author: MR. JUSTICE DEMPSEY

text:
    Charles Vykruta, Plaintiff-Appellee, v. Thomas Hoist Company, Inc., a Corporation, Defendant and Third Party Plaintiff-Appellant, v. Edward Duff and Richard H. Boldt, Jr., d/b/a J & E Duff, Third Party Defendants-Appellees.
    Gen. No. 50,459.
    First District, Third Division.
    September 29, 1966.

      Vogel & Vogel, of Chicago (David F. Holland, of counsel), for third party plaintiff appellant.
    William N. Anthony and Joseph Koucky, of Chicago (Leonard M. Ring, of counsel), for plaintiff-appellee.
    Harry I. Parsons, of Chicago (Norton Wasserman and Orner & Wasserman, of counsel), for third party defendants-appellees.
   MR. JUSTICE DEMPSEY

delivered the opinion of the court.

The plaintiff, Charles Vykruta, was injured while working as a bricklayer for J & E Duff, mason contractors, who were engaged in building an addition to a gymnasium. The Duff Company had rented a hoist from the defendant, Thomas Hoist Company, to lift bricks, mortar and other material from the ground floor to the upper parts of the building. The plaintiff rode the hoist and was injured. He brought this action against the Thomas company to recover damages for his injuries allegedly occasioned by the defendant’s violation of the Structural Work Act. (Ill Rev Stats, c 48, pars 60-69 (1955).)

Thomas filed a third party complaint for indemnity from Duff asserting that Thomas was not guilty of active negligence or wilful misconduct and that if Vykruta was entitled to recover from Thomas it was a result of the misconduct of Duff. A jury returned a verdict for Vykruta and judgment was entered thereon. The trial court directed a verdict for Duff, the third party defendant, and entered judgment. Thomas appeals from both judgments contending that it did not have charge of the work within the meaning of the Act, that the jury was improperly instructed and that the court erred in directing a verdict for Duff.

The hoist was designed and manufactured, and installed on the job site by Thomas. When work on the lower part of the building had been completed Thomas returned to the site and extended the hoist to its full height. It was known as a “laddermatic” hoist because it resembled an extension ladder and could be lengthened or shortened to reach different heights. It had a platform, large enough to carry a single wheelbarrow, upon which materials were placed. The platform was elevated by a steel cable of 10,000 pounds tensile strength which was attached to the platform and ran from the platform up the front of the ladder to a pulley at the top. The cable, which was powered by a gasoline engine, passed through the pulley and then ran down to a drum around which it wound as the platform rose. The cable and the pulley were not enclosed and there was no safety rail around the platform. The descent of the platform was controlled by a centrifugal brake. When the platform was lowered it would first descend of its own weight until it reached a speed which caused the brake to restrain it.

The Duff company had six or seven bricklayers and four laborers on the job. The laborers ran the hoist. One laborer loaded materials onto the platform at the ground level and sent them up to the level where the bricklayers worked; there another laborer removed the materials from the platform and took them to the bricklayers. On the morning of the occurrence several bricklayers came to work at the same time as Vykruta. They placed their tools on the platform and climbed ladders to the third floor where they were working but Vykruta, after putting his tools on the platform, stepped on it himself and rode it upward.

His fellow-employees testified that he held onto the cable with his right hand, that this hand was placed high on the cable, and that as the platform neared its stopping place his right hand became caught in the pulley. As he jerked his hand free the cable came off of the pulley, struck a crossbar beneath it and snapped; the platform dropped and he fell about ten feet. Vykruta testified that he did not hold onto the cable, that he stood on the platform with his hands at his side, that when the platform reached the upper level he started to remove his tools, that he had one foot on the platform and the other on the upper floor of the building, that the platform began to slip downward and that in reaching for a handhold to save himself from falling he struck his right hand between the cable and the pulley. After falling to the next floor he managed to grab another cable on the hoist with his left hand and arrested his fall. He was right-handed and three fingers on this hand were badly injured.

The hoist was inspected after the accident. Except for the severed cable and some damage to the platform caused by the fall, the hoist was in excellent condition. The cable itself was not worn and there were no defects or evidence of malfunction in the pulley, motor, drum, clutch, brakes, ladder or control system. An expert who examined the hoist gave his opinion, in answer to a hypothetical question, that the cable was peeled from the pulley causing the cable and platform to drop and that the cable was cut as a result of being pulled over the crossbar.

Vykruta testified on direct examination that he had ridden the hoist before; however on cross-examination he said this was the first time he rode it. His attorney reverted to the subject on redirect examination and Vykruta again said that the first time he rode on the hoist was the day he was injured. He testified that prior to this day he had seen some of the workmen riding on the hoist and that he had seen men riding on hoists on other jobs. He also said that he had never been told not to ride the hoist and that he did not see any warning signs posted around it. In this he was contradicted by a laborer who operated the hoist. This witness testified that not only the foreman but some of the workers warned Vykruta, who had started to work on this job about a month and a half earlier, not to ride the hoist. The witness further testified that there was a “NO RIDERS” sign on the platform.

One more pertinent evidentiary topic must be mentioned: Vykruta’s testimony indicated that Thomas repaired the hoist. His exact words were: “. . . there was a couple of times they were fixing that hoist all the time — the company that they rented it from.” However, his testimony on cross-examination conflicted with his direct testimony:

“Something went wrong with the pulley. . . . [T]hey called that mechanic up there. I don’t know who the mechanic worked for. I don’t know whether he worked for Thomas Hoist. . . . They had trouble with the machine. They had to fix it about three times. ... I don’t know who it was who was fixing it but it could have been Mr. Duff. I don’t know if he hired somebody to fix it. . . .”

Vykruta’s complaint was in two counts. The second count was for common-law negligence and alleged that the defendant negligently manufactured, assembled, tested and maintained the hoist. At the conclusion of the plaintiff’s case the defendant’s motion for a directed verdict was allowed as to count II. The record does not disclose the trial court’s reason for granting the motion but the court must have been of the opinion that the plaintiff either did not make out a prima facie case or was guilty of contributory negligence as a matter of law. There has been no appeal from the court’s order as to count II. Whether Vykruta was guilty of contributory negligence is immaterial because no such defense is available to a defendant in an action brought under the Structural Work Act. Schultz v. Henry Ericsson Co., 264 Ill 156, 106 NE 236 (1914); Brackett v. Osborne, 44 Ill App2d 441, 195 NE2d 8 (1963).

We are concerned, therefore, with count I only and the principal question is whether Thomas is subject to liability under the Structural Work Act. For the purposes of the present case the pertinent provisions of the Act are as follows:

“§ 1. That all scaffolds, hoists . . . erected or constructed by any . . . corporation . . . for use in the . . . alteration ... of any . . . building . . . shall be erected and constructed, in a safe, suitable and proper manner, and shall be so erected and constructed, placed and operated as to give proper and adequate protection to the life and limb of any person or persons employed or engaged thereon,
“§ 9. Any owner, contractor, sub-contractor, foreman or other person having charge of the erection, construction, repairing, alteration ... of any building . . . within the provisions of this act, shall comply with all the terms thereof, . . .
“For any injury to person . . . occasioned by any wilful violations of this act, or wilful failure to comply with any of its provisions, a right of action shall accrue to the party injured, . . .”

The defendant’s primary contention is that there was a total absence of proof that it violated the above provisions and therefore the court should have granted its motion for a directed verdict or entered a judgment for it notwithstanding the verdict. It argues that it did not have charge of the construction of the gymnasium or of any phase of the construction, that the hoist was rented, that the hoist was for materials and not for human beings and was not a hoist or scaffold within the meaning of the Act. The plaintiff replies that the Act is a comprehensive safety statute intended to compel all contractors connected with the work to provide safe hoists in order to prevent injury to workmen in a hazardous occupation. He argues that the Act should be interpreted liberally and applied broadly and that it was intended to cover a supplier of equipment upon which workmen are employed or engaged. After analyzing the plaintiff’s complete thesis we believe it can be divided into three major propositions and that a fair synopsis of each one is as follows:

I 1. A supplier of a hoist or scaffold comes under the Act;
2. If the hoist or scaffold is defective the supplier can be held liable if he knew or should have known of the defect.
H 1. A hoist or scaffold used in the construction of a building is part of the construction;
2. A supplier of a hoist or scaffold is, therefore, in charge of a phase of the construction;
3. If the hoist or scaffold is defective the supplier is liable if he knew or should have known of the defect.
HI 1. The hoist supplied by Thomas was used in the construction of the gymnasium;
2. Thomas retained control of the hoist, by maintaining it and extending it during the course of construction;
3. Thomas, therefore, was in charge of a phase of the construction;
4. The hoist was defective;
5. Thomas as the designer and manufacturer of the hoist knew it was defective or reasonably should have known that it was;
6. Thomas, therefore, committed a knowing violation of the Act.

The Structural Work Act has many safety provisions but only one section (section 8) provides a penalty of its own for the violation of the duty imposed by that section. The violation of section 1 and all other sections is controlled by section 9 which imposes criminal penalties upon those who come under the Act and do not comply with it, and imposes a civil liability upon those who are subject to the Act and who wilfully violate it or wilfully fail to comply with its provisions. This civil liability, unless otherwise circumscribed by a particular section, is imposed upon those having charge of the construction. The phrase “having charge of” has been the subject of extended judicial exposition. An examination of two cases, Gannon v. Chicago, M., St. P. & P. Ry. Co., 22 Ill2d 305, 175 NE2d 785 (1961) and Larson v. Commonwealth Edison Co., 33 Ill2d 316, 211 NE 2d 247 (1965), will be helpful in interpreting the language of the Act and its application to the case at bar.

The Gannon case involved as plaintiff an employee of an independent contractor who erected a, defective scaffold. The suit was against the defendant owner who had engaged the contractor to construct a dock on its premises. The court held that liability could be imposed only if the defendant was in charge of the work. In noting that liability attached only for wilful violations, the court stated that, “Wilful violations means knowing violations, and in the nature of things they can be perpetrated only by persons directly connected with the operations, and not by virtue of mere ownership of the premises.” It also stated that “before civil liability may be imposed upon the defendant owner under section 9 of the Act, it must appear that he had charge of the construction operations involving the violation.”

