author: JUSTICE LINDBERG JUSTICE UNVERZAGT,

text:
    SANNI, INC., Plaintiff-Appellee, v. OLGA FIOCCHI, Defendant-Appellant.
    Second District
    No. 82—49
    Opinion filed December 21, 1982.
    Rehearing denied January 25, 1983.
    UNVERZAGT, J., dissenting.
    Wasneski, Kuseski & Flanigan, of Waukegan, for appellant.
    Semmelman & Lombardi, of Lake Forest, for appellee.
   JUSTICE LINDBERG

delivered the opinion of the court:

This appeal by defendant Olga Fiocchi from the circuit court of Lake County focuses on the construction of a lease executed by the parties in August 1976. Defendant contends that she should not be held personally liable under the provisions of a certain restrictive covenant contained in said lease and the trial court erred in denying her motion for involuntary dismissal in light of plaintiff’s failure to comply with the requirements of the lease renewal clause.

The facts are not substantially in dispute. On August 19, 1976, plaintiff, Sanni, Inc., entered into a five-year lease with defendant, Olga Fiocchi, as executrix of the estate of Frank Fiocchi, for the purpose of operating a beauty shop in a small shopping center owned by the estate of Frank Fiocchi and known as the “Old Elm Shops.” The lease terminated on August 31, 1981, subject to a renewal option extending the lease until August 31, 1986.

The lease contained the following pertinent paragraphs:

“21. (c) All covenants, promises, representations and agreements herein contained shall be binding upon, apply and inure to the benefit of lessor and lessee and their respective heirs, legal representatives, successors and assigns.”
“27. Lessee shall have the option in its discretion, provided it expresses its option by notice to the lessor (or its assigns) in writing on or before ninety (90) days prior to the expiration of the first five (5) year term, to renew the lease for additional five (5) years term at or for the sum of Four Hundred ($400.00) Dollars per month with all other terms and conditions of the lease remaining the same.”

Of particular importance is Clause 28, which provides:

“28. Lessor agrees not to lease any other stores in Old Elm Shops Shopping Center for the purpose of a beauty salon.”

In 1978, the Old Elm Shops were distributed to the heirs of Frank Fiocchi in accordance with the provisions of his will. The subject leased premises and three other stores were distributed to Nancy Majzel, the daughter of Frank Fiocchi, and the remaining three stores were distributed to defendant, Olga Fiocchi.

On or about June 1981, the defendant, acting through her son, Leonard Favella, entered into a month-to-month oral lease .with certain parties for the purpose of operating a beauty salon in one of the three stores owned by defendant in the Old Elm Shops. Thereafter, plaintiff filed the instant action in which it sought to enjoin the operation of a competing beauty salon at the shopping center in accordance with the restrictive provisions contained in Clause 28 of the subject lease.

In response to the complaint, defendant filed a motion for involuntary dismissal, alleging that plaintiff failed to comply with the notification provisions of Clause 27. Said clause provided that plaintiff might renew the lease for an additional five-year term upon written notification to lessor or its assigns on or before 90 days prior to the expiration of the term. Defendant asserted that the lease would not extend beyond August 31, 1981, by virtue of plaintiff’s failure to provide formal notification of renewal and, as such, plaintiff would only suffer two months of damage resulting from the competing beauty shop.

Plaintiff’s answer to the motion alleged that the notification provisions of Clause 27 had been waived by the current lessor, Nancy Majzel. Additionally, plaintiff filed an amended complaint which included a document entitled “Extension of Lease,” dated July 29, 1981, in which Nancy Majzel formally accepted plaintiff’s request to renew the lease and waived the notification provisions of Clause 27. Following arguments of counsel, the motion was denied.

The case proceeded to trial on January 5, 1982. After the close of the evidence and arguments of counsel, the court entered judgment for injunctive relief in favor of plaintiff. The court’s order enjoined defendant, her successors and assigns from leasing any store in the property commonly known as the “Old Elm Shops” for the purpose of operating therein a beauty salon until August 31, 1986. Defendant was further ordered and directed to terminate the month-to-month lease which she had orally executed in June 1981.

Defendant contends that she is not personally bound by the restrictions contained in Clause 28 of the subject lease by virtue of the fact that she executed the lease in a representative capacity, to wit, as executrix of the estate of Frank Fiocchi. Plaintiff responds that defendant was granted no authority to execute said lease agreement, either through Frank Fiocchi’s will or by order of court and, as such, defendant must be held personally liable on the covenants contained in said lease.

The law is well settled in Illinois that an executory contract of an executor or administrator, if made on a new and independent consideration moving between the promisee and the representative, is his personal contract upon which he becomes personally liable, and does not bind the estate. (Bauerle v. Long (1900), 187 Ill. 475; In re Estate of Way (1926), 242 Ill. App. 459; Marsh v. Steiniger (1922), 225 Ill. App. 114; Coutsogeorge v. Monaghan (1921), 221 Ill. App. 539; see also Thomas v. Gouwens (1975), 25 Ill. App. 3d 663, 323 N.E.2d 829.) This rule is applicable even though the debt incurred was for the benefit of the estate and the representative described himself in the contract as an “executor” or an “administrator.” (Bauerle v. Long; Marsh v. Steiniger.) An executor will only be absolved of personal liability where he is granted authority to execute said contract by order of court or by the will of the decedent. Bauerle v. Long; In re Estate of Way; Ill. Rev. Stat. 1979, ch. 1101/2, par. 20—2; see also Annot., 95 A.L.R.2d 258 (1964).

