. Chicago Crayon Co., 217 Ill 200, 75 NE 473 (1905); Brauer Supply Co. v. Truck Co., 383 Ill 569, 50 NE2d 836 (1943).

In Prange v. City of Marion, 297 Ill App 353, 17 NE2d 616 (1938), the plaintiff brought an action and prayed (a) for an accounting, and (b) for damages. The defendant filed a motion to dismiss the complaint or, in the alternative, to strike certain paragraphs therefrom. The trial court sustained the defendant’s motion as to some paragraphs and overruled it as to others, and the cause was left pending in the trial court. The order complained of read as follows: “And those parts of the plaintiffs’ cause of action and complaint to which the defendant’s motion is hereby sustained, are dismissed. . . . the defendant’s motion to strike and to dismiss in all other respects be and the same is hereby denied.” The Appellate Court said (p 356) :

“The order in the instant case merely provided that certain parts of the complaint be dismissed and other portions upheld. It did not, in respect to those dismissed, adjudge that as to those, plaintiffs take nothing, nor that so far as they were concerned, defendant go hence without day; neither did it contain words or phrases of equivalent import, hence within the rule of the cited authorities did not dispose of the rights of the parties respecting such dismissed paragraphs. It was ... ‘no bar to another suit for the same cause of action.’ ”

In Johnson v. City of Rockford, 26 Ill App2d 133, 169 NE2d 534 (1960), it was said (p 137):

“An order providing that certain parts of a complaint be dismissed but not adjudging that plaintiff take nothing nor that defendant go hence without day and containing no words or phrases of equal import, does not dispose of the rights of the parties respecting such dismissed portions and is not a final order from which an appeal will lie.”

Cited, also, on this point are Griffin v. Board of Education, 38 Ill App2d 79, 186 NE2d 367, and American Sav. & Accounting Supply, Inc. v. Steinhauer, 41 Ill App2d 37, 190 NE2d 167 (1963).

From these cases, plaintiff argues that the basic order which terminated plaintiff’s claim for specific performance is interlocutory and is not appealable until the final disposition of plaintiff’s claim for damages.

Defendant states that it “has no quarrel with the Prange case,” and asserts the case is consistent with numerous other cases which hold that an order disposing of a separable part of a controversy to be final and appealable if the intent to make the order final and appeal-able can be gathered from the language used. Cited is Hoier v. Kaplan, 313 Ill 448, 145 NE 243 (1924), where the court said (p 450):

“A judgment at law is a unit. A decree in equity may have the effect of several separate decrees. . . . An appeal may be taken from that part of the decree which deals with a particular subject. . . . The test is whether the decree or order appealed from determines the ultimate rights of the parties with respect to distinct matters which have no bearing on other matters left for further consideration. The circuit court by its order of dismissal determined finally the rights of the parties with reference to a definite and separate portion of the subject matter of the controversy, hence the order was appealable.”

In Mills v. Ehler, 407 Ill 602, 95 NE2d 848 (1950), the court stated (p 610):

“It is not the form of the decree but the substance and effect of the adjudication which is determinative of whether a particular decree is final.”

In Northern Trust Co. v. Essaness Theatres Corp., 348 Ill App 134, 108 NE2d 493 (1952), the court said (p 140):

“We are of the opinion that substantive rights were involved in plaintiffs’ equitable allegations, that they stated an equitable cause of action and that plaintiffs were entitled to try their case in equity upon such equitable issues. In our opinion the case comes within the rule of Mills v. Ehler, 407 Ill 602. . . . While it is true in the instant case the complaint was not divided into separate counts but was treated as a single equitable cause of action, that fact is not sufficient to take this case out of the rule of the above case.”

In Gillespie v. United States Steel Corp., 379 US 148 (1964), the court stated that the requirement of finality is to be given a “practical” rather than a “technical” construction.

It is our opinion the order of November 30, 1964, as modified by the order of February 1, 1965, “determined finally the rights of the parties” with reference to plaintiff’s substantive claim for specific performance, an equitable cause of action and a definite and separate portion of the subject matter of the controversy, of which plaintiff was entitled to try its case in equity. We hold that the order dismissing plaintiff’s claim for specific performance is, in substance and effect, final and appealable.

Considered finally is plaintiff’s contention, “there is involved here only a single claim or ‘factual occurrence,’ ” to which section 50 (2) has no application. Plaintiff argues the mere statement of a claim in several ways does not warrant separate appeals, and “a disposition of certain paragraphs of a complaint, leaving the remainder of the complaint undisposed of, is not a final order” without reference “to the exact form on which the order was cast.”

On this point plaintiff cites Ariola v. Nigro, 13 Ill2d 200, 148 NE2d 787; Veach v. Great Atlantic & Pacific Tea Co., 22 Ill App2d 179, 159 NE2d 833; Canister Co. v. National Can Corp., 163 F2d 683 (3rd Cir 1947); Town of Clarksville, Va. v. United States, 198 F2d 238 (4th Cir 1952). Plaintiff notes that in Ariola v. Nigro, our Supreme Court pointed out that section 50(2) of the Illinois Civil Practice Act was patterned after Rule 54 (b) of the Federal Rules of Civil Procedure, and said (p 204):

“In its most recent pronouncements, . . . the United States Supreme Court has made it clear that the Federal rule does not apply to a single-claim action. . . . Unquestionably it was the intention that section 50 (2) should be similarly limited and we hold that it is.”

In Veach v. Great Atlantic & Pacific Tea Co., 22 Ill App2d 179, 159 NE2d 833, plaintiff filed a two-count complaint for alleged tort. The trial court struck Count II with a finding of no just reason to delay enforcement or appeal. In spite of the trial court’s finding that there was no just reason to delay enforcement or appeal, the Appellate Court dismissed the appeal and said (p 181):

“The policy under the federal rule has been against allowing piecemeal appeals where there is only one actual claim involved. Rule 54(b) permits separate judgments where there are separate and distinct claims based on differing occurrences or transactions. If there is only a single claim or ‘factual occurrence’ involved, the rule cannot be invoked to confer jurisdiction upon an appellate court, and an attempted piecemeal appeal will be dismissed.”

In Canister Co. v. National Can Corp., 163 F2d 683, plaintiff requested specific performance and damages for the breach of a contract. The District Court ruled against specific performance and postponed the hearing on the question of damages. The United States Court of Appeals dismissed appeals from the order and said (pp 684, 685):

“We are of the opinion that the appeals must be dismissed. Rules 54(b) and 42(b) will permit the entry of separate judgments where claims sued on are separate and distinct, based upon differing occurrences or transactions. . . . ‘the mere fact that different claims are made arising out of . . . one contractual provision is not sufficient separation of the “causes” so that piecemeal appeal is permissible.’ ... In the litigation at bar, as we apprehend the facts, there is but one contract wíxich has been found to have been breached.”

In Town of Clarksville, Va. v. United States, 198 F2d 238, it is said (p 240):

“A separate claim is said to be that which is entirely distinct from other claims involved in an action and which arises from a different occurrence or transaction.”

Based upon the foregoing authorities, plaintiff argues, “The gravamen of the Amended and Supplemental Complaint in the case at bar is that defendant committed a single breach of a single contract when he sold off a large slice of the tract of real estate covered by the contract, which plaintiff needed for a truck terminal. This constituted one ‘factual occurrence’ for which the plaintiff sought relief by specific performance as to the balance of the tract, or, in the alternative, for damages for the one and only breach. Hence the case at bar is a single claim action to which section 50(2) has no application.”

The determination of this point rests within the language used in Ariola v. Nigro, where defendants “cross-appealed reasserting their claims to both injunctive relief and the recovery of damages.” The Supreme Court held that the order denying that plaintiffs were entitled to the equitable relief of an injunction disposed of a single claim and was appealable. However, as the trial court had not entered the appropriate finding under section 50(2), the Supreme Court dismissed the appeal stating, “Should, however, the court below, upon the application of either the appellants or cross appellants, see fit to enter a judgment with an express finding that no just reason exists for delaying the appeal,” [Emphasis supplied], the parties need not reprint their brief, and the court would decide the renewed appeal on the record as supplemented.

The court also considered the Federal rule and cases construing and applying it and said (pp 206, 207):

“From the language used, it would appear that the drafters were aware of the confusion and uncertainty attending a test for multiple claims under the Federal rule and expressly sought to avoid it. Most certainly it is not reasonable to assume there was any intention to engraft the uncertainties of Federal procedure in this area into our own.
“. . . Looking to the purpose of the section, in light of the committee’s comments, we are of the opinion that section 50(2) was intended to apply wherever a final judgment or decree determines fewer than all the rights and liabilities at issue, and that a case such as the present is the very case for which the section was designed.”