In Larson the plaintiff, an employee of Paschen, an independent contractor, was injured in a fall from a scaffold erected by his employer. The defendant Commonwealth Edison, the owner of the premises, had entered into contracts with various contractors; most of the contracts, designs and specifications, including two contracts with the plaintiff’s employer, were prepared by defendant Sargent & Lundy, consulting engineers. The trial court instructed the jury that Edison could not be held liable unless it “had charge of the work by retaining control and supervision of such work being performed by Paschen Contractors, Inc.,” and directed a verdict for Sargent & Lundy. The Appellate Court affirmed the judgments for the defendants, stating that “the terms ‘supervision and control’ are used interchangeably with ‘in charge of’. . . .” 48 Ill App2d 349, 199 NE2d 265 (1964). On appeal to the Supreme Court, the judgments were reversed. The court held that the phrase “having charge of” is a generic term of broad import, and though it may include supervision and control it is not confined to it. That is, the court denied that “supervision and control” is the relationship between a defendant and the construction project which must be shown before the defendant can be held liable. It stated that “the thrust of the statute is not confined to those who perform, or supervise, or control, or who retain the right to supervise and control, the actual work from which the injury arises. . . .” The court also stated that, “It may be conceded that Sargent, like an owner, must have some direct connection with the construction and alteration operations before it can be deemed in charge of the work, and thus subject to duty and liability under the act.”

These cases clarify the standards by which the claim of the plaintiff that Thomas is subject to liability under the Act is to be tested. To be liable a defendant must be in charge of the work; he must have some direct connection with the construction before he can be deemed in charge of the work; he can perpetrate a knowing violation only if he is directly connected with the operation.

We do not agree with the first proposition of the plaintiff’s thesis that a supplier of a hoist or scaffold comes under the Act and that the supplier can be held liable if the hoist or scaffold is defective. As we have pointed out, liability is governed by section 9 of the Act. The broad coverage advocated by the plaintiff ignores the limited application of section 9 to those having charge of the construction. The mere furnishing of equipment does not render one in charge of the construction or that part of the construction in which the equipment is used. If the equipment proves to be defective an injured party may possibly have a common-law action against the supplier of the equipment but he has no right to recover under the Act. The trial court adopted the plaintiff’s proposition and instructed the jury accordingly. It refused the defendant’s instructions which stated that the plaintiff had the burden of proving that the defendant was a person having charge of the construction of the building in question and gave a peremptory instruction at the request of the plaintiff which failed to include the statutory requirement of “having charge” under either the plaintiff’s theory of having charge of the hoist or the defendant’s theory of having charge of the construction. An instruction which is peremptory in character and directs a verdict for either party must contain all the elements necessary to sustain such a verdict. Gannon v. Chicago, M., St. P. & P. Ry. Co., 25 Ill App2d 272, 167 NE2d 5 (1960). The giving of this instruction was error and would require the reversal of the judgment apart from the determination of the other issues in the case.

The plaintiff’s second proposition is that a hoist or scaffold used in the construction of a building is part of the construction and that a supplier of such equipment is, therefore, in charge of this phase of the construction. Although a hoist or scaffold which is used in the construction of a building can be regarded as part of the construction, the supplier of such equipment is not ipso facto in charge of the work for which the equipment is used. Were it otherwise, similar reasoning would dictate that a contractor who supplied a component of the hoist or scaffold would be in charge of the work and so subject to liability under the Act. Such an interpretation of the statute places too much strain on its wording. The construction given it by the Gannon and Larson cases is that a direct connection with the work is necessary before liability can be predicated on the statute. Again, the trial court gave an instruction which embodied the plaintiff’s proposition. After quoting section 1 of the Act the instruction went on to say that, “Such statute further provided that any person, firm or corporation having charge of the erection, construction or placement of such hoist shall comply with the terms thereof.” It was error to give this instruction.

The third proposition in the plaintiff’s thesis is that under the facts of this case Thomas was in charge of the hoist (and thus in charge of a phase of the construction) and knew or should have known that the hoist was defective. We disagree with the plaintiff in both particulars. The evidence does not establish that Thomas had charge of the hoist or the requisite direct connection with the construction. The relevant evidence was this: Thomas leased the hoist to Duff, delivered and installed it on the job site. At some unspecified time Thomas extended the hoist to its full height and might have [we say “might have” because of the plaintiff’s self-contradictory testimony] returned to the site to repair the hoist. It had no employees on the job; it did not operate the hoist or have charge of its operation; it made no inspections while the hoist was in operation nor does it appear that it had the right to do so. It could not tell Duff when to use the hoist or when not to. Duff, not Thomas, furnished the hoist to the workmen; Duff, not Thomas, had charge of it; Duff’s employees, not Thomas’, ran it. If the hoist could be considered an integral part of the construction it was because of the use Duff made of it, not because Thomas delivered it and set it up. Thomas’ connection with the construction was indirect. As the Gannon and Larson cases pointed out, mere ownership of the premises is not enough to establish liability and, similarly, mere renting of the equipment and the repositioning and repairing of equipment which has ceased functioning are not enough. In both instances there must be something more; the owner or the supplier must be directly connected with the operation.

Also, there was no evidence that Thomas knew prior to the accident that the hoist was used for carrying personnel. If the plaintiff saw workmen riding on it and if he saw workmen at other jobs riding hoists there is no evidence that this was done when representatives of the defendant were present, or that this information was communicated to the defendant, or that the defendant should have known that this was being done. Thomas rented a hoist that was to be used for a specific and limited purpose. The hoist was not defective for the purpose for which it was designed and supplied. Thomas had no obligation to station guards at the hoist to prevent Duff’s employees from riding on it and it was not responsible for the misuse of its apparatus; that the plaintiff chose to ride on it rather than climb the available ladders did not transform it from a materials to a passenger hoist. Until such time as Thomas knew or should have known that the hoist was being used by workmen it had no duty to redesign the hoist. It is to no effect that Thomas knew the cable and pulley were exposed, for this condition was not dangerous to human beings if the hoist was used for its proper purpose — the lifting of materials. Even if a contractor is in charge of the work the evidence must show that on occasions prior to the injury the plaintiff or other workers had used as a scaffold or hoist an object not designed for such use and that this practice or usage was or reasonably should have been known to the defendant. Gundich v. Emerson-Comstock Co., 21 Ill2d 117, 171 NE2d 60 (1960); Oldham v. Kubinski, 37 Ill App2d 65, 185 NE2d 270 (1962); Bounougias v. Republic Steel Corp., 277 F2d 726 (7th Cir 1960).

Thomas not having been in charge of the hoist and not having had any direct connection with the construction cannot be held to have committed a wilful violation of the Structural Work Act, and the judgment for the plaintiff must be reversed.

The decision in this appeal makes unnecessary a decision in the third party suit.

The judgment is reversed and the cause remanded with directions to enter judgment for the defendant.

Reversed and remanded with directions.

SULLIVAN, P. J. and SCHWARTZ, J., concur.


source: Caselaw Access Project

author: MR. JUSTICE SCHWARTZ

license: Public Domain

text:
    Mary J. Welsh, Plaintiff-Appellant, v. Mrs. Phillip Centa and Wilbert Manzke, Defendants-Appellees.
    Gen. No. 50,655.
    First District, Third Division.
    September 29, 1966.

      Unger & Unger and Julian A. Levey, of Chicago, for appellant.
    Richard C. Bleloch and Robert A. Wiacek, of Chicago, for appellee, Mrs. Phillip Centa.
    Jay A. Baier and Pretzel, Stouffer, Nolan & Rooney, of Chicago (Joseph B. Lederleitner, of counsel), for appellee, Wilbert Manzke.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

This is an appeal from a summary judgment entered in favor of the defendants in a personal injury suit growing out of a rear-end collision on June 3, 1962, when the automobile the plaintiff was driving was hit in the rear by a vehicle driven by defendant Mrs. Phillip Centa. A third vehicle driven by defendant Wilbert Manzke had driven into the rear of the Centa ear and forced it against plaintiff’s car. Plaintiff negotiated a settlement and on June 20, 1962, seventeen days after the accident, she and her husband Richard executed a release of defendant Manzke. Plaintiff received the sum of $175, and in addition thereto the sum of $25 was paid for the release of any injury to her child who was in the car at the time of the accident, but with respect to whom no claim was made. That the release, if effective at all, discharges both defendants is not questioned. The principal issue in this case is whether the trial judge, sitting as a chancellor, properly set aside the release on motion for summary judgment.

Plaintiff in her complaint made no reference to a release. The answer of defendant Manzke denied the charges of negligence and pleaded the affirmative defense of release. Mrs. Centa, by her answer, likewise denied the allegations of negligence and alleged that her vehicle while stationary was forced into contact with plaintiff’s car by the impact of defendant Manzke’s car. She also pleaded the release as an affirmative defense.

In reply to the answers of the defendants, plaintiff admitted the execution of the release and admitted endorsing the draft in the sum of $200 paid to her for herself and her child. She alleged in her amended reply that the release did not constitute a release in law “inasmuch as the [sic] represent a mistake of fact, as between the parties.” She added a paragraph, arguendo, that none of the parties to the cause intended to release a claim for the serious, substantial and permanent injuries of which the plaintiff now complains, “but rather [that it] indicated only a settlement of a property damage claim, a minor, temporary and inconsequential injury claim and the inconvenience attendant thereto.”