There is no evidence in the record which would indicate whether or not a court order was issued which authorized the lease or whether decedent’s will authorized defendant to execute the lease. This court cannot consider facts which are not in the record (Collosseo v. Lynn (1980), 88 Ill. App. 3d 344, 410 N.E.2d 577), and although an appellee may defend a judgment on review by raising an issue not previously ruled upon by the trial court, the necessary factual basis for the determination of such point must be contained in the record. (Kravis v. Smith Marine, Inc. (1975), 60 Ill. 2d 141.) Consequently, the general rule applies, and we conclude defendant was personally bound by the restrictive covenant during the term of the lease. In reaching this conclusion, we note that both parties agree that Nancy Majzel, the specific devisee of the subject property leased to plaintiff, assented to the terms of the lease. Likewise, we find Olga Fiocchi, although signing the lease as executrix, must be held to have assented to — and, thus, had notice of — the terms of the restrictive covenant insofar as it related to the property of which she was the residuary devisee. See generally Baird & Warner, Inc. v. Stuparits (1977), 53 Ill. App. 3d 338, 342, 368 N.E.2d 748; Farm Food Stores, Inc. v. Gianeschi (1943), 320 Ill. App. 582, 586-87, 51 N.E.2d 792.

Empire Fire Proofing Co. v. Comstock (1905), 121 Ill. App. 518, cited by defendant, is inapposite. Although the continued vitality of Empire is questionable, the case is readily distinguishable. There, the court refused to impose personal liability on the trustees of an estate who had executed a construction contract on behalf of the estate. The court pointed to, inter alia, the fact that the main parties to the contract were the contractor and the estate itself. Additionally, all of the clauses in the contract referred directly to the estate rather than the trustees. The court concluded that there is a clear and marked distinction between the agreement of an agent who describes himself as contracting for a principal and the covenant of a principal who contracts by and through an agent. The former is regarded as the personal contract of the agent, while the latter is held to be the undertaking of the principal. (121 Ill. App. 518, 525.) In the instant case, the contract is framed in terms of an agent contracting for a principal. As such, under Empire, defendant would be personally liable.

Further, plaintiff’s citation of Baird & Warner, Inc. v. Stuparits (1977), 53 Ill. App. 3d 388, 368 N.E.2d 748, is not of particular assistance. In Baird decedent’s will explicitly granted the executors authority to enter into the contract at issue. No facts have been established which would indicate the existence of such authority here.

Defendant also contends that she cannot be held liable under the subject restrictive covenant as a successor in interest to the estate of her deceased husband. She asserts that since the covenant encompassed property other than that which was demised under the terms of the lease, it was personal to the estate and did not run with the land so as to bind her as the grantee of the lessor.

Restrictive covenants are valid in Illinois if they are reasonable. (House of Vision, Inc. v. Hiyane (1967), 37 Ill. 2d 32; Goldblatt Brothers, Inc. v. Addison Green Meadows, Inc. (1972), 8 Ill. App. 3d 490, 290 N.E.2d 715; Crest Commercial, Inc. v. Union-Hall, Inc. (1968), 104 Ill. App. 2d 110, 243 N.E.2d 652.) Additionally, restrictive covenants in leases which encumber land other than that demised have also been upheld. (Farm Food Stores, Inc. v. Gianeschi (1943), 320 Ill. App. 582, 51 N.E.2d 792; Skelers v. Meyer (1927), 246 Ill. App. 18; Meridian Amusement Co. v. Home Theater Co. (1919), 215 Ill. App. 479; see also De Koven Drug Co. v. First National Bank (1975), 27 Ill. App. 3d 798, 327 N.E.2d 378.) Further, such covenants have been held to bind lessees of or successors in interest to the lessor who have taken property with notice of a restrictive covenant contained in a lease for adjoining property which also encumbers their land. Farm Food Stores, Inc. v. Gianeschi; Meridian Amusement Co. v. Home Theater Co.

In Meridian Amusement Co. v. Home Theater Co. (1919), 215 Ill. App. 479, the plaintiff, Meridian, subleased a building known as the Fischer Theater from the Barhydt-Hoeffler Company for the purpose of showing movies. The Meridian lease contained a restrictive covenant which prohibited Barhydt from utilizing a nearby building, known as the Lyric Theater, for the purpose of showing movies. Both the Fischer and Lyric theaters had originally been leased to Barhydt by the Danville Theater Company.

Subsequently, a group of 11 investors bought out the stock of Barhydt. They then formed a new corporation known as the Home Theater Company and caused Barhydt to assign its leases from Dan-ville and the lease to Meridian to Home Theater. Thereafter, Home Theater began showing movies at the Lyric Theater in violation of Meridian’s lease.

In upholding an injunction restraining Home Theater from conducting said movies, the court concluded that Home could not take the leases unencumbered with the restrictive covenants of the Meridian agreement. The Home Theater Company clearly had notice of the covenant and, as such, would be bound by it. See also Frye v. Par tridge (1876), 82 Ill. 267.

Similarly, in Farm Food Stores, Inc. v. Gianeschi (1943), 320 Ill. App. 582, 51 N.E.2d 792, the court upheld a restrictive covenant in a lease, relating to nearby property, against a lessee of said nearby property. The court concluded that where a subsequent lessee of a common lessor has notice of a restrictive clause in a lease of lessor’s nearby property, the lessee will be bound by said covenant even though there was no privity between the parties.

In view of the foregoing, defendant here may be held liable on the restrictive covenant by virtue of the fact that she took the demised premises with notice of the restrictive covenant contained in the lease of an adjoining premises. Her contention that the absence of any fixed duration in the covenant itself implicitly links the covenant’s duration to the “longevity” of the estate proceedings is unavailing. As a matter of construction, the clause must be held to be applicable throughout the entire duration of the lease absent explicit language to the contrary. Moreover, Clause 21(c) of the lease extends all covenants in the lease to the heirs, successors and assigns of the lessor.

Defendant’s citation of Postal Telegraph-Cable Co. v. Western Union Telegraph Co. (1895), 155 Ill. 335, is not of assistance. In Postal, the court merely mandated strict construction of a restrictive covenant which prohibited the lessor/owner from leasing the premises for use as a telegraph office. Since, in point of fact, the successor in interest to the lessor/owner utilized the property for this use, the restrictive covenant was not violated. In the instant case, defendant’s actions clearly violate the terms of the subject restrictive covenant.