The reasoning in Ariola v. Nigro was followed in Cunningham v. Brown, 22 Ill2d 23, 174 NE2d 153 (1961), where the administrator of a decedent’s estate sued a number of tavern owners who had allegedly caused the decedent’s suicide by selling him liquor while he was intoxicated. The complaint was filed in three counts. The trial court dismissed two counts and, as part of the order of dismissal, entered the finding required by section 50 (2). The Supreme Court, in denying a motion to dismiss the appeal because only a single claim was involved, said (p 25):

“Although arising from the same occurrence or transaction, the bases of recovery are different. Section 50(2) was intended to apply wherever a final judgment determines fewer than all the rights and liabilities in issue. (Ariola v. Nigro, 13 Ill2d 200.) We think that such is the case here, and that it does not matter, in determining whether multiple counts allege multiple claims for relief, that recovery under one would bar recovery of additional damages under the others. The case is properly here for review.”

See, also, People v. American Nat. Bank & Trust Co., 32 Ill2d 115, 203 NE2d 897 (1965).

Defendant argues, “Distinct sets of rights and liabilities are involved inasmuch as the plaintiff asserts that it has the right to either damages or specific performance and that defendant is liable either to pay money or perform. One set of rights and liabilities was disposed of by the order of dismissal.”

We agree with defendant’s assertion that “the injustice of having the title to defendant’s real estate clouded from 4 to 7 years when it could be cleared up easily by this appeal is manifest. Plaintiff is not harmed. It receives a quick determination of the legal efficacy of its complaint for specific performance.” We hold that section 50(2) does not require that there be separate factual occurrences to have multiple claims for relief. “The right to appeal is not negated, but whether an appeal from a piecemeal order must await final disposition is left to the trial court’s discretion.” Ariola v. Nigro (p 203).

For the reasons given, the order appealed from is affirmed.

Affirmed.

KLUCZYNSKI, P. J. and BURMAN, J., concur.


source: Caselaw Access Project

author: MR. JUSTICE MURPHY

license: Public Domain

text:
    American Insurance Group, a Corporation, Successor to American Associated Insurance Companies, Plaintiff-Appellant, v. Mary Patricia Waclawski, Administrator of the Estate of Zygmunt Waclawski, Deceased, and Hartford Accident and Indemnity Company, a Corporation, Defendants-Appellees.
    Gen. No. 50,463.
    First District, First Division.
    January 7, 1966.

      Peterson, Lowry, Rail, Barber & Ross, of Chicago (Herbert C. Loth, Jr., John W. Gilligan, and Kenneth A. Knutson, of counsel), for appellant.
    Edward D. Lapperre, of Chicago, for appellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

Plaintiff seeks to. recover from the defendants, an administrator and her surety, $2,950 paid by plaintiff to the administrator in settlement of a wrongful death action. The administrator subsequently repudiated the settlement and did not return the money. The complaint consists of two counts, the first predicated on the misconduct of the administrator, and the second against her surety on her official administrator’s bond. The trial court dismissed the complaint as to the surety. Plaintiff appeals on the theoiy that the complaint stated a cause of action against the defendant surety.

The complaint as amended shows that Mary Waclawski was appointed administrator of the estate of Zygmunt Waclawski, deceased, and filed in the Probate Court an administrator’s bond with defendant Hartford Accident and Indemnity Company as surety, and that the provisions of the bond included the following:

“The condition of this obligation is such that if the said Mary Patricia Waclawski, administratrix of the estate of Zygmunt Waclawski, deceased, faithfully discharges the duties of her office according to law and does all acts which may at any time be required of her by law or by a court, then this obligation is void; otherwise it remains in full force.”

The only asset of the estate was a wrongful death action against Joseph Herrera, who was insured by plaintiff’s predecessor corporation. On November 24, 1954, the Probate Court approved a settlement of the cause of action by the administrator for $2,950, and on that day, plaintiff delivered its draft in that amount to the administrator who endorsed and cashed it. Thereafter, on December 21, 1954, the administrator “appeared before the Probate Court of Cook County and repudiated the settlement set forth above and procured an order of the Probate Court of Cook County setting aside the order of November 24,1954 approving the settlement.”

The complaint further states that on February 15, 1955, the administrator filed suit in the Superior Court of Cook County against Joseph Herrera, alleging as a cause of action the wrongful death of the decedent. On March 22,1961, the administrator appeared before Judge Henry W. Dieringer, a Judge of the Superior Court, and procured an order which set aside the release of the cause of action against Joseph Herrera, and also ordered the administrator to repay the $2,950 within 60 days, which the administrator failed to do. This failure to pay is the basis of the present action. Count II charges that by virtue of the above described bond and the wrongful conduct of the administrator, defendant Hartford, as surety, is indebted to plaintiff in the sum of $2,950, together with interest.

The administrator answered both counts and admitted, in substance, all of the allegations of the complaint. For a further answer, the administrator states “that the deprivation of said sum on the part of the plaintiff is not due to any wrongdoing of this defendant, but was done in pursuance to her duties as Administrator.”

Hartford moved to dismiss Count II, and its motion states that “plaintiff has failed to state a cause of action against this defendant, in that the acts and doings of the said Mary Patricia Waclawski, Administrator, . . . were in compliance with valid orders of the Probate Court of Cook County, Illinois.”

A supplement to Hartford’s motion to dismiss states that the Administrator’s bond- “is now void, for the reason that the administrator has performed all acts required of her by the court in which the bond was given, accepted and approved . . . ,” and that “the Order approving settlement and authorizing distribution is not subject to collateral attack but can only be attacked in the Court that entered the Order. The present proceeding is a collateral attack upon a valid Order of the Probate Court of Cook County.”

The trial court sustained the motion and supplemental motion of Hartford, struck and dismissed the complaint as to Hartford, and entered an order “that there is no just reason for delaying enforcement or appeal therefrom.”

Plaintiff contends that Hartford’s motion to dismiss admitted all of the allegations of fact contained in Count II (Villareal v. Trevino, 30 Ill App2d 77, 83, 173 NE2d 582 (1961)), and that the facts state a cause of action against Hartford, as surety on the administrator’s bond.

Plaintiff argues that the “condition” specified in the bond, that “Mary Patricia Waclawski . . . does all acts which may at any time be required of her ... by a court,” has been violated, since she has not complied with the order of the Superior Court requiring repayment of the sum she received from plaintiff in settlement of the wrongful death action.

Plaintiff further asserts that its complaint is not a collateral attack on the Probate Court’s order of approval of the settlement entered on November 24, 1954; that the order entered in the Superior Court on March 22, 1961, which set aside the release and ordered the repayment, was consistent with the order of the Probate Court entered on December 21, 1954, setting aside its settlement approval order of November 24, 1954, and that the administrator “herself elected not to retain the settlement proceeds but rather to litigate her claim. The Probate Court did not say she could keep the settlement proceeds, too, but said in effect only that she was not bound to retain them if she wanted to sue instead.”

Defendant Hartford concedes that its motion to dismiss admits the release was set aside by the Superior Court trial judge, but Hartford does not admit the refusal to repay the funds previously distributed by the Probate Court was wrongful. “Perhaps the trial judge erred in setting aside the release. Perhaps he should have let the release stand and that would have ended the matter. There is no reason to believe plaintiff would not have been satisfied with such a result at that stage of the proceedings, it having held the release and relied upon it nearly seven years after it had been first obtained.”

We agree with Hartford that (1) the Probate Court proceedings, as related in the complaint, were according to statute and the rules of the Probate Court; (2) as all of the occurrences in question took place prior to the adoption of the new Judicial Article of the Illinois Constitution, the Probate Court had exclusive jurisdiction of the probate of the estate and the personal property of the decedent, and the Superior Court was “without jurisdiction to make any disposition of personal property belonging to the estate and in the control of the probate court” (Adams v. Holland, 348 Ill App 320, 322, 108 NE2d 815 (1952)); and (3) judgments and decrees of Probate Courts are not subject to review collaterally by Circuit Courts for error (Healea v. Verne, 343 Ill 325, 333, 175 NE 562 (1931)). “Objection to the validity of the proceedings in the county and probate courts, if any, must be raised in those courts.” Jackson v. Pillsbury, 380 Ill 554, 44 NE2d 537 (1942).