Plaintiff then filed an amended complaint and finally a second amended complaint in two counts on January 8, 1965. In Count I she alleged that she was unaware of the nature and extent of her injuries and that defendant’s agent who had procured her release was also unaware thereof; that both were mutually mistaken in believing that plaintiff’s injuries were slight and inconsequential; and that subsequently it developed that the injuries sustained were of a serious and permanent nature and that had both parties been aware of the true nature of her condition, the release would not have been executed. Plaintiff tendered back the $175 paid to her and prayed that the release be declared null and void. The second count charged negligence against both defendants and that plaintiff had suffered internal and external disorders. Defendant Centa denied the averments of Count I with respect to the release, and as to Count II averred that her car had been pushed by defendant Manzke’s car into contact with plaintiff’s automobile. Manzke likewise denied the averments with respect to the release and denied the charge of negligence on his part.

Motions for summary judgment were made by Centa and Manzke. They were supported by affidavits and by a discovery deposition of plaintiff. In her affidavit Mrs. Centa not only relied on the release, but restated her defense with respect to her car being pushed by defendant Manzke’s car into plaintiff’s car. In her deposition, plaintiff testified that the accident occurred in Tinley Park, Illinois, on a Sunday morning; that she was stopped about midblock in a line of heavy Sunday morning church traffic and that she observed the Centa car in her rear view mirror while the latter pulled up behind her and stopped. Her verbatim testimony on this vital point is as follows:

“Q. And did you see a car come up behind you and stop behind you?
“A. Yes. ((
“Q. And did you see that in your rear view mirror?
“A. Yes, I knew there was a car in back of me.
“Q. Did you see it come up and stop behind you?
“A. I am pretty sure she was stopped.”

When questioned with regard to her remarks immediately following the collision, plaintiff replied, “Oh, I do remember saying that evidently that man Manzke, or whoever it was, must have hit both of us.” Plaintiff’s slight qualification of her statement does not reflect upon the verity of her original testimony.

After the accident plaintiff suffered discomfort to her neck, and a day or so following the accident went to her family doctor for a checkup. Between the date of the accident and the signing of the release, plaintiff visited her doctor several times, complaining of pain in the neck and chest. He took X-rays of her neck and after several visits assured her that aside from the discomfort there was nothing wrong. Plaintiff testified that an insurance adjuster representing defendant Manzke’s insurance carrier called on her to discuss settlement. She told him she did not wish to settle until she was satisfied that she was all right. After her series of visits to her doctor, she called the adjuster and said she was ready to discuss settlement. He came to her home again, where the release was executed on June 20, 1962. Five months later, in November, 1962, after experiencing severe headache pain, plaintiff again went to see her doctor and her injury was then diagnosed as a whiplash, and she was hospitalized from December 4 until about December 22, 1962. She was put in traction and following her release from the hospital she was fitted with a cervical collar which she wore until April, 1968.

In her deposition plaintiff said that two years prior to the accident here in question she had suffered a similar whiplash injury in another traffic accident and that she had settled her damage claim arising from that accident and had not brought suit.

The purpose of >a motion for summary judgment is to determine whether there is a genuine issue as to any material fact. Allen v. Meyer, 14 Ill2d 284, 152 NE2d 576; Illinois Power Co. v. City of Jacksonville, 18 Ill2d 618, 165 NE2d 300; Gliwa v. Washington Polish Loan & Bldg. Ass’n, 310 Ill App 465, 34 NE2d 736. It is apparent from the deposition of plaintiff herself that defendant Centa was in no way negligent. With respect to defendant Centa, therefore, the motion for summary judgment was properly sustained on the basis of admitted facts without regard to the validity of the release.

As to defendant Manzke, however, the sole basis upon which the summary judgment in his favor can be sustained depends upon the court’s ruling that the release was valid. This in turn depends largely on plaintiff’s deposition. Plaintiff in her abstract, consisting of 78 pages, did not undertake to give us an abstract of that testimony, but instead quoted many pages literally. Defendant Manzke filed an additional abstract of 55 pages, also quoting plaintiff’s deposition literally. Defendant Centa, evidently dissatisfied with portions of the deposition given by plaintiff, filed a supplemental abstract of some ten pages, quoting portions of the testimony.

Plaintiff argues that when it became apparent to the court that the motion for summary judgment could only be decided by the perusal of a long record with conflicting opinions as to the interpretation of the testimony, it should have decided that an issue of fact had been joined and the motion for summary judgment should have been denied. The record was indeed long. It was also cumbersome and repetitious. As we have said, it was presented to this court in three parts, totaling 143 pages, although the issue was relatively simple. The fact that there were conflicting opinions with respect to the interpretation of the testimony does not necessarily establish the existence of a genuine issue of fact. If the difference of opinion, as in the instant case, relates to the legal consequence of facts to which a witness has unequivocally testified, then the question is essentially one of law. The plaintiff herself testified to the circumstances surrounding the execution of the release.

If a party in a judicial proceeding testifies deliberately, clearly and unequivocally to a concrete fact within his peculiar knowledge, the adverse party is entitled to hold him to it as an informal judicial admission. Tennes v. Tennes, 320 Ill App 19, 50 NE2d 132; Huber Black & White Cab Co., 18 Ill App2d 186, 151 NE2d 641.

Motions for summary judgment may be supported by deposition. Allen v. Meyer, 14 I112d 284, 152 NE2d 576. Affidavits filed in support of a motion for summary judgment are a substitute for testimony taken in open court and can contain as much pertinent information as the affiant could competently testify to if he were sworn as a witness. James F. Goodwin, Inc. v. George W. Bowers Co., 24 Ill App2d 158, 164 NE2d 278.

The question as it now stands in the case before us does not involve a dispute as to events which occurred. What was said and done during the period of negotiation and at the time of the execution of the release is fully set forth in plaintiff’s deposition, and the question presented is whether those events constitute a mutual mistake of fact and a basis for setting aside the release.

Illinois follows the majority of jurisdictions in allowing a court to set aside a release executed by a tort victim when the facts indicate that the parties were mutually mistaken as to the extent of the releasor’s injuries. Clancy v. Pacenti, 15 Ill App2d 171, 145 NE2d 802; Ruggles v. Selby, 25 Ill App2d 1, 165 NE2d 733; Smith v. Broscheid, 46 Ill App2d 117, 196 NE2d 380, 71 ALR2d 77. The mistake must be mutual, and a unilateral or self-induced mistake of fact will be insufficient to void a release. Child v. Lincoln Enterprises, Inc., 51 Ill App2d 76, 200 NE2d 751; Thomas v. Hollowell, 20 Ill App2d 288, 155 NE2d 827.

The rescission or avoidance of a release is a form of equitable relief. As the court said in Ruggles v. Selby, supra, at 12:

“The trend to set aside releases of personal-injury claims in those situations where the facts, when finally known, present an unconscionable result, is due in large measure to the fact that these are matters for the chancellor in equity who is vested with that degree of discretion and flexibility necessary to the doing of justice under the circumstances of each individual case.”

Count I of plaintiff’s complaint is based on that equitable power.

The burden of proving that a release should be set aside rests with the party urging the invalidity of the document, and the evidence must be clear and convincing. Hudson v. Thies, 35 Ill App2d 189, 182 NE2d 760; Child v. Lincoln Enterprises, Inc., 51 Ill App2d 76, 200 NE2d 751. In the Child case, supra, the court said, at 82:

“The law favors compromise, and accordingly, the burden of proof is placed on the one contending that a release was secured as a result of mistake or misrepresentation or fraud and such mistake or misrepresentation or fraud must be shown by clear and convincing evidence.”

Plaintiff admitted that she had had previous experience with a whiplash injury. She was familiar with the characteristics of such injuries and testified that she would not negotiate with the defendants until she had seen her doctor and received his advice with respect to the injury. In the meantime the defendants exerted no pressure, but merely stood by. Plaintiff consulted her doctor several times and made an appointment to settle her claim only after she had been assured that she had not suffered serious injury.

When the circumstances surrounding a settlement, such as a great discrepancy between the amount of the settlement and the amount of ensuing damages, the exercise of pressure to make the settlement, the superior position of an affluent defendant over a needy plaintiff, or the occurrence of an unforeseen and extraordinary complication in the known injuries, clearly indicate that settlement was executed under a mutual mistake of fact, the court may act in order to prevent an unconscionable hardship to the injured party. This remedy, however, must exit in harmony with our policy of encouraging settlement and ending litigation. We said in Clancy v. Pacenti, supra, at 177:

“[I]t is important to preserve a field of action within which parties may compromise their differences with substantial assurance that the matter will not arise again,”

If we do not proceed with caution in this field and the validity of releases be seriously impaired, the result could be an enormous addition to a case load even now overwhelming.

We hold that where an injured party, conscious of the possibility of future consequences from the injury, makes her own investigation as to the nature of her injuries and the prospect of future complications, and, relying on the diagnosis and prognosis of her own doctor, compromises her claim and executes a release without reservation, she is bound thereby. The trial court properly sustained the motion for summary judgment.

Judgment affirmed.

SULLIVAN, P. J. and DEMPSEY, J., concur.


text:
    People of the State of Illinois, Defendant in Error, v. Maurice Pendleton, Plaintiff in Error.
    Gen. No. 50,932.
    First District, Third Division.
    September 29, 1966.

      Herbert B. Nechin, of Chicago, for plaintiff in error.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Joel M. Flaum, Assistant State’s Attorneys, of counsel), for defendant in error.
   MR. JUSTICE DEMPSEY

delivered the opinion of the court.

The defendant, Maurice Pendleton, was found guilty of theft in a non jury trial and was sentenced to serve a term of two to five years in the penitentiary.

The defendant contends that the State failed to prove that a theft was committed; that if a theft was committed the State did not prove the identity of the person who committed it; and that the State did not prove beyond a reasonable doubt that he participated in the alleged theft. He argues that all his actions can be explained on the theory of innocence and that his conduct after the supposed theft was especially inconsistent with guilt.

The State does not argue that the defendant himself committed the theft; rather, its position is that the evidence established that a theft was committed and that the defendant is legally accountable for the conduct of the actual thief. The State’s position is based on section 5-2 of the Criminal Code of 1961, which provides:

“A person is legally accountable for the conduct of another when:
“ (c) Either before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense.” (Ill Rev Stats, c 38, § 5-2 (c) (1963)).