Defendant filed a motion for involuntary dismissal in which she alleged that plaintiff had failed to exercise its option to renew the lease, in accordance with the provisions of paragraph 27, by providing lessor or its assigns with written notice of said renewal on or before 90 days prior to the expiration of the lease date. Defendant predicated this assertion on the fact that plaintiff’s suit, which was filed on June 9, 1981, only 81 days prior to the expiration of the lease term, merely alleged that plaintiff “intends” to renew the lease. In light of plaintiff’s failure to comply with the renewal notice provision, defendant asserted that the lease would expire within two months of the filing of suit and plaintiff would, consequently, suffer only minimal damages.

Plaintiff responded by filing an amended complaint with an attached document entitled “extension of lease.” Said document signed by Nancy Majzel, the present lessor, and dated July 29, 1981, a date subsequent to the filing of the motion, expressly accepted plaintiff’s request to renew the lease and waived the notification provisions of paragraph 27. After presentation of all evidence and arguments of counsel the motion was denied.

Defendant does not dispute that Nancy Majzel could waive a written provision inserted in the lease for her benefit. Such is the holding of the supreme court in Fuchs v. Peterson (1925), 315 Ill. 370, 146 N.E. 556. However, she contends that the subject option to renew did not constitute a present demise of an additional term, but, rather a covenant to grant an additional term on the conditions specified. As such, she concludes that plaintiff’s failure to give strict adherence to the terms of the lease caused the restrictive covenant to expire at the end of the original five-year lease term.

The lease between the estate and plaintiff provided that plaintiff had the option to extend the lease for five years at the end of the first five years. That the option to extend the lease five additional years is exclusively in the plaintiff and not in the lessor is significant. In J.B. Stein & Co. v. Sandberg (1981), 95 Ill. App. 3d 19, 419 N.E.2d 652, this court determined that a clause similar to the one in the instant case should be construed as an extension of a lease rather than a new letting.

Generally, a distinction is made between a provision in a lease for a renewal and a provision therein for the extension of the term at the option of the lessee, the courts treating the latter, upon the exercise of the privilege, as a present demise for the full term to which it may be extended and not a demise for the shorter period with a privilege for a new lease for the extended term. See generally 50 Am. Jur. 2d Landlord and Tenant sec. 1156 (1970).

Defendant relies on the language in the notice provision of paragraph 27 of the lease requiring notice of renewal to be given to “*** Lessor (or the assigns)” for her theory that she, as an assignee of the burdened estate, was entitled to notice of the lease extension. We interpret defendant’s position to be that it was the intention of the executrix in drawing the lease that if the original lessor, the executrix, was not in existence at the time for renewal, notice of intention to extend must be given the assigns of the estate. This of course would include defendant as a devisee of the estate.

The use of the parenthetical alternative “(or the assigns)” requires that notice be given to the party to whom the named lessor has conveyed the leased premises. This gives the language of the contract its plain and ordinary meaning. In re Estate of Savage (1979), 73 Ill. App. 3d 656, 392 N.E.2d 263.

This type of notice provision is for the benefit of the lessor at the time the option to extend is exercised, not for a former lessor who no longer has an interest in the property. The lessee must simply provide notice to whomever is then the lessor. (American Oil Co. v. Rasar (1957), 203 Tenn. 37, 46, 308 S.W.2d 486, 490.) Defendant’s construction would require plaintiff to provide notice to any assigns of the estate, no matter how numerous or how slight their interest in the property, as a precondition to extending the lease term. There is no reason to believe that the parties intended such a needlessly burdensome notice requirement.

Assuming, however, that the expression is capable of both constructions and is ambiguous, the burden of the ambiguity must fall upon its author, here the defendant. (Wachta v. First Federal Savings & Loan Association (1981), 103 Ill. App. 3d 174, 430 N.E.2d 708.) Vague terms, susceptible to differing interpretations, will be construed against the drafter. Bank of Silvis v. Boultinghouse Auction Co. (1979), 71 Ill. App. 3d 98, 389 N.E.2d 267.

In sum, we hold that defendant was personally liable on the lease as she was neither given the power to lease under the will nor by a court. Nancy Majzel could and did waive the timely giving of notice of intention to extend the lease by the lessee. Defendant was not entitled to notice of the extension because she was neither the lessor under the lease or an assign of the lessor as the term was used throughout the lease.

The judgment of the circuit court of Lake County is affirmed.

Affirmed.

SEIDENFELD, P.J., concurring.

JUSTICE UNVERZAGT,

dissenting:

I agree the defendant was personally bound by the restrictive covenant, but I would not affirm the injunctive relief afforded by the trial court’s judgment because I find under the facts of this case, the plaintiff failed to properly exercise its option to renew and, thus I believe, defendant was bound by the covenant only until the end of the original five-year lease period; that is, until August 31,1981.

The “lessor” at the time the lease was entered into was Olga Fiocchi as executrix of the estate of Frank Fiocchi. By the terms of clause 27, notice of the lessee’s intent to exercise its option to renew was required to be given to “Lessor (or its assigns) in writing on or before ninety (90) days prior to the expiration of the first five (5) year term ***.” (Emphasis added.) Although it is true, as plaintiff argues, that parties to a written contract may waive performance of a condition in a- contract that was inserted for their benefit (Fuchs v. Peter son (1925), 315 Ill. 370, 374-76), the fact remains that the notice provision was inserted for the benefit of Olga Fiocchi as well, and she did not waive the notice requirement. The original “lessor” was no longer in existence, the estate having been closed. Accordingly, notice was to be given in writing to “its assigns.” The assigns of the lessor were Nancy Majzel and Olga Fiocchi by definition; to-wit: an assign includes all those who take either immediately or remotely from an assignor whether by conveyance, devise, descent or act of law. Sauls v. Cox (1946), 394 Ill. 81, 88-89.