Hartford further asserts that the “dismissal order of Circuit Court, appealed from herein, was grounded on the fact that the order of repayment was entered by a court having no authority to enter such an order.” We do not agree with this premise. The proceeds of a wrongful death action are within the jurisdiction of the Probate Court for the sole purpose of proper distribution, but jurisdiction of the wrongful death action is not. (Ill Rev Stats 1963, c 70, ¶ 2.) In the instant case, we believe it was within the jurisdiction of the Superior Court, in the wrongful death action, to enter an order directing the administrator to repay the proceeds of the “repudiated” settlement.

However, the acceptance by this court of the foregoing pronouncements is not of much assistance in determining the issue here. The instant record does not contain the factual content of the Probate Court orders of November 24, 1954, and December 21, 1954, or of the Superior Court order of March 22, 1961. The record is barren as to whether the administrator made distribution of the settlement funds and what representations were made to the Probate Court on December 21, 1954, and of the terms of the order authorizing the repudiation of the accomplished settlement. Also, for reasons not disclosed by this record, plaintiff apparently never made any attempt in the Probate Court to recover these funds. In the absence of this factual information, we are required to make routine deductions from the record as we find it.

We think it is a fair inference that the order of November 24, 1954, authorized the administrator to accept $2,950 in settlement of the wrongful death action, to execute a proper release, and to distribute the money as directed. At that posture of the case, the heirs at law or persons entitled to participate in the agreed settlement were the ones for whose benefit the bond was given. If the money were then distributed to those entitled to receive it, the administrator would have faithfully discharged “the duties of her office.”

The official bond of an administrator is “given to protect the creditors of the estate and the heirs of the decedent against loss and for no other purpose.” (People for Use of Dyer v. Sanculius, 284 Ill App 463, 472, 2 NE2d 343 (1936).) Ordinarily, there may be recovery on the bond only if someone for whose benefit it. was given suffered damages. (34 CJS, Executors and Administrators, § 944; National Surety Co. v. Wages, 48 Ga App 720, 173 SE 451 (1934).) In our opinion, plaintiff has not alleged any facts to show that the liability on the administrator’s bond here should be expanded to secure other than creditors, legatees and next of kin from loss through the default or fraud of the administrator. Plaintiff does not occupy the status of an heir at law, legatee or a creditor, in their accepted sense and therefore is not one for whose benefit the bond was given. Any damages suffered by it as a result of its dealing with the administrator are not recoverable from the surety. In People v. Huffman, 182 Ill 390, 55 NE 981 (1899), the court stated (p 401):

“The contract of a surety is to be construed strictly, both in law and equity, and his liability is not to be extended, by implication, beyond the terms of his contract. To the extent and in the manner and under the circumstances pointed out in his obligation is he bound, and no further.”

The administrator here may have received money for which she has no authority to retain and for which she may be liable individually, but it is not a charge upon the estate of the decedent for which her surety can be held liable. Young v. People, 35 Ill App 363 (1890).

We conclude plaintiff’s action against the administrator does not come within the generally accepted area of liability or purpose of an administrator’s bond, and defendant Hartford, as surety, should not be held liable for an alleged wrongful act beyond the scope of its undertaking.

For the reasons given, the order appealed from is affirmed.

Affirmed.

KLUCZYNSKI, P. J. and BURMAN, J., concur.


author: JUSTICE MURPHY.

text:
    Hazel Parkinson, Plaintiff-Appellant, v. Elsie Hill, Defendant-Appellee.
    Gen. No. 50,612.
    First Division, First District.
    January 7, 1966.
    Charles V. Falkenberg, Jr., of Chicago, for appellant; no briefs filed for appellee.
   Opinion by

JUSTICE MURPHY.

Not to be published in full.


author: JUSTICE BURKE.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Eunice L. Easley, Defendant-Appellant.
    Gen. No. 50,097.
    First District, Second Division.
    January 11, 1966.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Austin G. Rigney and James J. Doherty, Assistant Public Defenders, of counsel) for appellant; Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Stuart P. Shapiro, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by

JUSTICE BURKE.

Not to be published in full.


author: PRESIDING JUSTICE BRYANT.

text:
    People of the State of Illinois, Defendant in Error, v. Robert Quinlan (Impleaded), Plaintiff in Error.
    Gen. No. 50,485.
    First District, Second Division.
    January 11, 1966.
    Ronald L. Boorstein, of Chicago, for plaintiff in error; Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Kenneth L. Gillis, Assistant State’s Attorneys, of counsel), for defendant in error.
   Opinion by

PRESIDING JUSTICE BRYANT.

Not to be published in full.


author: SMITH, J. CRAVEN, J.,

text:
    Norma J. Anderson, Rita J. Anderson, a Minor, by James F. Anderson, Her Father and Next Friend, and James F. Anderson, Individually, Plaintiffs-Appellees, v. Richard J. Jones and John D. Zehr, Defendants. Richard J. Jones, Defendant-Appellant.
    Gen. No. 10,631.
    Fourth District.
    January 11, 1966.
    Rehearing denied February 3, 1966.

      Earl S. Hodges, of Springfield (Samuel C. Patton, of counsel), and Phillips, Phebus & Tummelson, of Urbana, for appellant.
    Mathis, Turnbow & Mathis, of Rantoul (Robert A. Mathis, of counsel), for appellees.
   SMITH, J.

Plaintiffs obtained a joint judgment against both defendants for injuries arising out of an automobile accident. Defendant Jones alone appeals and contends that the trial court should have directed a verdict or granted a judgment notwithstanding the verdict for the sole and simple reason that the negligence of defendant Zehr was the sole and proximate cause of plaintiffs’ injuries. This is the single issue which we review.

The events occurred on Interstate 74 about 7:30 p. m. on November 2, 1962, near the north edge of the city of Champaign where the highway passes over the Illinois Central Railway. The highway consists of two westbound lanes and two eastbound lanes separated by a concrete median strip some 6 inches in height and three feet wide. It was misting rain, the pavement was wet and the temperature about 40 degrees. There was no ice on the railroad overpass and all cars were using their lights. For some reason not explained in the evidence, defendant Jones lost control of his car while attempting to pass another car going west as he was, went across the median into the eastbound lane and collided with a Buick car driven by one Clifford Johnson. At about this time, a Thunderbird driven by James Watson was traveling east in the northern-most lane of the eastbound traffic. Jones’ right rear collided with the right rear of the Thunderbird and came to rest completely in the eastbound lanes blocking traffic. The Thunderbird crossed over the median strip and came to rest in the westbound lanes blocking traffic. A line of cars formed to the east of the Thunderbird in both westbound lanes. One Manson stopped his Chevrolet at the east end of this line of cars because he could not get through. Plaintiff and his family, in a 1958 Prefect, an English car, stopped about 30 feet east of and behind the Manson Chevrolet. Both the Chevrolet and the Prefect were in the north lane of the westbound traffic. While plaintiffs were completely stopped and in repose, the defendant Zehr drove into the plaintiffs’ car pushing it into the rear of the Manson Chevrolet. Manson testified he had been stopped about five minutes before plaintiffs’ car struck his car. Plaintiff Anderson said he was stopped about two or three minutes before he was hit. The number of cars in this lane was not established. A police officer some two miles away from the scene when notified of the first accident arrived and was in the process of placing fuses when the Zehr-Anderson collision occurred.

These facts, coupled with the single issue of proximate cause raised by Jones on this appeal, require us to embark on our review with the negligence of each defendant and plaintiffs’ freedom from contributory negligence resolved for us. We are foreclosed from scrutinizing them. They are established. Jones contends that his act did nothing more than furnish a condition by which the injury to the plaintiffs was made possible; that it was followed by the new intervening and independent act of negligence on the part of the defendant Zehr; and that it is the latter rather than the former that was the efficient and proximate cause of the injury. Both the jury and the trial court thought otherwise. Plaintiffs contend that the subsequent independent act of Zehr or somebody was reasonably probable or foreseeable by Jones and hence the chain of causal connection was not broken and in any event the question of proximate cause is not one of law for the court but a question of fact for the jury. To sustain the judgment against both, plaintiffs thus contend that Jones is the Alpha and Zehr the Omega of the negligence chain.