The nature of the defendant’s contentions, in conjunction with the circumstances of the alleged offense, requires that the evidence be set out in some detail.

The State’s evidence was that in the afternoon of March 20, 1963, the defendant followed an unidentified woman into a grocery store at 13322 South Baltimore Avenue, Chicago, Two clerks, Ann Gleeson and Mary Petrungaro, were in the store, and a man who regularly delivered supplies was in and out of the store. The defendant and the woman, side by side and conversing, walked up and down the aisles and stopped at the meat case. The woman asked Mary for some spicy lunch meat; Mary replied there was none. The defendant and the woman were about to go out when Ann came from a back room with money in her hand. The woman then said to the defendant, “As long as we are here, honey, as long as we are here, why don’t we get a few things ?” The woman asked Mary to weigh several pounds of white potatoes. As Mary was doing that, Ann walked from the rear to a counter in the middle of the store. The woman asked Mary where the pop was, and she and the defendant went toward the back of the store to get a bottle. Mary waited at the front to check out the woman’s purchases. About this time one of the store’s regular customers came in, made a purchase and left.

Ann had been checking the delivery order when the defendant and the woman entered. About 5 minutes later she went to the back room to get money to pay the deliveryman. She got $416.02, and was counting it as she came from the back room. She saw the defendant and the woman near the front door and saw them turn toward the back of the store. She went to the counter where she had been checking the order and placed the money on the counter beneath a book and order sheet. Shortly thereafter the defendant came up to Ann and asked for a soap which was specially effective in cleaning hands. Ann told him the soap display was farther down the aisle. The defendant asked her to show him where it was. They went a few feet away to the soap display. She took a bar of soap and came back to where the money was placed. The defendant asked her to read the soap label to him. She told him the soap was good for dirty hands, and said, “You can read it, sir, here it is.” The defendant again asked her to read the label and she consented. While she read it to him her back was to the money. The defendant stood partially behind her, in a position to read the label with her. As she was reading someone whom she did not see pushed by. She turned to the counter where she had put the money, saw that the two pennies were on top of the book instead of underneath, picked up the book and discovered that the rest of the money was gone. She looked to the front of the store and saw the woman walking toward the door. As she was about to chase the woman the defendant asked her where the olives were. She said they were right there in front. The defendant took her by the arm and said, “You show me where they are at.” She told him to release her and to get the olives himself, and she hurried to the front of the store shouting for Mary to stop the woman.

When the woman approached the front of the store she set a pop bottle on the counter and asked Mary to substitute red potatoes for the white ones. Mary went from the check-out counter to the other side of the store where the vegetable bins were. It was then that Ann shouted to stop the woman. Mary saw the woman walk quickly from the store and ran after her into the street, but lost sight of her.

The defendant followed Ann to the front of the store and at the check-out counter said he would buy the soap and put a quarter on the counter. She said he would have to give her more money than that and demanded that he or his “girl friend” return the $416. He denied having the money and knowing the woman. She told him to wait till she called the police. He refused to stay and went to the doorway, but his exit was blocked by Mary who had returned to the store. The defendant pushed Mary and Ann told Mary to let him go and to call the police. She followed the defendant out of the store and down the street for half a block; he asked her how long she was going to follow him; she said she would continue until she knew where he was going or learned his license number. She saw the police car (which was responding to the telephone call), grabbed the defendant’s arm and shouted to the policeman. She testified that the defendant then “looked at me and said ‘You bitch, I’ll go to jail for sure now.’ ” The officer stopped his car and arrested the defendant.

The defendant testified that he had been to the docks near 130th and Stony Island seeking employment as a waiter on a boat. There he was told workers were hired at a union hall. On his way to the union hall he got a flat tire. He changed the tire, dirtying his hands, and then drove to the first grocery store he saw to buy some soap to wash his hands. When he entered the store there were more than five people already there. He testified that the unidentified woman was in the store when he entered, that she was pretty and he flirted with her but that he was rebuffed and thereafter paid no attention to her as he proceeded to make his purchase. He stated that he asked Ann for soap which was not too strong, and that she showed him a bar and explained its qualities. He denied that he asked her to read the label to him. He testified that he asked her for olives but denied holding her by the arm and demanding to be shown where the olives were. He stated that after he asked for the olives Ann walked up and down the aisles as if looking for something, that he went to the check-out counter to pay for the soap, that there she accused him and the woman of taking the money and that when he denied knowledge of the money and the woman she took a pistol from under the counter and made him empty his pockets. He convinced her that he did not have the money; she told him to wait till the woman was caught; he refused and she then said, “All right, we’ll go out and look for the woman.” He agreed and as they were walking a police car drove by; she seized his arm and shouted to the officer. The defendant denied calling her a “bitch” or saying that he would be going to jail.

In a nonjury trial it is the responsibility of the trial judge to determine the credibility of the witnesses and the weight to be accorded their testimony. His judgment will not be overturned unless it is found to rest on doubtful, improbable, unsatisfactory or clearly insufficient evidence, so that a reasonable doubt of guilt is justified. People v. Boney, 28 Ill2d 505, 192 NE2d 920 (1963); People v. Finley, 22 Ill2d 525, 177 NE2d 149 (1961), cert den, 368 US 1003 (1962). The trial judge in the instant case decided that the defendant was nofc to be believed. A careful examination of the record convinces us that the court’s appraisal of the defendant’s credibility should not be set aside. The evidence presented by the State is not doubtful, improbable or clearly insufficient, and all reasonable inferences to be drawn from the evidence support the conclusion of the court that a theft was committed and that before and during the commission of the theft the defendant intentionally aided and abetted a confederate in the commission of the theft.

The testimony as to the manner in which the defendant accompanied the woman through the store and talked with her justifies an inference that they had known each other before their meeting in the store; the inference is strengthened by the testimony that the woman called the defendant “honey.” When Ann entered from the back room counting the money the defendant and the woman were near the front door but were turned toward the rear of the store; a reasonable inference from what they said is that they saw the money and decided to wait for an opportunity to steal it. The defendant got Ann away from the money by asking her to show him where the soap was; when she returned to the money he distracted her attention by asking her to read the soap label, and by standing between her and the money he shielded his accomplice. The trial judge could fairly infer that these things were done with the intent to promote the commission of the theft. Ann remained in the narrow aisle near the counter on which the money was placed from the time she put it there until the time she discovered it was missing. When someone squeezed by her and the defendant and aroused her suspicion, no one other than herself, Mary, the defendant, the woman, and possibly the deliveryman was in the store. The deliveryman came in and went out several times that afternoon; he reentered the store just after the defendant and Ann left. The trial judge could properly assume that he was not in the store during this period and could conclude, by elimination, that the money was stolen by the woman who had hurried from the store without finishing her shopping.

Nor is the evidence of the defendant’s conduct after the theft compatible only with a hypothesis of innocence. When Ann discovered the theft and saw the woman hurriedly leave the store, she turned to pursue her and to summon aid. The defendant took her arm and told her to wait on him. A logical inference is that the defendant and the woman were acting in concert and that the defendant was attempting to give the woman a few crucial moments in which to escape. Moreover, the defendant’s statement to Ann just before his arrest indicates that he was aware of his guilt. That the defendant did not flee the store immediately, that he maintained his innocence under Ann’s accusations, and that he accompanied her in what he characterized as a search for the woman are facts just as consistent with guilt as innocence : he did not have the stolen money in his possession; he would be able to, and did, convince Ann that he was not the thief, and by talking to her he was giving his accomplice time to get away. When he knew, by Mary’s return that this was accomplished, he refused to await the arrival of the police and left immediately; and when Ann tagged along he showed his desire to be free of her by asking how long she was going to follow him.

The defendant was proved guilty beyond a reasonable doubt and the judgment of the trial court is affirmed.

Affirmed.

SULLIVAN, P. J. and SCHWARTZ, J., concur.


author: MR. JUSTICE MCCORMICK

text:
    The Estate of Bruce B. Bort, Deceased. Tena Bort, Petitioner-Appellee, v. Irving Eisenberg, Respondent-Appellant.
    Gen. No. 50,334.
    First District, Fourth Division.
    September 30, 1966.
    Rehearing denied October 24, 1966.
    Irving Eisenberg, pro se, of Chicago, appellant.
    Robert A. Sprecher and John P. Loughnane, of Chicago, for appellee.
   MR. JUSTICE MCCORMICK

delivered the opinion of the court.

This is an appeal taken from an order entered in the Circuit Court of Cook County, County Department, Probate Division. Tena Bort, the petitioner and surviving widow of the decedent, and Irving Eisenberg, the respondent-attorney, are coexecutors under the will of the decedent.

On August 28, 1964, petitioner filed a petition for reimbursement in which she alleged that on May 28, 1963, there was a joint checking account in the Beverly State Bank of Chicago in the names of Tena Bort and Bruce B. Bort, in the sum of $4,392.40; that on May 23, 1963, respondent sent a letter to the petitioner in which he stated in substance that he was enclosing a consent form for the release of the $4,392.40. The letter further stated:

“. . . This means we can withdraw all of it, or any part, for payment of all necessary expenses and costs in the estate. This includes courts costs, bonds if any, publications, court reporter, attorney and Executors fees, and widow’s award, etc.
“Thus, I suggest withdrawing about $3,000.00 or so, leaving the remainder in the same account, and we open an account downtown where I can attend to such payments more conveniently, including retainer on account for myself, in addition to costs. You are entitled to widow’s award as soon as the Inventory is filed and approved, which because of we trying to make an amicable arrangement with the grandchildren will result in some delay. ... If you would like to be with me on this new account, meet me early next week, otherwise I can open it alone, in which case just mail the withdrawal check to me.”