Plaintiff’s president, Susan Stauffer, testified that in March of 1981, she heard rumors that a second beauty salon was to be open in the shopping center. She then called Olga Fiocchi, who advised her that the rumor was true. Stauffer testified she questioned Fiocchi: “ ‘But what about my lease, it reads that there cannot be another beauty salon.’ And she said, ‘You better get a hold of your lawyer.’ And that was the end of the conversation.” Stauffer also testified she did not notify Fiocchi that she was going to renew her lease with Majzel for another five-year term; the five-year “Extension of Lease” at $400 per month rental between plaintiff and Majzel was executed by Majzel on July 29, 1981. Without notice to Fiocchi, the effect of the restrictive covenant clause in the lease must be construed to mean that Majzel, as lessor under the second five-year lease, would not lease any of her other stores in the Old Elm Shops shopping center for the purpose of a beauty salon.

It is established that an injunction is an exceptional remedy which is not granted as a matter of course, but with great caution and only when plaintiff’s right to such relief is clearly established. (Board of Education v. Eckmann (1982), 103 Ill. App. 3d 1127, 1130.) The grant or denial of an injunction is within the discretionary powers of the court, and its decision on the matter will not be reversed unless an abuse of discretion is shown. (Plasti-Drum Corp. v. Ferrell (1979), 70 Ill. App. 3d 441, 452.) Plaintiff here failed to give notice of its intent to exercise its option to renew to Olga Fiocchi who, as one of the lessor’s two assigns, was entitled to such notice under the terms of the plaintiff’s lease. Accordingly, defendant was bound by the terms of the restrictive covenant clause only until the expiration date of the original lease, August 31, 1981, and the trial court’s injunction restraining defendant’s use of the property until August 31, 1986, was, I believe, an abuse of its discretion. Therefore, the judgment of the trial court in entering the injunction should be reversed and the injunction order vacated.

I therefore dissent from the majority opinion.


source: Caselaw Access Project

author: JUSTICE SCOTT PRESIDING JUSTICE BARRY,

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PERRY FOX, Defendant-Appellant.
    Third District
    No. 82—32
    Opinion filed December 30, 1982.
    Rehearing denied January 26, 1983.

      BARRY, P.J., dissenting.
    Robert Agostinelli and Thomas A. Lilien, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    John A. Barra, State’s Attorney, of Peoria (John X. Breslin and Kenneth A. Wilhelm, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE SCOTT

delivered the opinion of the court:

Following a jury trial, the defendant, Perry Fox, was convicted of aggravated arson and sentenced to a minimum term of six years imprisonment. In this appeal the defendant contends that the trial court erred in denying his motion to suppress his confession. He also contends that even if his confession was properly admitted into evidence, he was denied a fair trial because references in the confession to the sexual gratification he received from setting fires were irrelevant and highly prejudicial.

A fire broke out on the second floor of the Continental Regency Hotel in Peoria, Illinois, during the night of April 14-15, 1981. In the course of investigating this fire, Peoria police detective Dean Dear-born and Peoria Fire Department investigator Ernest Russell spoke to the defendant, an employee of the hotel, in the main lobby around 5:30 a.m. The defendant was asked about his whereabouts at the time of the fire, his working hours and duties, the identity of his coworker, and was asked to describe any suspicious persons he might have seen in the hotel that night. At the conclusion of this conversation, which lasted about 15 minutes, Detective Dearborn and investigator Russell told the defendant that they might want to talk to him again.

Later in the day on April 15, officers from the police and fire departments were given the use of a hotel room in which to conduct interviews of hotel employees and guests. A total of six or seven guests and seven or eight employees, including the defendant and a coworker, David Banks, were interviewed.

When the interviews began, the officers had a number of suspects, including the defendant, Banks, a hotel guest and an individual who had argued with someone at the front desk on the night of the fire.

The defendant was directed by his boss to go to Room 3702 of the hotel to be interviewed. Two fire department investigators, Captain Parker and Captain Wolgan, and two police officers, Detective Dear-born and Officer Ulrich, questioned the defendant from approximately 5:05 p.m. until 7:30 p.m. None of the officers was in uniform, although all introduced themselves to the defendant as police or fire department investigators.

During the questioning, various discrepancies between the defendant’s statements and those of David Banks became apparent. For example, Banks reported that he and the defendant had smoked in the Left Bank area of the hotel on the night in question. The defendant denied smoking at all that night. The defendant also stated that he did not return to the second floor after he and Banks left the Left Bank area and went to the basement where they ate lunch and then set up a room for hotel guests. The statement was refuted by a paper sack with a sales receipt inside found in front of Room 2206. The receipt had the name “Fox” on it. Fire investigator Wolgan checked with the Avanti store and found that no one other than the defendant had ordered a sandwich for delivery to the hotel on the night of April 14. Additional discrepancies were evident when the defendant stated that he and Banks were together at all times; whereas Banks told the officers that he and the defendant were not together the entire evening.

The defendant was confronted with the discrepancies between his story and those of other employees. He was asked if he would be willing to take a polygraph examination. It was explained to him that the test was voluntary and would aid the police in their investigation by clearing up discrepancies in the statements they had taken. At the suppression hearing, the defendant admitted that he voluntarily agreed to take the polygraph examination at a private examiner’s office. Both Captain Parker and Detective Dearborn testified that the defendant was not the only suspect at that time.

The three officers who were present during the questioning of the defendant in the hotel room and who testified at the suppression hearing stated that the defendant was free to leave the hotel room at any time and that no threats or promises were made to him. The defendant testified that he asked if he could go but that his questions were ignored. The defendant was offered something to eat several times throughout the evening and soda crackers, cheese and peanut butter were brought to the hotel room. The defendant declined food but drank a soda.

During the 45 minutes wait before the polygraph examination could be arranged the television set was turned on and the defendant watched television. The defendant never asked that the interview be discontinued, nor did he claim that he was ill.