The material facts are not in dispute. The credibility of witnesses is not involved. The area of our inquiry is limited. We haven’t much running room. Judicial appraisal of this record to determine whether a jury question is presented is narrowly limited to the single question whether, with reason, the conclusion may properly be drawn that Jones’ negligence proximately contributed to the injuries of the plaintiffs. Findley v. New York Cent. R. Co., 19 Ill2d 428, 167 NE2d 212. In the record before us, the issue is further limited to the very narrow question whether the intervention of a new, independent, efficient and intervening cause was reasonably probable or reasonably foreseeable or could have been reasonably anticipated by Jones. The applicable rule is stated in Neering v. Illinois Cent. R. Co., 388 Ill 366, 381, 50 NE2d 497, 504, thusly:

“The rule that the casual connection between a person’s negligence and an injury is broken by the intervention of a new, independent, efficient and intervening cause so that the negligence is not actionable is subject to the qualification that if the intervening cause was foreseen or reasonably might have been foreseen by the wrongdoer, his negligence may be considered the proximate cause of the injury and he may be held liable notwithstanding the intervening cause. The intervening act of a third person does not necessarily relieve the author of an earlier negligent or wrongful act from responsibility when the intervening cause of an injury is of such nature as could reasonably have been anticipated, in which case the earlier negligent act, if it contributed to the injuries, may be regarded as the proximate cause.”

An intervening and efficient cause was defined in Ney v. Yellow Cab Co., 2 Ill2d 74, 117 NE2d 74, 78, in these words:

“. . . In Johnston v. City of East Moline, 405 Ill 460, 91 NE2d 401, 403, we declared: ‘An intervening and efficient cause is a new and independent force which breaks the causal connection between the original wrong and the injury and itself becomes the direct and immediate cause of the injury. [Citations.] The intervention of independent concurrent or intervening forces will not break causal connection if the intervention of such forces was, itself, probable or foreseeable. [Citations.]’”

The almost universal acceptability of these principles has not deterred their application with varying and seemingly contradictory results. We will not be so temerarious as to attempt a reconciliation of the uncounted and countless cases. In the last analysis, each case is bottomed on its own set of facts, its factual twin is seldom, if ever, available as an infallible guide and hence the facts of the particular case determine whether a question of fact or a question of law is presented. Wooff v. Henderson, 46 Ill App2d 420, 197 NE2d 103; Pantlen v. Gottschalk, 21 Ill App2d 163, 157 NE2d 548.

It is quite clear that the immediate cause of plaintiffs’ injuries and damages was the force set in motion through the negligent act of Zehr. The force set in motion by Jones had spent itself. It was in repose. It was quiescent. The incident was at an end. Plaintiffs were home free save for the wrongful act of Zehr. Jones, too, is home free from responsibility unless it can be said that he should have reasonably anticipated or reasonably foreseen these or like results or that these or like results were reasonably probable. If they were, the causal connection is not broken. If they were not, Jones is effectively insulated from responsibility and the new force of Zehr is the sole and proximate cause of plaintiffs’ injuries.

In his dissent in Pearce v. Commissioners of Internal Revenue, 315 US 543, 86 L Ed 1016, 62 S Ct 754, Justice Frankfurter aptly observed that “in law, as in life, lines have to be drawn,” but they should be drawn from some policy rooted either in logic or in experience. In undertaking to draw the line in this case, we are aided by considerations which have apparently guided others where successive collisions occurred. Restatement of Torts, 1948 Supp ¶ 433, 442, 477, 58 ALR 2nd 270 et seq. They are (a) lapse of time; (b) whether the force initiated by the original wrongdoer continued in active operation up to the injury for which recovery is sought; (c) whether the act of the intervenor can be considered extraordinary rather than usual or normal and (d) whether the intervening act was a normal response to the situation created by the wrongdoer or an extraordinary response.

Applying these principles to the case at bar, we observe: (a) some 3-10 minutes elapsed between the first and second collision; (b) the original moving force was fully spent and not in operation at the time of the second collision and (d) and (e) Zehr’s act was the unusual rather than the usual result of a like situation. Anderson, Manson and an unspecified number of others acted differently than Zehr. His was the extraordinary rather than ordinary reaction to the situation. He alone failed to follow the pattern of conduct all others followed after the force of the first collision came to a rest. Would an ordinary prudent person anticipate his conduct or the conduct of the others? If it is the latter that is reasonably foreseeable, reasonably to be anticipated or reasonably probable, then, as we have seen, the chain of causation is broken; there is no nexus between the negligence of Jones and the negligence of Zehr and they are not concatenated in time or space or in common experience. We think as a matter of law that such is the case.

Plaintiffs rely heavily on Ney v. Yellow Cab Co., 2 Ill2d 74, 117 NE2d 74, in insisting that the question of proximate cause is not for us but for the jury. We think the rationale of that case is poles apart from the rationale with which we are confronted. There, the Supreme Court was dealing with the consequences flowing from the failure of the defendant to comply with a statute which forbade leaving a motor vehicle unattended and with the key in it. It was confronted with divergent appellate court decisions on the question of proximate cause in such cases. See Ostergard v. Frisch, 333 Ill App 359, 77 NE2d 537; Cockrell v. Sullivan, 344 Ill App 620, 101 NE 2d 878. In Ostergard, one of the justices dissented. In Ney, Mr. Justice Hershey dissented. Reasonable minds disagreed. Thus, in retrospect, it could be appropriately a question for the jury. We would further observe that Ney was decided as a matter of law on the pleadings and the opinion itself recognizes possible factual variations which might arise from the evidence. At that stage, the Court held as a matter of law that the question of proximate cause under the pleadings was a question of fact for the jury. We have the facts. We must now determine from these facts as a matter of law whether Jones was a concurrent proximate cause of the damage to plaintiffs.

Jones’ negligence set up non-normal road conditions, conditions seen, observed and recognized by all others who were not the victims of the original force initiated by Jones. The negligence of Jones created the conditions. The negligence of Zehr caused the injuries to the plaintiffs solely because he failed to see, observe and to act as the others did and as he might have done, had he acted and responded as a reasonably prudent man. That Jones was the proximate cause of the damage to Johnson’s Buick and to Watson’s Thunderbird is clear. It is equally clear that there then occurred a clean-cut break in the chain of causation. Zehr’s negligence initiated a new force and began a new chain of causation that cannot trace its origin in whole or in part to Jones.

In reaching this conclusion we are not unmindful of Kacena v. George W. Bowers Company, 63 Ill App2d 27, 211 NE2d 563, invoking the doctrine of Ney where the defendants left the keys in new cars parked on their lot, at the curb, and in the street. We agree with that Court that under the “unique facts” of that case the doctrine of Ney properly controlled and the question of proximate cause was for the jury. There the legislature had recognized the danger to the public from automobiles falling into irresponsible hands from the failure of the owner to stop the engine, lock the ignition and remove the keys. Under such circumstances injuries to the person or property of others were reasonably foreseeable and its frequency undoubtedly prompted the legislature to act. We think the common. experience of man in the one instance is far removed from the common experience of man in the circumstances which we review. Practical considerations support the one and disavow the other.

Accordingly, the judgment against defendant Jones must be and it is hereby reversed.

Reversed.

TRAPP, P. J., concurs.

CRAVEN, J.,

dissenting:

The only issue presented by this record is one of fact for the jury.

The record establishes that the plaintiffs were injured, were free of contributory negligence, and that Jones and Zehr were both negligent. Jones, by his initiating negligence, set the stage for the subsequent events resulting in the plaintiffs’ injuries. A properly instructed jury, after a trial remarkably free of error, found both Jones and Zehr guilty of the negligence charged. The verdict was for damages not claimed to be excessive, and the judgment entered upon that verdict should be affirmed.

The majority opinion, by deciding this case as a matter of law on the question of proximate cause, invades the exclusive domain of the jury. Proximate cause is a question of law only when all reasonable minds agree as to an interpretation of a set of facts. (65 CJS Negligence § 264.)

The intervening force in this case is the negligence of Zehr. The majority opinion, by its holding, determines his negligence to be the sole cause of the injuries. Implicit in so holding is a determination, as a matter of law, that Jones’ negligence was not a substantial factor nor its consequences reasonably foreseeable with reference to plaintiffs’ injuries.

In Restatement, Second, Torts, § 443, at p 472, we find:

“The intervention of a force which is a normal consequence of a situation created by the actor’s negligent conduct is not a superseding cause of harm which such conduct has been a substantial factor in bringing about.”

and at p 499, § 435 in the same work, the following:

“. . . If the actor’s conduct is a substantial factor in bringing about harm to another, the fact that the actor neither foresaw nor should have foreseen the extent of the harm or the manner in which it occurred does not prevent him from being liable..
“. . . The actor’s conduct may be held not to be a legal cause of harm to another where after the event and looking back from the harm to the actor’s negligent conduct, it appears to the court highly extraordinary that it should have brought about the harm.”