The balance of the letter refers to other matters being handled by respondent. The petitioner alleged that $3,-000 was withdrawn from the account by a cashier’s check, payable to the respondent, and was deposited by him. She further stated that subsequent to this transaction she was advised by members of her family that the account was in joint tenancy and that all monies deposited in such account, upon the death of decedent became her property. Petitioner thereupon requested that respondent return the $3,000. On June 3, 1963, the respondent mailed petitioner his check for $1,500, but refused to pay her the balance of the $3,000, and petitioner now prays that the respondent be ordered and directed to account for and pay to the petitioner forthwith, said money which he procured from the petitioner, together with interest thereon at the prevailing bank rate being paid by said Beverly -State Bank; that such other and further relief be given as to the court may seem just and meet.

The respondent filed a reply to the petition for reimbursement in which he admitted that $3,000 was withdrawn, and that it was at the express suggestion of the petitioner that the respondent retain the sum of $1,500; that the funds involved were personal funds of the petitioner, but that all concerned presumed such bank account to be estate funds. The reply further stated that with the determination that the account was in fact a joint tenancy account, the funds became exclusively the property of the petitioner, and hence, the Probate Court should not hold any hearing on the petition, since the court has no jurisdiction of the subject matter, the funds being nonestate funds. In the alternative, the respondent stated that he had performed numerous personal services for the petitioner, who consequently had become obligated to pay fees to him accordingly. These services were: a) Transfer of title of petitioner’s residence (which had been held in joint tenancy with decedent) to sole ownership of the petitioner; b) transfer of title of an automobile (held in joint tenancy) to the sole ownership of petitioner; c) preparation of an involved income tax return; and d) other comparatively minor items.

On October 19, 1964, the Probate Court entered an order directing the respondent to turn over and deliver to the petitioner the sum of $1,500. It is from that order that the respondent appeals. The order of the court recited that:

“And the Court having read the said petition and the answer of the respondent thereto, and having heard the testimony of said Irving Eisenberg, co-executor herein, and the arguments of counsel herein . .

However, the respondent was permitted to file a statement of facts in this court in which it is stated that no court reporter was present during the hearing; that the petitioner did not testify; that no testimony was given by respondent before the court, and the statements made during the argument were substantially the same as were set out in his reply. This was not denied by the petitioner.

The respondent contends in this court that the Probate Court had no jurisdiction of the subject matter since the monies involved belonged to the petitioner personally and had no connection with the estate funds; that since this is a dispute between counsel and client, with no connection as to estate matters, the trial court had no proper jurisdiction; and that even if it were held that there was jurisdiction, then the Probate Court could and should have used its equitable powers to see that counsel was properly compensated for the personal services he alleged he rendered to petitioner.

The petitioner argues that the Circuit Court of Cook County had jurisdiction to enter the order of October 19, 1964, since the Circuit Court, including all of its departments and divisions, has since January 1, 1964, been a court of complete and unlimited jurisdiction, and that the respondent can assert no vested right in remedies or laws of procedure existing prior to January 1, 1964. Petitioner states that even if the Circuit Court could, in the hearing of the instant case, exercise only its pre-January 1, 1964 Probate jurisdiction, the order must be affirmed because “it was supported by evidence,” and on the merits the respondent had no defense against the said order.

The petitioner calls attention to the fact that the order of the trial court from which this appeal is taken contains the statement that “the Court having . . . heard the testimony of said Irving Eisenberg, co-executor herein, and the arguments of counsel herein and being fully advised in the premises:” Petitioner cites the rule laid down in Smith v. Smith, 36 Ill App2d 55, 183 NE2d 559, that if the court signs an order which includes the words “the court was fully advised in the premises” it must mean, in the absence of any contrary indication in the order or in the record, that “the court • heard adequate evidence, received enough information or listened to sufficient law and argument, as the necessity of the particular case required, to enable the court to reach what it believed to be the right decision on the issue presented.” The petitioner cites other cases to the same effect. There is no question in the mind of this court that the trial court did not hold a hearing or determine the rights, if any, of the respondent to compensation for legal services rendered the petitioner in her individual capacity. The court had jurisdiction and a right to make such a determination.

The amendment to the Illinois Constitution, article VI, Schedule, par 5 (a) and (c) provides:

“All . . . probate courts . . . are abolished and all their jurisdiction, judicial functions, powers and duties are transferred to the respective circuit courts; . . .
“Each court into which jurisdiction of other courts is transferred shall succeed to and assume jurisdiction of all causes, matters and proceedings then pending, with full power and authority to dispose of them and to carry into execution or otherwise to give effect to all orders, judgments and decrees theretofore entered by the predecessor courts.”

The respondent had no vested right in the laws relating to procedure existing prior to January 1,1964.

In 1 James, Illinois Probate Law & Procedure, § 4, the statement is made that any discussion regarding the rule making power of the Probate Court has become academic by virtue of the adoption of the new Judicial Article and the transfer of the jurisdiction, judicial functions, powers and duties of probate and county courts to the respective circuit courts. Also see Orlicki v. McCarthy, 4 Ill2d 342, 122 NE2d 513.

If an attorney renders professional services he has the right to be recompensed for such services. If there is no agreement fixing the amount of compensation the attorney is entitled to receive what his services are reasonably worth. People’s Cas. Claim Adjustment Co. v. Darrow, 172 Ill 62, 49 NE 1005; Mecartney v. Wallace, 214 Ill App 618; Stufflebeam v. Jewell, 155 Ill App 108. It has been said that “Courts do not desire to deprive a lawyer of an honestly earned fee for services which he has performed and to which he is entitled as compensation under the law.” City Nat. Bank & Trust Co. v. Sewell, 300 Ill App 582, 21 NE2d 810.

The $3,000 checking account involved in this lawsuit was one in joint tenancy and was not connected with the estate in probate. The respondent, as coexecutor, had no right to the $1,500 involved; however, according to his allegations, there were certain services which he rendered as an attorney for his coexecutor. For such services he is entitled to compensation. There is nothing before this court to indicate that this matter was considered by the trial court. In our opinion, the trial court, operating through one of its appointed magistrates, had the right and the duty to determine whether any claims for attorney’s fees on the part of the respondent could be substantiated by hearing evidence as to the services he alleged he rendered, and to determine what the proper compensation for such services should be, then to deduct such sum, if any is found to be due the respondent, from the $1,500, and to order that the balance be turned over to the petitioner.

The judgment of the Circuit Court of Cook County, County Department, Probate Division, is reversed and remanded with directions to proceed in accordance with this opinion.

Reversed and remanded with directions.

DRUCKER, P. J. and ENGLISH, J., concur.


author: MR. PRESIDING JUSTICE DRUCKER

text:
    Charles Stewart and Patsy Stewart, Co-Administrators of the Estate of Debra Stewart, Deceased, and Charles Stewart, Plaintiffs, v. Mister Softee of Illinois, Inc., a Corporation, and Russell Dudley, Defendants. Russell Dudley, Third Party Plaintiff-Appellant, v. Mary R. Collins, Third Party Defendant-Appellee.
    Gen. No. 51,128.
    First District, Fourth Division.
    September 30, 1966.

      Pretzel, Stouffer, Nolan & Rooney, of Chicago (Howard C. Sorensen, of counsel), for third party plaintiff-appellant.
    Beverly and Pause, of Chicago (Robert 0. Duffy, of counsel), for third party defendant-appellee.
   MR. PRESIDING JUSTICE DRUCKER

delivered the opinion of the court.

This is an appeal from the dismissal of a third-party complaint.

Plaintiffs brought an action against the defendants, Mister Softee of Illinois, Inc., and Russell Dudley, in which they alleged that the negligence of the aforesaid defendants caused the death of Debra Stewart, who was six years old. Russell Dudley, one of the defendants, filed a third-party complaint against Mary Collins in which he prayed for judgment for “any sum that may be adjudged against him in favor of the plaintiff” plus various costs incurred by him. Upon motion of Mary Collins the court ordered that the third-party complaint be dismissed for failure to state a cause of action. The court expressly found “that there is no just reason to delay enforcement or appeal hereof.”

According to the allegations in the plaintiffs’ complaint, on August 29, 1962, Russell Dudley was operating an ice cream truck (used for selling ice cream on the street to members of the public), which was owned by Mister Softee of Illinois, Inc.; the truck was double-parked in the 3100 block of South Emerald Avenue (a one-way, southbound street) facing south on the east side of the street with its chimes sounding; Debra Stewart crossed the street, leaving the safety of the west side thereof, to purchase ice cream and was struck and killed by a car driven by Mary Collins. In his third-party complaint Russell Dudley alleges various acts of negligence on the part of Mary Collins and asserts that if he is held liable to the plaintiffs that liability will be predicated only “upon his passive conduct” in either double-parking the vehicle or sounding the chimes or bells.

As a general rule there can be no contribution or indemnity between joint tortfeasors. Shulman v. Chrysler Corp., 31 Ill App2d 168, 175 NE2d 590. In a negligence action a third-party complaint will lie only where the alleged negligence of the third-party plaintiff is passive. Blaszak v. Union Tank Car Co., 37 Ill App2d 12, 184 NE2d 808. In Spivack v. Kara, 69 Ill App2d 22, 24, 216 NE2d 173, the court stated that:

To combat the harshness of a rule prohibiting contribution among tortfeasors in all cases, Illinois courts have developed certain exceptions where indemnity is allowed. In general these exceptions arise where the party seeking indemnity has been guilty of only “legal” or “technical” negligence, while the indemnitor has committed the “active” or “primary” negligence. . . .
The usual case in which this exception is applied involves a specific relationship where the defendant incurring derivative liability has neither participated in the wrongful act nor known of the condition which caused the injury. . . .

In the instant case Dudley was selling a product which in itself is enticing to children. By double-parking his vehicle and sounding the chimes thereon he actively sought to attract and solicit the patronage of members of the public, including children, from both sides of the street. Therefore, if Dudley was guilty of negligence, that negligence was not merely “legal” or “technical” but was “active” or “primary” in nature.