Captain Parker offered to drive the defendant to the polygraph examiner’s office. The defendant accepted the offer and at approximately 9 p.m., he arrived with officers Parker and Dearborn at the firm of Dennis Jenkins and Associates. Michael Terrell, an employee of the firm who administered the polygraph test to the defendant, was briefed by Captain Parker concerning the fire and the discrepancies between the defendant’s statements and those of others.

Terrell administered the series of three minute tests to the defendant after first reading him Miranda-type warnings which are customarily given to all persons before a polygraph examination. The defendant read the rights form and signed it.

About IV2 to 2 hours after beginning the examination, Terrell exited his office and informed Detective Dearborn that the defendant had made an oral admission and wanted to speak to him. Dearborn and Parker had remained in an adjoining room during the examination.

Dearborn and Terrell entered Terrell’s office, at which time Dear-born informed the defendant that he was no longer free to go and that he was under arrest for arson. The defendant was informed of his Miranda rights. He replied that he understood them and that he wished to speak to Dearborn without an attorney being present. Terrell left the office and the defendant then made an oral statement to Dearborn.

Terrell then returned to his office, and he and Dearborn elicited more details from the defendant concerning how the fire was started. Dearborn asked the defendant if he was willing to give a written statement. When the defendant agreed to do so, he was taken to the police station by officers Dearborn and Ulrich around 12:30 a.m. After once again being informed of his Miranda rights and waiving them, the defendant gave a written statement.

The 19-year-old defendant, a high school graduate with no prior criminal record, contends on appeal that his fourth amendment rights were violated when he was improperly subjected to custodial interrogation in the hotel room, since he had not been advised of his Miranda rights. He further contends that his inculpatory statement to the polygraph examiner was tainted as the fruit of this illegal seizure. Thus, he claims the trial court erred in denying his motion to suppress that statement. We ágree with the defendant’s contentions.

The trial court found that the defendant was significantly restrained in the hotel room due to his youthful age, his inexperience in criminal matters, the presence of four investigators and the fact that he had been directed to go to the hotel room by his boss. However, the court also found that the defendant was not in custody or under arrest while in the hotel room, since he would have been allowed to leave had he expressed a desire to do so. In addition, the court held that after volunteering to take the polygraph examination, the defendant was not restrained during the 45-minute wait while the examination was being scheduled. Lastly, the trial court determined that the defendant voluntarily made his statement to the polygraph examiner after a knowing and intelligent waiver of his Miranda rights.

We now examine these findings and our view of the record before us in light of relevant case law. The detention of a person by the police for custodial interrogation intrudes so severely on interests protected by the fourth amendment that it necessarily triggers the traditional safeguards against illegal arrest. (Dunaway v. New York (1979), 442 U.S. 200, 60 L. Ed. 2d 824, 99 S. Ct. 2248.) Where a defendant is detained without probable cause, the fruits of the illegal detention must be suppressed, including any inculpatory statements made by the defendant as a result of the detention. Dunaway v. New York.

We agree with the trial court’s finding that the defendant was “significantly restrained” during the interrogation in the hotel room. Unlike the trial court, we conclude that this restraint or detention continued during the 45-minute wait while the polygraph examination was being scheduled. The critical inquiry thus becomes whether this detention was illegal. If so, the defendant’s fourth amendment rights were violated, and the defendant’s inculpatory statements to the authorities must be suppressed as the fruits of this illegal detention.

We hold that the defendant was illegally seized and detained for custodial interrogation when he was questioned by the four investigators. More than a limited intrusion upon the 19-year-old defendant’s liberty was involved where he was told to report to the room for questioning by his boss, an authority figure, and where the defendant had no prior criminal record. A significant deprivation of the defendant’s freedom occurred when the investigating officers focused their inquiry upon the defendant as opposed to other suspects and repeatedly confronted the defendant with discrepancies in his statements. (People v. Townes (1982), 91 Ill. 2d 32, 435 N.E.2d 103.) Although the investigators testified that the defendant was free to leave the hotel room as opposed, for example, to the defendant in Dunaway who would have been physically restrained if he had tried to escape, it is difficult to imagine that the defendant, a stranger to criminal investigatory techniques, would have felt free to leave. The uncommunicated ideas or intentions of the investigators cannot be ascribed to the defendant. People v. Dowdell (1980), 81 Ill. App. 3d 266, 401 N.E.2d 295.

Because the officers clearly lacked probable cause to arrest the defendant when they questioned him in the hotel room, we hold that the defendant was illegally seized within the meaning of the fourth amendment.

How long did this illegal detention last? The questioning in the hotel room lasted from approximately 5 p.m. until 7:45 p.m. We have previously indicated that we disagree with the trial court’s determination that the restraint upon the defendant ended after he agreed to take a polygraph examination. During the 45-minute wait before arrangements for the examination could be made the defendant remained in the hotel room with at least two of the investigating officers. Thus the illegal detention continued during this period. We hold that it persisted throughout the evening, including the time spent traveling to the polygraph examiner’s office in a police car (see Dunaway v. New York (1979), 442 U.S. 200, 60 L. Ed. 2d 824, 99 S. Ct. 2248, and People v. McMahon (1980), 83 Ill. App. 3d 137, 403 N.E.2d 781) and the period of time devoted to the polygraph examination. The polygraph examiner, Terrell, acted as an agent for the police in questioning the defendant and administering the polygraph tests. As Terrell admitted on the witness stand, he employed psychological tactics and ploys in an attempt to solicit more information from the defendant. Because the defendant made an inculpatory statement to Terrell which was followed shortly thereafter by the defendant’s arrest and his oral confession to Detective Dearborn, we conclude that the defendant’s illegal detention continued throughout the evening, including the period of time during which he made his incriminating statements.