Ney v. Yellow Cab Co., 2 Ill2d 74, 117 NE2d 74, holds that a jury is entitled to determine proximate cause when one who has stolen a car causes injuries while in flight. The defendant owner of the car, by leaving the keys in the ignition, does not become insulated from liability by an intervening criminal act. Such intervening criminal act certainly was no more foreseeable than the negligence of Zehr on the facts in this case.

Kacena v. George W. Bowers Co., 63 Ill App2d 27, 211 NE2d 563, goes a step beyond Ney. There the thief traded the stolen car to a fourteen-year-old boy for a bottle of whiskey. In driving the car, the fourteen-year-old boy injured the plaintiff. The defendant owner was not insulated by the intervening theft of the car nor its barter by the thief to a driver who injured the plaintiff. The case with which we are now dealing on its facts involves a chain of events infinitely more foreseeable than those in Kacena. The opinion in Kacena characterized the facts as “unique.” So they are—yet a jury could and did find, as a matter of fact, that the injuries of the plaintiff there were foreseeable.

In Belcher v. Citizens Coach Co., 327 Ill App 618, 64 NE2d 747, it was held that the blocking of a street by parked busses could constitute negligence and proximate cause of a collision even though negligence—even wilful and wanton misconduct—of a third party intervened in the chain of events leading to the injury. There, as here, the initiating negligence was in repose. Even so the bus company was held liable for its negligence. “. . . the jury has a right to determine as a question of fact what was the proximate cause of the collision under a state of facts such as we find in the instant case. . . .” Those words of the court in Belcher apply here.

The judgment of the circuit court of Champaign County should be affirmed.


author: CRAVEN, J.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. James D. Ritchie, Defendant-Appellant.
    Gen. No. 10,637.
    Fourth District.
    January 11, 1966.

      McCoy, Ming & Black, of Chicago (Ellis E. Reid, of counsel), for appellant.
    John J. Bresee, State’s Attorney of Champaign County, of Urbana, for appellee.
   CRAVEN, J.

James D. Ritchie was convicted in the circuit court of Champaign County of the charges of rape and burglary. Two concurrent sentences of fifteen years to life were imposed. This appeal is from that proceeding.

It is here contended that the refusal of the trial court to allow the defendant’s motion for a continuance, in order to enable him to obtain counsel of his choice, was an abuse of discretion. It is further contended that the trial court proceedings subsequent to the denial of the motion for continuance were so conducted as to deny the defendant a fair trial. Examination of this assigned error necessitates a recitation, chronologically, of the proceedings immediately prior to and on the day of the trial.

The defendant was indicted on September 17, 1964, arraigned September 18, at which time he was represented by the public defender. He entered a plea of not guilty. In October the case was allotted for trial on November 9. On November 5 defendant appeared with his counsel, the public defender, waived trial by jury, and the prior trial allotment was vacated and the case was set for a bench trial November 24, 1964. On the date the matter was set for trial, the defendant appeared with his counsel, the public defender, and again made a motion for a continuance, asserting that relatives of the defendant desired to obtain for the defendant a private attorney to handle the case. The trial was on November 24.

The record with reference to this motion for continuance indicates that the public defender moved to continue the cause, and in so doing represented that a Chicago attorney by the name of Berkus had contacted the public defender and indicated he might enter his appearance in the case. On November 24 this same attorney had talked with the public defender by telephone, reasserting these same representations and requesting the public defender to obtain a continuance. The state’s attorney objected, observing that the defendant had been in custody continuously since July 10, 1964, and that he had had ample opportunity to obtain counsel. The motion for continuance was denied.

The public defender then moved to vacate his appointment as counsel for the defendant, asserting his belief that he should not try the case under the circumstances then existent. After objection by the State, the motion was denied, whereupon the public defender stated: “I would like to show for the record I intend to not try the case. Howéver, if I am appointed by the Court I will remain in the courtroom.”

The defendant was then sworn and testified with reference to the efforts to employ private counsel, stated his desire to have an attorney represent him and that he did not desire the service of the public defender. This was followed by statements for the record by both the public defender and the state’s attorney concerning the efforts of the defendant to obtain counsel and conversations relating thereto.

After the denial of the continuance and the denial of the motion to withdraw by the public defender, the court advised the public defender: “I think you should sit in the courtroom and give the defendant such help as he wants you to give him. What do you want to do, Mr. Ritchie? Do you want to try the case yourself? Or do you want the help of the Public Defender ? What do you want?” The defendant replied: “Well sir, I do not want the help of the Public Defender. My family has hired a lawyer.” Thereupon the court ordered the trial to proceed, the defendant to conduct his case himself, with the public defender ordered to sit in the courtroom available to represent the defendant, the use of the public defender’s services to be optional with the defendant.

The trial proceeded with little representation of the defendant by the public defender and essentially none by the defendant.

In People v. Solomon, 24 Ill2d 586, 589, 182 NE2d 736, the court stated:

“The granting of a continuance to permit preparation for a case, or for the substitution of counsel, necessarily depends upon the particular facts and circumstances surrounding the request, and is a matter resting within the sound judicial discretion of the trial court. (People v. Surgeon, 15 Ill2d 236; People v. Clark, 9 Ill2d 46.) Before a judgment of conviction will be reversed because of the denial of such a motion, it must appear that the refusal of additional time in some manner embarrassed the accused in preparing his defense and prejudiced his rights. (People v. VanNorman, 364 Ill 28; see also: Holt v. United States, (8th cir) 267 F2d 497; United States ex rel. Thompson v. Nierstheimer, (7th cir) 166 F2d 87; Crono v. United States, (9th cir) 59 F2d 339.)”

Further in the course of this opinion the court observed that the right of an accused to be represented by counsel of his own choosing in a criminal case is not to be employed as a weapon to indefinitely thwart the administration of justice or otherwise to embarrass the effective prosecution of crime.

Thus it seems clear that the granting of a continuance on the facts of this case must be measured by the standards set forth in the Solomon case. Here, the defendant, who had been continuously incarcerated, believed and represented to the court that his family or friends were obtaining private counsel. The record demonstrates that the defendant was cooperating with the public defender although, in some measure, dissatisfied with his services. The record further shows to us that the defendant was desirous of the assistance of counsel. The defendant had waived jury trial and his motion for a continuance, under the facts existing in this case, cannot be said to have been the exercise of a right for the purpose of frustrating the administration of justice.

We have examined the cases cited in support of the denial of the continuance and note substantial variations from the facts of this case. In People v. Barnes, 26 Ill2d 563, 188 NE2d 7, a continuance was sought on the day of trial on the ground that counsel had not had an opportunity to contact all the witnesses for the State. There the list of witnesses had been furnished from three to nineteen days prior to the date of trial. The court found no abuse of discretion in the denial of the motion for continuance, particularly when the testimony of the witnesses was found to be merely cumulative. In People v. Robinson, 27 Ill2d 289, 189 NE2d 243, it affirmatively was shown that after discharge of court-appointed counsel no request for a continuance was made, but the defendant noted that he could obtain legal counsel. People v. Kenzik, 22 Ill2d 567, 177 NE2d 162, and People v. Bush, 32 Ill2d 484, 207 NE2d 446, both relate to waiver of counsel and the exercise of the concurrent right to conduct one’s own defense rather than the propriety of granting a continuance.

A careful review of this entire record leads us to the conclusion that the denial of the continuance on the facts of this case was an abuse of discretion. Having reached this conclusion, we need not pass upon the applicability of section 113-3 (b) of the Code of Criminal Procedure (Ill Rev Stats c 33, § 113-3 (b), 1963), with reference to the appointment of other counsel.

We have, this date, filed an opinion in the case of People v. Ritchie, 66 Ill App2d 302, 213 NE2d 651, and there discussed the question of sentencing. The observations there made have equal applicability to this case.

For the reasons stated, the judgment of conviction is reversed and the case is remanded to the circuit court of Champaign County for a new trial.

Eeversed and remanded for a new trial.

TEAPP, P. J. and SMITH, J., concur.


author: SMITH, J.

text:
    Duane A. Rahn, as Guardian of the Estate of Raymond Daniel Rahn, a Minor, Plaintiff-Appellant, v. M. H. Beurskens, Defendant-Appellee.
    Gen. No. 10,646.
    Fourth District.
    January 11, 1966.

      Webber, Balbach & Thies, of Urbana (Stanley B. Balbach, of counsel), for appellant.
    Lemma & Lee, of Tuscola, for appellee.
   SMITH, J.