In their briefs the parties argue as to whether indemnification exists in the absence of a contractual or quasi-contractual relationship between the third-party plaintiff and third-party defendant. The trial judge, on dismissal of the complaint, questioned the soundness of the decision in Reynolds v. Illinois Bell Tel. Co., 51 Ill App2d 334, 201 NE2d 322, on this point. However, in light of our holding in the instant case, this point need not be considered.

The order dismissing the third-party complaint is affirmed.

Affirmed.

ENGLISH and McCORMICK, JJ., concur.

       Plaintiffs and Mary Collins entered into a covenant not to sue, the validity of which is not here in question.


author: MR. JUSTICE BURMAN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Grant Jones, Defendant-Appellant.
    Gen. No. 50,267.
    First District, First Division.
    October 3, 1966.

      Robert J. Burdett, of Chicago, for appellant.

      Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James S. Veldman, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE BURMAN

delivered the opinion of the court.

The defendant, Grant Jones, was indicted in July of 1964 for the unlawful possession of narcotic drugs. Defendant moved to suppress heroin recovered from his person at the time of his arrest, and after a preliminary hearing that motion was denied. In a bench trial, the court found the defendant guilty and sentenced him to a term of two to three years in the penitentiary.

In this appeal, defendant makes the following contentions: (1) His arrest was invalid, and the motion to suppress wrongfully denied, because the arrest was made on the basis of an unverified tip from an informer whose reliability was not shown by the State; (2) the court’s refusal to permit identification of the informer during the preliminary hearing was a violation of defendant’s right to cross-examine a material witness; (3) the court erred in permitting a police officer to testify in the preliminary hearing as to what he had been told by the informer at the scene of the arrest; (4) a statutory provision prohibited the introduction into evidence of information divulged by the informer, either in testimony by the informer himself or by the hearsay testimony of the police officers; (5) possession of heroin by the defendant was not proved beyond a reasonable doubt; and (6) defendant, as a narcotic addict, did not possess the legal capacity requisite for criminal responsibility for the act of possessing narcotics.

The testimony at the hearing on the motion to dismiss, which was more extensive than that in the case in chief, was briefly as follows. Two Chicago police officers, John Campbell and Howard Anthony, testified that at about 11 p. m. on July 2, 1964, at 39th and State Streets in Chicago, they had a conversation about the defendant with a paid informer who was also a narcotics addict. Officer Campbell testified that he had spoken to this informer concerning narcotics about ten or twelve times in the past, and that the information he supplied had led to arrests and convictions and had been, “very reliable.” The officers testified the informer told them the defendant and a man named “Blood,” with whom they were familiar, were selling narcotics at 35th Street and Indiana Avenue. “He stated that narcotics addicts would give Blood the money and Grant Jones would go with Blood and get the narcotics and bring . . . the narcotics back to the addicts.” The informer and Officers Campbell and Anthony then proceeded to 35th Street and Indiana Avenue. The informer walked across the street and toward a group of persons standing on the corner. Shortly thereafter, a group of five or six persons, including the defendant and Blood, moved away from the larger group and northward on Indiana Avenue. The testimony of the officers is in conflict as to whether the informer was in this group. The group stopped, and the officers, who had observed all this from a doorway across the street, saw something exchanged. The informer then came across the street, and told Officer Campbell, “. . . that Blood and Jones had just took the money from the three addicts, . . . and that Blood and Jones is going to cop, that is, going to get the narcotics. And Jones would bring it back.” Jones and Blood then left the group and walked to a building at 3365 S. Indiana Avenue. Jones emerged from the building about ten or fifteen minutes later, and proceeded south on Indiana Avenue. Officer Campbell testified that after Jones had walked past him and Officer Anthony, he called out, “Jones, what have you got in your hand?” Campbell testified Jones’ hand was closed at the time, and he could see nothing. He further testified that Jones stopped, looked around at Campbell, and then dropped two tinfoil packages to the pavement. He was arrested, and a third package was recovered from his hand.

The defendant testified that as he was leaving the building he was approached by a man whom he did not know, but who he later learned was Officer Campbell, holding a drawn pistol. When Campbell asked him what he was holding in his hand, he answered that he didn’t have anything in his hand, whereupon Campbell struck him on the wrist with the pistol. Something dropped from his hand when he was struck, defendant testified; and he was instructed, “. . . to pick up two packages of narcotics, or three packages of narcotics up off the sidewalk.” The defendant did not know Campbell was a police officer until he was joined by another man whom defendant knew to be a police officer.

Defendant’s first contention is that the motion to suppress was wrongfully denied because the arrest was made on the basis of an unverified tip from an informer whose reliability was not shown by the State. We note, at the outset, that if Officer Campbell’s version of the arrest is believed, the defendant dropped two packages of narcotics on the sidewalk in plain sight of the officer before there had been any arrest or search. Under such circumstances, the police had probable cause to arrest and search the defendant, and there is no merit in the motion to suppress.

Defendant’s version of the arrest, however, is that the contents of his closed hand were forcibly removed by a police officer using a drawn pistol, all of which was denied by the officers. If such was the case, it was incumbent upon the State to show probable cause for the arrest and search. In the recent case of People v. McClellan, 34 Ill2d 572, 218 NE2d 97, our Supreme Court in reversing a conviction for the unlawful possession of narcotics stated the standard for probable cause as follows:

Probable cause for an arrest may, of course, be based upon information supplied by an informant, if the reliability of the informant has been previously established (People v. Durr, 28 Ill2d 308) or independently corroborated. People v. McFadden, 32 Ill2d 101 (34 Ill2d at 574).

The court pointed out that the past reliability of the informer in that case had not been shown because he was not known to the officers. They further observed that there was no independent corroboration of the tip by the presence of other factors predicted by the informer, inasmuch as the tip had been no more than, “That dude is dirty.”

In the case at bar, however, the record reveals the presence of both of these indications of the reliability of the tip. Officer Campbell testified that he did some undercover work with the informer on some of the previous investigations and that tips from this informer had led in the past to many arrests and convictions, and had been, “very reliable.” Furthermore, the narcotics purchase transaction described to the officers by the informant in the tip, including the respective roles of the defendant and of Blood, seemed to correspond with the activities the officers testified they observed at 35th Street and Indiana Avenue. Both of these factors clothed the tip with reliability, and therefore constituted probable cause for the arrest and accompanying search. We therefore hold that under either version of the arrest and search, the court was correct in denying the motion to suppress.

Defendant contends that the court erroneously permitted Officer Campbell to testify as to what he was told by the informer at the scene of the arrest. While defendant concedes that hearsay evidence as to the contents of the informer’s tip is admissible in a hearing on a motion to suppress, it is his position that the State cannot offer as corroboration of that tip hearsay testimony as to what the informer said to the police officer at the scene of the arrest. No authority is offered in support of this claimed exception to the general rule that hearsay is admissible in the determination at a preliminary hearing of the presence of probable cause for arrest. People v. LaBostrie, 14 Ill2d 617, 153 NE2d 570; United States v. Li Fat Tong, 152 F2d 650. But even beyond this, it is clear from the record that the movements of the defendant and his companions, which the officers saw themselves constituted corroboration of the tip originally given them by the informer, even before the informer explained to them the significance of the transaction.

Also during the hearing on the motion to suppress, Officer Campbell was asked on cross-examination for the name of the informer. The State’s objection to the question was sustained. Defendant contends on appeal that this ruling was a violation of his right to confront and cross-examine a material witness.

The attack upon the so-called “informer’s privilege” which defendant makes in this case should be distinguished from the related but different attack adjudicated in Roviaro v. United States, 353 US 53, and in People v. Mack, 12 Ill2d 151, 145 NE2d 609. In those cases, the holdings as to the right to withhold the identity of the informer turned on whether the testimony of the informer as to the circumstances surrounding the offense or the arrest was potentially crucial to the preparation of the defense. In Roviaro, the informer had participated in the commission of the crime, and testimony was offered at the trial as to conversations between the defendant and the informer. The United States Supreme Court held that fundamental fairness required that the informer be identified and thereby made available to the defendant. In Mack, however, our Supreme Court distinguished Roviaro on the grounds that in Mack the informer had neither participated in the crime nor was present at the arrest. The Court held it did not appear that the testimony of the infomer would be relevant or helpful to the defense, and affirmed the conviction.

In the case at bar, the defendant makes no claim that the informer was either a participant in the crime or present at the time of the arrest. His line of attack against the informer’s privilege is that the presence or absence of probable cause to arrest the defendant turned largely upon the reliability of the informer; and that therefore an opportunity to cross-examine the informer was crucial to his defense. Once again, we must note that under the version of the arrest given by the officers, this contention is without merit, because there can be no question that there was probable cause to arrest and search the defendant. But even under defendant’s version of the arrest, the result is the same. A similar contention was made and rejected in People v. Durr, 28 Ill2d 308, 192 NE2d 379. The court pointed out that the reliability of the informer had been established by the testimony of the officer that previous information from this informer had proved to be accurate. After observing that, as in Mack, the informer neither participated in the crime nor was present at the arrest, the Court affirmed the conviction, holding:

“. . . determination of probable cause by reliance upon the officer’s testimony as to the reliability of an otherwise anonymous informer is likely to produce evils of far less consequence than those resulting from depriving the public of an important source of information necessary to the suppression of a particularly vicious form of crime.” (28 Ill2d at 315).

This position was restated more recently in People v. Nettles, 34 Ill2d 52, 55, 213 NE2d 536. Under these authorities, therefore, we hold that whichever version of the arrest and search is accepted, the defendant is not entitled to disclosure of the identity of the informer.

Defendant next contends that the information supplied by the informer was inadmissible by statute, and therefore could not be rendered competent by the fact that it was introduced as hearsay in the testimony of the officers. The statute relied upon is Ill Rev Stats, ch 38, § 608a (1963), which provides in part that when a public law enforcement officer employs a detective or investigator on a compensation basis other than that of time, the detective or investigator is incompetent to testify as to information or evidence acquired by him, and the evidence so acquired is inadmissible in any court in the State for any purpose. Defendant contends that the informer in this case, who was admittedly paid for his information, received compensation on a “job” basis, and that therefore the information which he gave the officers and to which the officers testified was inadmissible. We see no merit in this contention, for an informer cannot be classed as a “detective or investigator” within the contemplation of this statute.