Remaining for our consideration is the question of whether the unconstitutional police conduct so tainted the defendant’s inculpatory statements as to render them inadmissible at the defendant’s trial. The fact that Miranda warnings were given, first by Terrell, then by Detective Dearborn before the defendant’s oral confession, and again by another officer at the police station before the defendant gave a written statement, is not sufficient, alone, to attenuate the taint of the police misconduct. (Dunaway v. New York (1979), 442 U.S. 200, 60 L. Ed. 2d 824, 99 S. Ct. 2248; Brown v. Illinois (1975), 422 U.S. 590, 45 L. Ed. 2d 416, 95 S. Ct. 2254.) In Brown v. Illinois, the Supreme Court recognized three additional factors which must be considered in determining whether confessions were obtained as a result of the prior illegal seizure of the defendant by the police: (1) the temporal proximity of the arrest and the confession; (2) the presence of intervening circumstances; and (3) the purpose and flagrancy of the official misconduct. 422 U.S. 590, 603-04, 45 L. Ed. 2d 416, 427, 95 S. Ct. 2254, 2261-62.

The burden of showing admissibility rests on the prosecution. This burden was not met in the present case. Having recognized that Miranda warnings were given but fully cognizant of the fact that the giving of these warnings alone is insufficient to dissipate the taint of the defendant’s illegal seizure upon his subsequent confession, we turn to the remaining factors discussed in Brown v. Illinois.

Temporal proximity is present here. Once the defendant came to be in custody in the hotel room, shortly after 5 p.m., he was in the company of the investigating officers or their agent until he made his inculpatory statement. Lengthy questioning took place, with only a brief respite in the hotel room while the arrangements for the polygraph examination were made and for a second short interval while the defendant was driven to the examiner’s office. These interruptions did not cause a break in the temporal proximity of the defendant’s illegal detention and his confession.

The third Brown v. Illinois factor, that of presence of intervening circumstances, is missing in the present case. Certainly the 45-minute break in the hotel room and the short ride to the examiner’s office do not qualify as intervening factors of any significance. (People v. Sturdivant (1981), 99 Ill. App. 3d 370, 425 N.E.2d 1046; People v. McMahon (1980), 83 Ill. App. 3d 137, 403 N.E.2d 781.) Nor do we believe the polygraph examination itself can be said to be a significant intervening factor, since we conclude that the defendant’s consent to the examination was itself tainted by his illegal seizure.

The final factor is the flagrancy or purposefulness of the police misconduct. We agree with the trial court that the police actions cannot be characterized as flagrant. However, they were purposeful in that they appear to have been an “expedition for evidence.” Brown v. Illinois (1975), 422 U.S. 590, 605, 45 L. Ed. 2d 416, 428, 95 S. Ct. 2254, 2262; People v. Townes (1982), 91 Ill. 2d 32, 435 N.E.2d 103.

For the foregoing reasons, we hold that the defendant’s inculpatory statements to the police were the fruit of his prior illegal seizure. Thus, the trial court erred in denying the defendant’s motion to suppress those statements.

Our holding today eliminates any need to discuss the remaining issue raised by the defendant. Accordingly, the judgment of the circuit court of Peoria County is reversed.

Reversed.

STOUDER, J., concurs.

PRESIDING JUSTICE BARRY,

dissenting:

I disagree with the decision of the majority. As I view the facts and the applicable law, the trial court did not err in ruling that defendant’s constitutional rights were not violated, and the trial court did not err in admitting defendant’s confession into evidence.

The determinative issue is whether defendant was illegally detained for custodial interrogation at the hotel before he was advised of his constitutional rights and before the police had probable cause to arrest him. The United States Supreme Court has defined custodial interrogation as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” (Miranda v. Arizona (1966), 384 U.S. 436, 444, 16 L. Ed. 2d 694, 706, 86 S. Ct. 1602, 1612.) The application of this definition in particular' fact situations has provided must grist for the judicial mill. In People v. Savory (1982), 105 Ill. App. 3d 1023, 435 N.E.2d 226, the court comprehensively summarized post-Miranda decisions and detailed the criteria to be used by reviewing courts as follows:

“In determining whether a statement was made in a custodial setting, the court must look to all of the circumstances surrounding the questioning, with no single factor deemed controlling, and then objectively evaluate whether a reasonable, innocent person would have believed he was free to leave or was expressly or impliedly bound to remain in the presence of police. [Citations.]
Numerous factors are to be considered in this inquiry: the location [citation], time [citation], length [citation], mood and mode [citation] of the interrogation; the number of police officers present [citations] and the presence or absence of friends or family of the accused [citation]; any indicia of formal arrest of the subject including physical restraint, show of weapons or force, booking, fingerprinting or informing the person he is under arrest [citation]; the manner in which the person questioned got to the place of interrogation, i.e., voluntarily on his own, in response to a police request, or on a verbal command indicating compulsion [citation]; whether he voluntarily assists police in their investigation [citation]; whether the subject is allowed to walk within and from the location of the interrogation unaccompanied by police [citation]; and the age, intelligence and mental makeup of the accused [citation].” 105 Ill. App. 3d 1023, 1028, 435 N.E.2d 226, 230.

Turning to the case at bar, I think it most significant that the interrogation of the defendant took place in a room at the hotel where defendant was employed and where the crime had occurred. Defendant was initially questioned at the scene of the fire at 5:30 a.m. and then allowed to go home. He returned to work in the late afternoon and was told by his employer, not by the police, to go to Room 3702 to be interviewed. I believe it significant to note that every single case relied upon by the majority involved an interrogation that took place at a police station. It is surely much more likely that a defendant is in police custody when the police put'him in a car and transport him to the police station for an interview.