Raymond Rahn, a 15-month-old toddler, by his guardian, sued the landlord of his father for personal injuries sustained when he grasped a defective outside electrical wire on the premises with one hand and a water faucet with the other. At the close of plaintiff’s evidence, the trial court directed a verdict, denied a post-trial motion and entered the judgment in bar which we now review.

Defendant successfully contended in the trial court, as he asserts here, that he cannot be liable for defects on the leased premises unless plaintiff establishes (1) that defendant retained possession of that part of the premises where the injury occurred; (2) or that the defect was latent; (3) or that the defendant had actual knowledge of such defect at the time of the letting and concealed it from the tenant; (4) or that any agreement to repair was entered into at the inception of the lease. Plaintiff apparently concedes that one or inore of these conditions are a prerequisite to liability in proper cases and that none of them exist under the facts of this case. Nevertheless, he asserts that his age insulates him from the effective application of any of these conditions and that his right to recovery is based on ordinary rules of negligence. This is the issue.

The Rahns leased the property from the defendant on a month-to-month basis and moved into it in August 1962, with their four children who were all below the age of 10 years. At the time of the leasing, defendant was cleaning up the house and testified when called as an adverse witness: “. . . After Mr. Waugh moved out I cleaned up and painted and varnished the floor and woodwork and the house was in 100% good condition at the time that I rented it to the Rahns. I checked everything before it was rented to the Rahns including the wiring and it was all in good shape. All was okay. At the time I rented to them I think they had three or four children. . . .” Waugh, the previous occupant, testified that he “observed the cable on the west side of the house and at certain spots of the cable it was bare like it had been eaten away or gnawed on or something.” He told the defendant he was going to have the house rewired but specified no particular wire. Defendant told him if he thought it needed rewiring to go ahead as it was his responsibility under his purchase contract. Defendant further testified that he made any repairs the Rahns requested and repaired a sewer and put in a screen within 10-12 feet of the cable in question. Mrs. Rahn said she noticed the wire and asked defendant about it when she paid the rent after the first month and again in the spring when she asked him to repair it, he said “he would see about having it fixed.” Mr. Rahn also testified to defendant’s promise to fix the wire within a week after they moved in and again when the sewer was being fixed and again in the spring. On this latter occasion, defendant said: “Hasn’t Sparks fixed it yet—I told him about it.” The wire was a Romax two-wire installation running from the meter down the side of the house near the water faucet. An offer of proof that the cost of repair would be $15 to $20 was refused.

Taking this evidence in the light most favorable to the plaintiff as we must in considering the propriety of the directed verdict, we think the evidence suggests (1) that the wiring was in a defective condition at the time of the leasing; (2) that the defendant knew or should have known it; (3) that defendant knew that the young children frequented the vicinity; (4) that he knew small children would not understand or appreciate the danger; (5) that injury to person or property was reasonably foreseeable from its condition; and (6) the cost of repair was minimal. Under these circumstances, what was the duty and what is the liability of the defendant?

In Wagner v. Kepler, 411 Ill 368, 104 NE2d 231, the court recognizes the general rule that, absent an agreement concerning repairs, the lessee and not the owner is liable to third persons for injuries received as a result of a failure to keep leased real estate in repair. It likewise recognizes the rule that where an owner has actual or constructive notice of a defective and dangerous condition existing at the time of the lease which remains uncorrected the owner, notwithstanding the lease, is liable to strangers for injuries resulting from such defective condition to the same extent as if he were in control and possession of the property. (Citing cases.) In discussing the rule as to small children where the attractive nuisance doctrine does not apply, the court states the rule to be:

“. . . [W]here an owner knows, or should know, that young children habitually frequent the vicinity of a defective structure or dangerous agency existing on the land, which is likely to cause injury to them because they, by reason of their immaturity, are incapable of discovering the danger or appreciating the risk involved, and where the expense or inconvenience to the owner in remedying the condition is slight compared to the risk to the children, the duty devolves upon the owner to exercise due care to remedy the condition or otherwise protect the children from injury resulting from it. Ramsay v. Tuthill Building Material Co., 295 Ill 395, [129 NE 127, 129, 36 ALR 23]; Gritton v. Illinois Traction, Inc., 247 Ill App 395; Restatement of the Law of Torts, sec 339; Prosser on Torts, sec 77. . . .”

The foregoing rule was followed in Kahn v. James Burton Company, 5 Ill2d 614, 126 NE2d 836, where, in discussing the liability of one who was neither a lessor nor a lessee nor one in possession either of the premises or the instrumentality causing the injury at the time of its occurrence, the court adopts the rule that the true basis of liability to a child is the foreseeability of harm to the child and customary rules of negligence apply. Kahn has been discussed and applied with approval in a variety of circumstances. American Nat. Bank & Trust Co. v. Pennsylvania R. Co., 52 Ill App2d 406, 202 NE2d 79; Smith v. Springman Lumber Co., 41 Ill App2d 403, 191 NE2d 256; Skaggs v. Junis, 27 Ill App2d 251, 169 NE2d 684. These cases, as well as Kahn, hold that the issues presented are normally, usually and preeminently questions of fact for the jury. We, therefore, conclude that the trial court erred in directing a verdict as a matter of law and that the issues should have gone to the jury.

We recognize as other courts have done that a small child is explorative and inquisitive by nature and the number and manner of ways he can find to injure himself is almost limitless. We therefore disclaim any intention of suggesting that the mere fact of injury to ohe of tender years is in itself either presumptively or otherwise any indication of negligence on the part of anybody. Each incident must be appraised from its own peculiar facts. A landlord is not an insurer nor is he bound to protect children at his peril. His conduct is to be weighed on the theory that he will not neglect a condition which the common experience of man teaches is dangerous with injury therefrom reasonably foreseeable and conversely, he is not required to worry his head over events that are only barely possible and not reasonably foreseeable. He can be, and sometimes is, exonerated as a matter of law. Kuhn v. Goedde, 26 Ill App2d 123, 167 NE2d 805; Rogers v. Sins, 349 Ill App 353, 110 NE2d 643; Gasquoine v. Bornstein, 10 Ill App2d 423, 135 NE2d 121. We think the facts as viewed most favorably for the plaintiff present, not a question of law for the court at this point, but issues of fact for the determination of the jury.

Defendant disclaims liability for the further reason that the minor child, being a member of the family, stands in the shoes of his father and is owed no greater duty than that owed the father. This is, we think, a nonsequitur. No case so holding is cited. No case to the contrary is cited. A 15-month-old child does not of his own volition establish his status as that of a trespasser, visitor, licensee, invitee, or lessee. He is, at that age, wholly uninformed as to his rights, wholly unconcerned as to his status in the world, wholly indifferent to the hazards of everyday living and frequently contemptuous of the convenience, wishes and rights of others. The law recognizes his incapacity for negligent conduct and protects him from it. The things that may interest, allure, entice or attract him are legion. The law conceived the doctrine of attractive nuisance to change his status from that of trespasser to that of invitee so that he might recover for the negligent conduct of others and not be required to show a willful or intentional wrong. The cases cited herein are abundantly clear that children of the neighbors would have been protected if the landlord was aware that they frequented the property and danger to them was reasonably foreseeable. We have seen from Kahn that it is not the status of the creator of the dangerous instrumentality as lessor, lessee, owner, or possessor or one in control that determines the liability to a small child, but, irrespective of status, the test is whether danger to a child or children is reasonably foreseeable by the creator of such instrumentality. If status is of no import to the creator, it seems to us that the status of an injured minor is equally not controlling. We do not repudiate the doctrines advocated by the defendant when confined to their proper pigeonholes in landlord-tenant relationships. In our judgment, Kahn effectively insulates a 15-month-old child from their applicability. Our .legislature has declared it to be contrary to the public policy of our State to permit a landlord to contract away his liability for the negligence of himself, his agents, servants, or employees in the operation or maintenance of the demised property. Ill Rev Stats 1963, c 80, § 15a. In the face of this announced policy, it seems to us a bit of an absurdity to deny recovery to a minor solely because he is the son of a tenant when all other small children on the premises may lawfully recover. It seems to us that the test of foreseeability is as potent in one instance as it is in the other.

Plaintiff sought recovery for two types of damage. One was based on permanent injury and pain and suffering to the minor. It is clear that contributory negligence of the parents, if any, cannot be imputed to the minor for injuries directly sustained by such minor. Lovas v. Independent Breweries Co., 199 Ill App 60; Nudd v. Matsoukas, 6 Ill App2d 504, 128 NE2d 609.