Defendant claims that his possession of heroin was not proved beyond a reasonable doubt. This argument seems to rest upon defendant’s conclusion from the evidence that while he had only three envelopes at the time of his arrest, four were recovered from the sidewalk and one from his hand; and since Officer Campbell only field tested one package and the police chemist also tested only one, the State did not prove beyond a reasonable doubt that any of the packages in the possession of defendant contained heroin. We have reviewed the record carefully, and find the evidence overwhelming that there were just three packages involved. Defendant’s claim that there were more apparently rests upon the testimony of Officer Anthony that when Jones was asked what he had in his hand, “He dropped two . . . four packages to the ground.” This ambiguous answer, when considered in the context of a record which is otherwise clear that there were only three packages, is not sufficient to raise a reasonable doubt.

Finally, defendant contends that since he was a narcotics addict he lacked substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law; and that therefore under Ill Rev Stats, ch 38, § 6-2, (1963) he is not criminally responsible for his conduct. He alleges that a narcotics addict is a person suffering from a disease analogous to mental illness or insanity, and that for an addict to possess the drug to which he is addicted is to do an act over which he has no control.

This contention was not made by defendant in the course of his trial, but is raised for the first time on appeal. In People v. Milligan, 28 Ill2d 203, 190 NE 2d 753, the court held that the defense of insanity at the time the crime was committed is an affirmative one and unless raised is waived. 28 Ill2d at 205. We cannot, therefore, consider this point for the first time on appeal.

The judgment of the Criminal Division of the Circuit Court of Cook County is affirmed.

Judgment affirmed.

KLUCZYNSKI, P. J. and MURPHY, J., concur.


author: ME. JUSTICE MUEPHY.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. George Williams, Defendant-Appellant.
    Gen. No. 50,371.
    First District, First Division.
    October 3, 1966.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Marshall A. Patner, Frederick F. Cohn 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 Joel M. Flaum, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by

ME. JUSTICE MUEPHY.

Not to be published in full.


text:
    John Casey, Plaintiff-Appellant, v. Alba Company, et al., Defendants-Appellees.
    Gen. No. 50,744.
    First District, First Division.
    October 3, 1966.
    Louis M. March, of Chicago, for appellant.
    Hinshaw, Culbertson, Moelmann & Hoban, of Chicago (John M. Moelmann and D. Kendall Griffith, of counsel), for appellees.
   MR. JUSTICE BURMAN

delivered the opinion of the court.

The plaintiff, John Casey, brought this action on June 3, 1964, for personal injuries allegedly resulting from an accident occurring at his place of employment on April 23, 1962. In his complaint, he alleged that the occurrence resulted from violations of the Structural Work Act by the defendants, and sought damages in the amount of $100,000. Defendants then moved to dismiss the action on the grounds that it was not brought within two years after the occurrence. The trial court sustained this motion, and plaintiff appeals.

Plaintiff concedes that this action was commenced more than two years after the accident, and that the general rule, as stated in Ill Rev Stats, c 83, § 15 (1963) is that actions for damages for an injury to the person must be brought within two years after the cause of action accrued. He contends, however, that when in 1963 the Legislature passed § 24f of the same chapter (Ill Rev Stats, c 83, § 24f (1963)), a four-year period of limitations was established for the class of cases described therein. He further argues that this substitution of a four-year period of limitations, effective in 1963, applies retrospectively as well as prospectively, and therefore entitles him to file his action any time within four years after the accident.

The statute upon which plaintiff relies reads as follows:

§ 24f. Injury or death arising out of defective and unsafe condition of improvement to realty. .
No action to recover damages for any injury to property, real or personal, or for injury to the person, or for bodily injury or wrongful death, arising out of the defective and unsafe condition of an improvement to real estate, nor any action for contribution or indemnity for damages sustained on account of such injury, shall be brought against any person performing or furnishing the design, planning, supervision of construction or construction of such improvement to real property, unless such cause of action shall have accrued within four years after the performance or furnishing of such services and construction. This limitation shall not be available to any owner, tenant or person in actual possession and control of the improvement at the time such cause of action accrues.

The primary object in construing a statute is to ascertain and give effect to the true intent and meaning of the legislature in enacting it, for it is the intention of the lawmakers that make the law. Hoyne v. Danisch, 264 Ill 467, 106 NE 341. In construing the statute upon which plaintiff relies, we must accept the plain meaning of its language. The statute provides that actions of the type described cannot be brought unless such action has accrued within four years after the performance of the services by the designers, planners, or supervisors of construction. The limitations statute, in contrast, provides that the action must be commenced within two years after the cause of action accrued. We find no conflict between the provisions of these two statutes. That none was contemplated by the legislature is evidenced by the fact that there is no mention in § 24f that any portion of § 15 is repealed or superseded. We therefore conclude that the trial court was correct in holding that the suit was barred by the statute of limitations. Accordingly, the judgment of the trial court, dismissing the action, is affirmed.

Judgment affirmed.

KLUCZYNSKI, P. J. and MURPHY, J., concur.


author: JUSTICE MURPHY.

text:
    Brunswick Engineering, Inc., an Illinois Corporation, Plaintiff-Appellee, v. Atlantic Polishing Mill, Inc., an Illinois Corporation, Defendant-Appellant.
    Gen. No. 50,833.
    First District, First Division.
    October 3, 1966.
    Rehearing denied October 18, 1966.
    Samuel Morgan, of Chicago, for appellant; Philip M. Bloom and Frank Bloom & Starr, of Chicago, 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. Angelo Ferrara, Defendant-Appellant.
    Gen. Nos. 50,667, 50,955.
    First District, Second Division.
    October 4, 1966.

      Thomas O. Flack and Jay M. David, of Chicago, for appellant; Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James S. Veldman, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by

JUSTICE BURKE.

Not to be published in full.


author: MR. JUSTICE LYONS.

text:
    Joseph L. Audino, Plaintiff-Appellee, v. Board of Appeals of the City of Chicago, B. Emmet Hartnett, et al. as Members of the Board of Appeals of the City of Chicago, John P. Maloney, Zoning Administrator of the City of Chicago, Sidney D. Smith, Commissioner of Buildings of the City of Chicago, and the City of Chicago, a Municipal Corporation, Defendants-Appellants.
    Gen. No. 50,797.
    First District, Second Division.
    October 4, 1966.
    Raymond F. Simon, Corporation Counsel, of Chicago (Sydney R. Drebin and Ronald S. Cope, Assistant Corporation Counsel, of counsel), for appellant; Charles C. Poreelli, of Chicago, for appellee.
   Opinion by

MR. JUSTICE LYONS.

Not to be published in ML


author: MORAN, J.

text:
    James Travis, Plaintiff-Appellant, v. Floyd D. Foreman and Donald Hazel, Defendants-Appellees.
    Gen. No. 66-44.
    Fifth District.
    October 6, 1966.
    Kenneth F. Kelly, of Granite City, for appellant.
    Ryan, Mondhink & Moorman, of Alton, for appellees.
   MORAN, J.

This is an appeal from a judgment order setting aside a judgment by confession on a warrant of attorney and ordering that the defendants “go hence without day and recover their costs.” The judgment by confession was entered against Floyd Foreman and Donald Hazel, who signed the following promissory note and warrant of attorney:

$6,408.00 November 22, 1968
I Eugene Taylor After date for value received, I promise to pay to the order of Mr. James Travis, $6,408.00
And I Donald Hazel, And I Floyd D. Foreman agree to go together and pay Mr. James Travis the face value of this note Dollars
if Eugene Taylor dosen’t (sic). with interest at 6% per cent per annum after date until paid.
And to secure the payment of said amount I hereby authorize irrevocably any attorney of any court of record to appear for me in such Court, in term time or vacation, at any time hereafter and confess a judgment without process in favor of the holder of this Note, for such amount as may appear to be unpaid thereon, whether due or not, together with costs, and to waive and release all errors which may intervene in any such proceedings and to consent to immediate execution upon such judgment, hereby ratifying and confirming all that said Attorney may do by virtue hereof.
Post Office Address (Signed) Eugene Taylor
Granite City, HI. Floyd D. Foreman
Due Nov. 22,1964 Donald F. Hazel

After a judgment by confession was entered, the defendants moved to vacate on the ground that “the warrant of attorney (was) insufficient on its face to authorize the confession of judgment” against them. The court granted the motion. Plaintiff-appellant argues that all three signatories to the note were comakers both of the note and of the warrant of attorney and that, as such, a judgment of confession was authorized against the two defendants. The issue is whether the defendant authorized a confession of judgment against themselves by signing of the note in question.

It has long been recognized by Illinois courts that the power to confess a judgment must be clearly given, Wells v. Durst Chevrolet Co., 341 Ill 108, 173 NE 92, and that authority to confess judgment under a warrant of attorney must be strictly construed and must be strictly followed. Holmes v. Partridge, 375 Ill 521, 31 NE2d 948; Keen v. Bump, 286 Ill 11, 121 NE 251; Dulsky v. Lerner, 223 Ill App 228; Liberty Nat. Bank of Chicago v. Vance, 3 Ill App2d 1, 120 NE2d 349. Therefore, unless it can be shown that the position of the defendants’ signatures at the bottom of the note clearly indicated their intent to be bound by the terms of the warrant of attorney, the judgment of the lower court vacating the judgment by confession must be affirmed.