Although the majority expressly hold that this defendant was “illegally seized,” apparently at the point when the officers “focused their inquiry upon the defendant,” I believe such a holding is unsupportable under the circumstances of this case. Here defendant was interviewed in a hotel room; he entered that room on his own volition after being instructed to do so by his employer, not by police officials; and the point of the questioning was to obtain information concerning the discrepancies between defendant’s previous statements and those of other witnesses. The police officers testified that defendant was not the main suspect, that they could not tell who was lying and who was telling the truth, that defendant was at all times free to leave, that he was never threatened or given promises, and that he was offered food and drink several times. Any pressure or intimidation felt by defendant as a result of his employer’s conduct cannot be charged to the police. The fourth amendment protects citizens against police misconduct, not misconduct of private citizens. Contrary to the majority view, I believe there was no intrusion by the State upon defendant’s liberty when his employer told him to report to a hotel room for questioning.

In the course of the questioning in the hotel room, the police asked defendant if he would be willing to take a polygraph examination to help clear up the discrepancies in the stories of the various employees. He was advised that the test was not mandatory but completely voluntary. Defendant admitted at the suppression hearing that he voluntarily agreed to go to the private office of the polygraph examiner to take the test. He was offered a ride by one of the officers. Again, defendant was not required to go with the officer, but he agreed to ride with him. The polygraph examination took place in a private office, not in a police station or other public building. An interval of about IV2 hours (from 7:30 p.m. to 9 p.m.) separated the conclusion of the questioning of defendant at the hotel room and his arrival at the examiner’s office. During that time defendant watched television in a hotel room. None of this activity constituted a custodial detention of defendant by police. In my view, the fact that he was in the presence of police officers in the hotel where he was employed did not amount to arrest or police detention.

According to the evidence at the hearing, at the precise point when defendant became a prime suspect, after he had made some admissions to the examiner without any officers being present, the attending officer was then notified and entered the examining room and told defendant that he was under arrest, and advised him of his Miranda rights. The attending officer was then given an oral statement by defendant after defendant indicated that he did not want an attorney. The officer requested a written statement, and defendant agreed. Such conduct on the part of the police was appropriate. (See People v. Savory (1982), 105 Ill. App. 3d 1023, 435 N.E.2d 226.) In Savory, the court noted that after 2xk hours of interrogation, the defendant was “in custody” for purposes of Miranda warnings when the officers began to doubt the defendant’s account and started to ask express questions that they should have known were reasonably likely to elicit an incriminating response. Applying that test to the instant case, there is nothing to indicate that the police asked questions which were expected to elicit an incriminating response until after defendant was questioned by the examiner. That, of course, was the point where the Miranda warnings were given by the police, the point where the police interview ceased being investigatory and became a custodial interrogation. (See People v. Bradford (1981), 97 Ill. App. 3d 998, 423 N.E.2d 1179.) Considering the testimony which tended to support the trial court’s finding that the defendant was not illegally detained for custodial interrogation, I would rule that the decision of the trial court was not manifestly erroneous.

Having found no illegal detention, I would hold that the defendant’s confession was admissible at his trial. As I see it, the holding of the majority poses unnecessarily grave problems for those charged with solving crimes. Certainly not every investigatory inquiry, merely because made by a police officer, is attended by the mischief which the fourth, fifth, sixth and fourteenth amendments seek to avoid. Finally, the line must be drawn between voluntary, consensual confessions which are the product of “reasonable” police conduct and those confessions obtained by “unreasonable” police activity. That line is not a bright one. Each case must be carefully scrutinized in light of all surrounding circumstances (Schneckloth v. Bustamonte (1973), 412 U.S. 218, 36 L. Ed. 2d 854, 93 S. Ct. 2041), and we should affirm the trial court’s determination of voluntariness unless it is clearly unreasonable. People v. Devine (1981), 98 Ill. App. 3d 914, 424 N.E.2d 823.

With these thoughts in mind, I have searched the record before us and must conclude that no constitutional violation can be found. There is nothing in this case to indicate that the police treated defendant improperly. There was no light shining in his eyes, no deprivation of food or drink for long periods of time, no display of weapons, no threats or promises or bribes. The facts indicate nothing more than a questioning of defendant in the course of a police and fire investigation, asking for more details and additional information concerning matters he had previously told them and things they had discovered during the day. When the police could not determine who was telling the truth and who was not on the basis of the interview, they suggested a lie detector test.

By my view the majority opinion stretches the reader’s credulity in finding that the defendant was illegally restrained while he watched TV in a hotel room, while he rode to the examiner’s office, and while he took the polygraph examination — in the face of defendant’s own testimony that he took the test voluntarily, knowing that he did not have to. The only reasonable implication from defendant’s testimony is that he knew he did not have to go with the police for the polygraph test. Since the defendant’s testimony amounted to an admission against his interest, it must be given considerable weight in support of the trial court’s ruling.

In my judgment, the cases relied upon by the majority can all be distinguished from the case at bar and should not be considered controlling. Two important distinguishing elements of the case before us are (1) that the questioning occurred at the scene before defendant was a prime suspect and (2) that defendant himself stated that he voluntarily agreed to go to the polygraph tester’s office. In every one of the cases cited by the majority, the defendant was taken by the police to the police station and questioned at the station before the police had probable cause to arrest him, and in all those cases, the courts concluded that a reasonable person, under the circumstances, would have considered himself under restraint, not free to leave, and therefore that an illegal detention occurred. In People v. Townes (1982), 91 Ill. 2d 32, 435 N.E.2d 103, the defendant “willingly” accompanied the police to the station, in another town, but was questioned there over a 12-hour period without the police having probable cause for an arrest. In Townes, it was the length of time involved that was perhaps most critical. I believe the circumstances of the instant case, unlike those relied upon by the majority, are not consistent with a finding that defendant was illegally seized or detained prior to his confession.

Defendant also contends that reversible error occurred when the prosecution introduced into evidence defendant’s typewritten statement of April 16, 1981, where, in addition to admitting that he started the fires in question, defendant stated that he receives sexual gratification or excitement from fires and that he had set other fires to bum leaves or weeds. Defendant sought to have the comments relating the sexual aspects of fires excised from the statement on the ground that they were irrelevant and prejudicial, but the court refused to do so. We think the statements were relevant to the question of defendant’s motive, even though defendant denied that sexual gratification was his motive here. The trial court must weigh the probative value of such evidence against its prejudicial effect. (People v. Monroe (1977), 66 Ill. 2d 317, 362 N.E.2d 295.) We cannot say that the court abused its discretion in this case.