Plaintiff also sought recovery as assignee of medical and hospital bills incurred and paid by the father and loss of wages sustained by the mother while at home caring for the child. The complaint alleged an assignment by the parents to the minor and disclaimed any interest in any recovery for such items. Such an assignment is apparently not void. ILP, Assignments, § 15; Higgins v. Byrnes, 274 Ill App 440. Plaintiff’s right to recovery of these items is, nevertheless, circumscribed and limited by the provisions of CPA 22, Ill Rev Stats 1963, c 110, § 22, which reads, in part, as follows: Such “action is subject to any defense or set-off existing before notice of the assignment.” It would thus appear that the assignment of these items to the minor does not serve to bar such defenses as may have been available against the parents in an original suit brought by them for recovery of these items.

The judgment of the trial court is reversed and the cause remanded to that court for further proceedings in accordance with the views herein expressed.

Reversed and remanded.

TRAPP, P. J. and CRAVEN, J., concur.


author: MR. PRESIDING JUSTICE ABRAHAMSON

text:
    People of the State of Illinois, Appellant, v. Charles Faciano & Marvin Davies, Appellees.
    Gen. No. 65-58.
    Second District.
    January 13,1966.

      William Y. Hopf, State’s Attorney, and Deward Van de Houten, Jr., Assistant State’s Attorney, both of Wheaton, for appellant.
    Guerine & Guerine, of Melrose Park, for appellee.
   MR. PRESIDING JUSTICE ABRAHAMSON

delivered the opinion of the court.

This is an appeal from an order of the Circuit Court of DuPage County in which the court granted a motion to quash the indictment on the grounds that it was materially defective in that it was signed by the State’s Attorney of DuPage County contrary to the applicable provisions of the Criminal Code, ch 38, section 111-3, subparagraph (b), Ill Rev Stats, and it was not signed by the foreman of the Grand Jury. The indictment was filed January 11, 1965. At the bottom of the first page the State’s Attorney of DuPage County signed his name. On the reverse side of the indictment under the typed statement “a true bill,” the foreman of the grand jury signed his name.

Ch 38, section 111-3, subparagraph (b), Ill Rev Stats, provides:

“An indictment shall be signed by the foreman of the Grand Jury and an information shall be signed by the State’s Attorney and sworn to by him or another. A complaint shall be sworn to and signed by the complainant.”

Defendants contend that this enactment requires the foreman of the Grand Jury to sign at the conclusion of the charging portion of the indictment, and in addition thereto, requires him to endorse the indictment as a true bill, pursuant to ch 78, section 17, Ill Rev Stats. Further, that the signature appearing under the words “a true bill” on the reverse side of the document is not sufficient to comply with ch 38, section 111-3, sub-paragraph (b), supra.

It appears to us that the provisions of Section 111-3, subparagraph (b), were intended merely to designate the various persons authorized and required to execute an indictment, information and complaint. Defendants seek to distinguish and differentiate the definition of the word “sign” as indicated in section 111-3, subparagraph (b), and the word “endorse” as indicated in ch 78, section 17. We cannot agree with their contention. It appears to us that the provisions of section 111-3, sub-paragraph (b) were intended by the Legislature merely to designate the various persons authorized and required to execute an indictment, information and complaint. We do not interpret this section as placing an additional burden on the foreman of the Grand Jury to sign the indictment and also to endorse on the reverse side thereof “a true bill.”

Although the State’s Attorney’s signature appears on the face of the indictment we assume this is merely a certification by him that compliance was had with section 112-4, subparagraph (c) wherein it is required that the State’s Attorney, or his office, shall prepare the bill of indictment charging a person with an offense. In People ex rel. Merril v. Hazard, 361 Ill 60, 196 NE 827, a habeas corpus proceeding, the foreman of the Grand Jury did not sign the indictment. The court considered the case of Nomaque v. People, 1 Ill 145, wherein the Supreme Court held that it was fatal to the indictment when the foreman of the Grand Jury did not sign the indictment, and then said:

“We are of the opinion that the signature of the foreman of the grand jury is required only as a matter of direction to the clerk and for the information of the court; that its presence or absence does not materially affect any substantial right of the defendant, and that it neither assures to him nor prevents him from having a fair trial. Our holding to the contrary in Nomaque v. People, supra, is expressly overruled.”

In construing the provisions of the new Code, reference to the comments of the committee which drafted it, following section 111-3 is instructive. The committee comments, in part, are as follows:

“(a) The charge must tell the accused the nature and cause of the accusation against him (Ill Const art II, Sec 9).”
“The main requirement today is simplicity in order that the accused will understand the charge against him.”

We are of the opinion that in accordance with the views herein expressed that an indictment endorsed “a true bill” upon which the signature of the foreman of the grand jury appears is sufficient, and meets the requirements of the statutes and the Criminal Code.

The judgment of the Circuit Court is reversed and the case is remanded.

Reversed and remanded.

DAVIS and MORAN, JJ., concur.


author: MELVIN F. ABRAHAMSON,

text:
    Donald A. Busch, Plaintiff-Appellee, v. United States Fire Insurance Company, a Corporation, Defendant-Appellant.
    Gen. No. 65-67.
    Second District.
    January 13, 1966.

      Thomas and Kostantacos, of Rockford, for appellant.
    Pedderson, Menzimer, Conde & Stoner, of Rockford, for appellee.
   MELVIN F. ABRAHAMSON,

presiding.

This is an appeal from the judgment of the Circuit Court of Winnebago County wherein the court, after a bench trial, found in favor of plaintiff and against defendant for the sum of $1,000. The action was brought by the plaintiff on a third party beneficiary theory to recover the proceeds provided in a certain policy of insurance issued by defendant for medical payments for injuries allegedly arising upon the insured’s premises. The defendant had issued prior to the occurrence out of which this action arose, a homeowner’s insurance policy upon the residence of Dr. Chester Roe, located at 2104 Birch-wood Street, Rockford, Illinois, which policy provided in part as follows:

“2. COVERAGE F—Medical Payments: To pay all reasonable expenses incurred within one year from the date of accident for necessary medical, surgical, X-ray and dental services, including prosthetic devices, and necessary ambulance, hospital, professional nursing and funeral services, to or for each person who sustains bodily injury caused by accident, (a) while on the premises with the permission of an insured, or (b) while elsewhere if such bodily injury, (1) arises out of the premises or a condition of the ways immediately adjoining, (2) is caused by the activities of an insured, (3) is caused by the activities of or is sustained by a residence employee and arises out of and in the course of his employment by an insured, or (4) is caused by an animal owned by or in the care of an insured.”

The case was tried before the court without a jury.

On November 28th, 1961, the plaintiff, Donald A. Busch, lived with his family including his son, Mitchell, who was then 4 years old, at 1631 Sprucewood Drive, Rockford, Illinois. The Busch home was about 100 feet from the Roe residence. After lunch on said date, Dr. Chester Roe burned some rubbish, including several magazines, in an incinerator at the rear of his premises. He started the fire about one o’clock and left his home to return to his office at approximately one thirty o’clock. There were no flames about the incinerator when he left to return to his office and there was no fire outside the incinerator at that time. He does not remember whether he put the top on the incinerator, but believes he did so because the incinerator was a new one and the lid could be placed on it easily.

On the day in question, Dr. Roe’s mother-in-law, Mrs. Kate Csaszar, arrived at the insured premises at about 12:45 p. m. to baby-sit with her grandchildren while their mother and father were absent. About 3:25 p. m. while the two older Roe children were in school and the younger child was taking a nap, Mrs. Csaszar, who was in the kitchen at the rear of the home, heard a scream. It came from the front of the Roe property. She rushed to the front of the house and found Mitchell Busch, the son of the plaintiff, standing next to the front garage door at the southwest corner of the Roe home, with the clothing about his left leg ablaze. She extinguished the fire. The point on the insured’s property where Mitchell was found was in a line with the incinerator and his home. A stipulation was entered into that Mitchell was burned and his medical expenses were in excess of $1,000.

It is defendant’s contention that the evidence failed to show that the injuries suffered by plaintiff’s son were sustained upon the insured’s premises and that even if the evidence did show such fact, it was not proven that the child was on the premises with the permission of the named insureds and, therefore, the insurance coverage does not apply. As the claim herein is solely under the medical pay provisions of the policy, there is no question of negligence involved. The sole question is whether there was sufficient evidence to sustain the trial judge’s conclusions that the injury occurred on the insured’s premises and that the injured child comes within the coverage extended by the policy.