The language typewritten onto the note indicates that the defendants intended to be guarantors of the payment of the note. Dickerson v. Dickerson, 39 Ill 574; Abbott v. Brown, 131 Ill 108, 22 NE 813; Beebe v. Kirkpatrick, 321 Ill 612, 152 NE 539. They promised to pay “if Eugene Taylor dosen’t (sic).” Their liability arose only when Eugene Taylor failed to pay. On the other hand, Eugene Taylor was liable to the plaintiff as the maker of the note. Thus the liabilities of the parties to the note were different. Eugene Taylor signed and was liable as a maker; the defendants as guarantors. However, the warrant of attorney provides that a judgment may be confessed “at any time” whether the note is due or not. It is inconsistent to say that these provisions apply both to the defendants and to the maker. The defendants would be liable only if the maker failed to pay. Judgment by confession could not be authorized against them at any time whether the note was due or not. A condition to their liability would be Eugene Taylor’s default. The very language of the warrant debilitates an interpretation which would bind the defendants to its terms.

In addition, the words “I” and “me” appear in the warrant. We recognize that under some circumstances the use of singular personal pronouns indicates a warrant which is joint and several. Holmes v. Partridge, 375 Ill 521, 31 NE2d 948; Nash v. Clark, 310 Ill App 437, 34 NE2d 876. However, these cases are not applicable where the sole maker and the two guarantors signed in different capacities. The use of “I” and “me” under such circumstances indicates that the sole maker was the only party to whom reference was made.

Finally, the defendants cite authorities for the statement that courts have been extremely reluctant to extend authority to confess judgment as against endorsers, assignees, and guarantors. While no case cited involves facts similar to the present case, the tendency of courts to construe, warrants of attorney very strictly is quite evident. In Wolf v. Gaines, 33 Ill App2d 428, 179 NE2d 466, for instance, the defendants signed an instrument reciting that it should be attached to and made a part of a lease and that all the signers were obligated to carry out the terms of the lease, one of which was a warrant of attorney. The court emphasized that the power to confess judgment must be clearly given and strictly pursued and held that the warrant of attorney did not extend to the signers. Accord, Liberty Nat. Bank v. Vance, supra. So too, in this case, cognizant of the different liabilities of the signers and the absence of any other place on the note where the guarantors could sign, we hold that the position of the defendants’ signatures at the bottom of the note does not clearly indicate their intent to be bound by the terms of the warrant of attorney.

However, the plaintiff is not precluded by this opinion from proceeding to obtain relief against the guarantors in a proper manner. Sharpe v. Second Baptist Church of Maywood, 274 Ill App 374.

For the foregoing reasons the judgment of the lower court is affirmed.

Judgment affirmed.

EBERSPACHER and GOLDENHERSH, JJ., concur.

       The italicized words were typewritten onto the printed form.


author: TRAPP, P. J.

text:
    Inez O. Schroeder, Plaintiff-Appellant, v. Community Unit School District No. 2 of Macoupin County, Illinois, Defendant-Appellee.
    Gen. No. 10,739.
    Fourth District.
    October 6, 1966.
    Frederick R. Pefferle, of Springfield, for appellant.

      Hebron & Denby, of Carlinville (W. W. Denby, of counsel), for appellee.
   TRAPP, P. J.

This is an appeal by Inez 0. Schroeder, who was plaintiff in a personal injury suit against Community Unit School District No. 2 of Macoupin County, Illinois, from an order of the Circuit Court of the Seventh Judicial Circuit, Macoupin County, Illinois, dismissing her complaint for alleged failure to comply with the notice provisions of “An Act relating to damages recoverable against school districts and non-profit private schools for injuries occurring as a result of negligence in the conduct of schools,” chap 122 (Ill Rev Stats 1961).

Section 823 of chap 122 (Ill Rev Stats 1961) provides:

“Within six months from the date that such injury was received or such cause of action accrued, any person who is about to commence any civil action in any court against any school district for damages on account- of any injury to his person or property shall file in the office of the school board attorney, if there is a school board attorney, and also in the office of the clerk or secretary of the school board, either by himself, his agent or attorney, a statement in writing signed by himself, his agent or attorney, giving the name of the person to whom the cause of action has accrued, the name and residence of the person injured, the date and about the hour of the accident, the place or location where the accident occurred and the name and address of the attending physician, if any.”

A notice was prepared and served upon the President of the School Board, the Secretary of the School Board, the Principal of the School and the School District insurance carrier, giving the information required by the statute within the time provided by the statute. Suit was filed alleging the giving of the notice and an answer filed admitting the allegation. Subsequently, defendant filed a motion and, later, an amended motion to dismiss, alleging that no notice had been served upon the school board attorney.

There was attached to the motion to dismiss an affidavit of Willard Kelsey, stating that he was the attorney for the school board at the time of the affidavit and had been from an unstated time prior to the accident.

There is no evidence of any official record of the school board appointing any attorney as school board attorney, nor any evidence of any contract, verbal or written, nor any evidence of any work done or consultations had as school board attorney, nor any salary or other compensation agreed upon or paid any school board attorney, nor any evidence that an official office of school board attorney existed or that any place was in any way designated as office of school board attorney. It appears from the briefs that Willard Kelsey is now deceased. No evidence was taken, but certain correspondence between plaintiff’s attorney and Willard Kelsey was inserted in an affidavit of plaintiff’s attorney in opposition to the motion to dismiss.

It appears that there was a Macoupin County School Directory published by the Superintendent of Schools of Macoupin County which, for the years 1961-1962 and 1962-1963 noted Hemphill and Kelsey, Carlinville, Illinois, as attorney for the defendant. There was no partnership of Hemphill and Kelsey on the date of the accident (February 17, 1962), or thereafter because the partner, Victor Hemphill, died October 19, 1957, and by January 1, 1962, Willard Kelsey was practicing under the name of Kelsey and Koval.

In his letter to plaintiff’s attorney, which is included in the affidavit previously mentioned, Willard Kelsey stated that “to the best of my recollection Victor Hemp-hill was originally appointed attorney for C.U.S. District No. 2 and continued as such attorney until his death on October 19, 1957.” He is uninformed as to any minutes of the school board regarding such appointment, and apparently uninformed as to the date or other details in regard thereto.

Without any record or other evidence of official action of the school board in reference to appointment of a school board attorney, we are unable to find that a school board attorney existed in any official sense within the meaning of the statute. If evidence were available that the school board or some members thereof, at some time, consulted a particular attorney on school business, or that some members considered a particular attorney the school board attorney, all of which is lacking here, this would not establish a person as school board attorney.

Numerous authorities are cited which tend to establish that a similar statute providing for notice of injury to a city attorney must be complied with in all details. Other authorities are cited which tend to show that the statute is in derogation of a common-law right and that it should be construed strictly against the municipal corporation asserting it. These cases are: Riddle v. City of Marion, 44 Ill App2d 11, 193 NE2d 877, holding the giving of a wrong date of accident fatal to the notice; Walters v. City of Ottawa, 240 Ill 259, 88 NE 651, also holding the wrong date makes the notice fatally defective; McCarthy v. City of Chicago, 312 Ill App 268, 38 NE2d 519, holding that filing in the office of the City Clerk is an absolute requirement; Minnis v. Friend, 360 Ill 328, 196 NE 191, holding failure to sign the notice renders it ineffective; Lutsch v. City of Chicago, 318 Ill App 156, 47 NE2d 545, holding that, where an original was signed and receipted by the clerk, the fact that other copies, which were receipted by the corporation counsel and city attorney, were not signed, was not fatal; Schmidt v. City of Chicago, 284 Ill App 570, 1 NE2d 234, holding that where the physician was well known, the fact that the street number of his address was two digits off did not invalidate the notice; and McComb v. City of Chicago, 263 Ill 510, 105 NE 294, holding that failure to give the specific corner of an intersection did not invalidate the notice. We note also Haymes v. Catholic Bishop of Chicago, 52 Ill App2d 140, 201 NE2d 675, which holds that a minor is excused from giving the notice, and treats the statute before us as a statute of limitations.

The case which most closely approximates the present situation, among those called to our attention, is Donaldson v. Village of Dieterich, 247 Ill 522, on pp 522-525, 93 NE 366, where a person not a licensed attorney, who had acted for a village as prosecuting attorney before the police magistrate, was held by the Appellate Court to be the de facto village attorney. The Supreme Court, in reversing the Appellate Court, said in part, p 525:

“This section of the statute is quite drastic, and the succeeding section provides that if the notice is not filed as provided to be by section 2 of said act the suit shall be dismissed, and the person to whom such action shall have accrued for a personal injury shall be forever barred from further suing upon said cause of action. We think this statute should be strictly construed, and that for a city, village or town to avail itself of the provisions of the said statute it should clearly he made to appear that there was an attorney duly appointed for the municipality who has an office at a fixed place, so that a person who has been injured by the negligence of the city, village or town may know with reasonable certainty with whom and in what place to file the notice required to be filed by the statute, otherwise the injured person might be defeated upon a just claim by reason of the fact that he was unable to determine with whom to file such notice.” (Emphasis ours.)

There is evidence that plaintiff’s attorney sought to determine whether there was a school board attorney and was advised by a clerk in the County Superintendent of Schools Office of Macoupin County that none was listed. This evidence would have some bearing on the question of the attempted compliance mentioned in Lutsch v. City of Chicago, 318 Ill App 156, on p 159, 47 NE2d 545.

In any event, it has long been held that where official bodies are required to keep a record of their proceedings, the only proper evidence of the proceedings of such bodies is the official record of their acts. People ex rel. Prindable v. New York Cent. R. Co., 400 Ill 507, on p 512, 81 NE2d 201; Gietl v. Drain. Dist. No. 1, 384 Ill 499, on p 502, 51 NE2d 512; People v. Chicago Heights Terminal Transfer R. Co., 375 Ill 590, on p 597, 32 NE2d 161; Hankenson v. Board of Education of Waukegan Tp., 10 Ill App2d 79, on pp 93, 94, 134 NE2d 356.

We hold that there is no proper showing in this record that there was a school board attorney for the defendant district holding office within the meaning of chap 122, § 823 (Ill Rev Stats 1961).

The order of the trial court dismissing the complaint is reversed and the cause is remanded for further proceedings not inconsistent herewith.

Reversed and remanded.

SMITH and CRAVEN, JJ., concur.