Defendant cites many cases discussing the questions of the burden of proof and the burden of persuasion that plaintiff must meet. The facts testified to by the witnesses are undisputed. There was a fire in the doctor’s incinerator. The boy was found between 80 and 100 feet from the incinerator on the doctor’s property in a line with his home. When discovered, his clothing was afire.

Defendant in his brief states:

“The only legal authority we have been able to find upon the term ‘permission’ and its meaning appears in 70 CJS 564. There it is stated that the term ‘permission’ implies consent, leave or license but gives no right.”

From this point defendant then argues that the permission must have been express and given at the time the boy came upon the property. With this we do not agree. We conclude that permission to be upon the property need not be express but may be implied from all the facts and circumstances. When the insured was asked whether Mitchell and other children had permission to play on his property, he answered:

“That is sort of a hard one to answer. I suppose they did, but Mitchell and one or two others were the only ones who seemed to be around.”

We believe that this plus the balance of the insured’s testimony as to the frequency with which Mitchell came upon his property to play with his children was more than enough to sustain the trial judge’s finding.

There is no direct evidence as to what caused the boy’s clothing to catch fire and where he was when it did. The evidence is circumstantial. Circumstantial evidence, however, has long been accepted as sufficient to support either a jury’s verdict or the finding of a judge. As was said in the case of Commerce Union Bank v. Midland Nat. Ins. Co., 53 Ill App2d 229, 241, and 242, 202 NE2d 688:

“(8) Under the evidence in the record before us, the question presented for determination was whether or not Lionel Burkett intentionally caused the fire which did the damage to the tractor. This question was one of fact and not of law to be determined by the trial judge. Stein v. Girard Ins. Co. of Philadelphia, Pa., supra.
“There were no eyewitnesses to the occurrence here in question and all of the evidence adduced at the trial of the case to prove that Lionel Burkett started the fire that damaged the tractor was circumstantial. (9) The trial judge saw and heard the witnesses, weighed the evidence, and found that defendants failed to prove their special affirmative defense of arson and we cannot say that this finding of the trial judge is contrary to the manifest weight of the evidence.”

Any fact may be proved by circumstantial evidence as well as by direct evidence. A greater or lesser possibility leading on the whole to a satisfactory conclusion is all that is required to establish a controverted fact by circumstantial evidence. Jacobs v. Illinois Nat. Bank & Trust Co., 345 Ill App 30, 102 NE2d 182.

We have examined the record and determined that there was sufficient evidence upon which the trial judge could base his finding and that his finding does not in any way appear to be against the manifest weight of the evidence. In such circumstances the Appellate Court should not substitute its judgment for that of the trier of the facts who heard the witnesses.

As our Supreme Court stated in Warner v. Gosnell, 8 Ill2d 24, 36, 132 NE2d 526:

“The courts of this State have many times repeated that where a chancellor receives the evidence in open court and sees the witnesses and hears them testify, his findings will not be disturbed unless palpably wrong or manifestly erroneous.”

For the reasons above stated, the judgment of the trial court is affirmed.

Judgment affirmed.

MORAN and DAVIS, JJ., concur.


author: MR. PRESIDING JUSTICE SULLIVAN

text:
    People of the State of Illinois, Defendant in Error, v. James Dorsey, Plaintiff in Error.
    Gen. No. 50,108.
    First District, Third Division.
    January 13, 1966.
    Rehearing denied February 3, 1966.
    Donald W. Carlin, of Chicago, for plaintiff in error.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and John Gannon, Assistant State’s Attorneys, of counsel), for defendant in error.
   MR. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court.

James Dorsey and James Wallace were convicted by a jury of the crime of attempt to commit robbery (111 Rev Stats 1961, c 38, § 8-4) and were sentenced by the trial court to the Illinois State Penitentiary for a term of from twelve to fourteen years. The theory of the defendant Dorsey on appeal is that the trial court erred in refusing to admit certain hospital records in evidence, and that such prejudicial error demands a reversal of his conviction.

On November 14, 1962, a Task Force Undercover Unit of the Chicago Police Department was operating in the area of 43rd and Forrestville. Officer Kenneth W. Bartels, a member of the unit, posing as a decoy, was under the surveillance of other members of the unit as he walked down the street. At approximately 10:30 p. m. a scuffle occurred between Officer Bartels, the defendant, and Wallace, during which scuffle Officer Bartels was struck on the head with a bottle. Both the defendant and Wallace were arrested by other members of the Undercover Unit.

The testimony of the defendant and Wallace differs materially from that of the police with regard to the circumstances surrounding the scuffle and arrest. Wallace testified that he was walking down the street when he saw a drunk approaching. He mistook Officer Bartels for a friend of his and took Bartels by the arm in order to assist him. Wallace was immediately thrown down by Bartels, and when he fought back, he struck Bartels on the head with a bottle.

The defendant testified that he saw Officer Bartels and Wallace fighting and when he approached the two to tell them to stop, he was knocked unconscious from a blow on the back of his head. The defendant allegedly suffered a severe cut on his head from the blow. When he regained consciousness he testified that he was kicked and beaten and then thrown into a patrol wagon.

The defendant stated that he was then taken to a police station where he was again kicked and beaten and hit on the head with a blackjack. He observed Wallace being given the same treatment. The defendant testified that he and Wallace were then taken to the Bridewell hospital where defendant’s alleged cut on the scalp was stitched up.

The evidence adduced by the State was as follows: Police Officer Bartels stated that two men approached him from the rear as he walked down the street, and as the defendant spun him around, he received a sharp blow on the back of the head. Bartels fell into a doorway and pulled the defendant down on top of him. As Wallace kicked him in the back Wallace said to the defendant, “Get his wallet, get his wallet.” The other members of the undercover unit then arrived on the scene and apprehended both the defendant and Wallace. One police officer testified that he struck the defendant on the side of the face during the arrest.

The two men were taken to a police station and during an interrogation the defendant stated, “We attempted to rob the man.” The two men were then taken to a hospital.

At the trial all of the police officers denied striking the defendant on the back of the head, and all denied beating him.

Elizabeth Dolan, a nurse employed at the Cook County Jail since January 1, 1963, approximately six weeks after the arrest of the defendant, was called to testify on behalf of the defendant. She brought with her certain medical records from the Cook County Jail hospital. She testified that she was capable of reading them and had occasion to make notations thereon, but no entries had been made by her at the time of defendant’s arrest or at the time defendant was at the hospital. The court upon objection, refused to admit the hospital records in evidence because of lack of a proper foundation for their introduction.

Jean McKay, the medical record librarian at the Cermak Memorial hospital, a subdivision of the House of Correction, was also called to testify for the defendant. She stated that she kept all hospital records under her supervision and control. The court refused to admit the records.

The defendant contends on appeal that the trial court erred when it refused to admit the hospital records in evidence. He contends that these records would: (a) tend to substantiate his story that he was beaten and tortured by the police; (b) cast doubt upon the credibility of the police officers who denied striking and otherwise mistreating him, and (c) brand as involuntary certain incriminating statements allegedly made by him while in police custody.

It is unnecessary to determine the question of whether the trial court properly excluded the hospital records, or to determine whether or not a proper foundation had been laid for their admittance. For the following reason, the decision of the trial court must be affirmed. At the trial, after the court had sustained the objections to the admission of the hospital records, the defendant made no offer of proof as to their contents. The hospital records have not been made a part of the record on appeal. There is nothing before us which discloses what the hospital records contained.

In order for alleged errors in the exclusion of evidence to be considered on review, the record must show the evidence, exclusion thereof, objections to such exclusion, and other facts or matters necessary to enable the reviewing court to decide the questions raised. (ILP Vol 2, Appeal and Error, § 530.) In Grier v. Barkley, 182 Ill App 541, the appellant alleged error by the court in refusing to admit in evidence a certain inventory of an estate. The appellate court said that since it failed to find the inventory in the record, or any statement as to its contents, it was unable to determine whether or not by reason of anything therein stated it was competent or material evidence. Cf., Green v. O’Day, 217 Ill App 103; Township of Lovington v. Adkins, 232 Ill 510, 83 NE 1043; People v. New York Cent. R. Co., 388 Ill 382, 58 NE2d 51.

Similarly in the instant case, since the court record does not contain the hospital records, and there is nothing in the record that reveals their contents, we are unable to determine what the hospital records would disclose that would be material to this case.

Affirmed.

SCHWARTZ and DEMPSEY, JJ., concur.