For the reasons stated, I would affirm the circuit court of Peoria County in its denial of the motion to suppress defendant’s confession.


author: JUSTICE UNVERZAGT

text:
    CULLIGAN ROCK RIVER WATER CONDITIONING COMPANY, PlaintiffAppellee and Cross-Appellant, v. ORVAL L. GEARHART III et al., Defendants-Appellants and Cross-Appellees.
    Second District
    No. 81—1034
    Opinion filed December 9, 1982.

      William E. Arnold, of Besse, Fry, Arnold & Brooks, of Sterling, for appellants.
    Patrick E. Ward, of Dixon, for appellee.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

Plaintiff, Culligan Rock River Water Conditioning Company, instituted this action for replevin to recover possession of certain of its property unlawfully held by defendants, Orval L. Gearhart III and Edward Gearhart, and to recover damages from defendants for the use of said property. After the hearing, the trial court ordered the issuance of a writ of replevin for the property described in the complaint and assessed damages against defendants in the amount of $6,000 plus costs. The trial court granted a rehearing and modified its original award and assessed damages against defendants in the amount of $3,720 plus costs.

Defendants appeal contending: (1) plaintiff has an affirmative duty to mitigate its damages, (2) defendants, as corporate stockholders, were not liable for the debts of their corporation and (3) defendants were not unjustly enriched so as to justify an award of damages against them. Plaintiff cross-appeals and contends that the trial court erred in modifying and reducing its original damage award.

The record establishes that, on May 13, 1976, a company known as Dawson’s Servisoft, Incorporated (Dawson), assigned all contracts and agreements between Dawson and its customers to plaintiff. This assignment included several contracts executed by and between Dawson and a partnership known as 1249 Galena Motel Limited Partnership for the rental and maintenance of several water softener units at a Ramada Inn in Dixon, Illinois. On April 7, 1976, the 1249 Galena Partnership assigned its right, title and interest in that Ramada Inn to defendants, effective June 1, 1976. The complaint sought issuance of a writ of replevin for recovery of a water softening unit leased and delivered to the Ramada Inn on July 2, 1976, and an assessment of damages for rental thereof.

At the first hearing on the matter defendants failed to appear and, in consequence, the evidence was limited to the testimony of the plaintiff’s local manager, Ken Sippel. Judgment was entered in favor of the plaintiff in the amount of $6,000, and the trial court ordered the issuance of a writ of replevin for the subject water softener. Thereafter, pursuant to defendants’ motion, the trial court granted a new hearing on the matter.

At the second hearing, the testimony given by Mr. Sippel at the prior hearing was incorporated therein and constituted plaintiff’s entire case in chief. Sippel testified that, on or about July 2, 1976, he installed a water softening unit at the Ramada Inn restaurant in Dixon pursuant to the request of Bill Schell, an employee at the Ramada. Said unit replaced the existing water softener, previously installed by Dawson, which had ceased to function. Sippel was told by Schell that a Mr. Gearhart had directed Schell to have plaintiff replace the unit. One or two days after the unit was installed, Sippel requested that Edward Gearhart sign a rental contract for the water softener. Gearhart refused on the basis that his counsel had advised him not to sign any contract. Notwithstanding the absence of a contract, plaintiff serviced the unit on at least three occasions subsequent to installation. Sippel testified that the reasonable rental value for the unit ranged from $60 in 1976 to $120 in 1980 and 1981, and that defendants had not paid any rent whatsoever on the unit; said rates being monthly charges.

Orval Gearhart III testified that on June 1, 1976, he and his brother, Edward Gearhart, acquired the beneficial interest in the subject Ramada Inn. Gearhart then attempted to introduce testimony to the effect that on June 1, and thereafter, the Ramada Inn was operated by a corporation known as Dixon Corporate Systems, Ltd. Orval and Edward Gearhart were the incorporators of said corporation and were the sole shareholders thereof. This testimony was interposed in an attempt to establish that the corporation, rather than the defendants individually, would be liable for any damages in connection with the water softening unit. The trial court refused to allow the admission of any testimony regarding the corporate entity. The court concluded that defendants were extremely dilatory in failing to interpose this theory earlier and any further delay in the proceedings was unwarranted.

Mr. Gearhart also testified that on June 30, 1977, he and Edward assigned their beneficial interest in the subject property to Orval Gearhart, Jr., defendants’ father. Since that date Edward had had no interest in the property. Gearhart stated that from June 1977, until September 10, 1981, the restaurant was operated by various third parties under contracts for purchase or lease arrangements. Orval or his father did operate the restaurant periodically during that time.

Edward Gearhart testified that he did not receive any demands for rent on the unit until after he had assigned his beneficial interest to his father. He did indicate, however, that he refused to sign a contract for the unit which had been tendered by Ken Sippel. Finally, he did not remember telling Bill Schell to obtain the subject unit from plaintiff. Orval Gearhart, Jr., testified and substantiated various portions of the defendants’ testimony.

After presentation of all evidence, the trial court modified its prior judgment and reduced the damage assessment against defendants from $6,000 to $3,720. The court concluded that both parties should have attempted to mitigate their damages soon after the initial installation of the unit. Consequently, the court assessed damages against the defendants on the basis of the original rental value of the unit ($60 per month), and refused to compensate the plaintiff for the increased rental amount which it might have received in subsequent years. These appeals followed.

Defendants contend that plaintiff’s four-year delay in filing suit to recover its property clearly constituted a failure to mitigate damages. As such, they urge that the plaintiff is not entitled to any damages whatsoever. In contrast, plaintiff asserts that mitigation of damages does not apply to replevin actions and, consequently, the trial court erred in reducing the original damage award.

Section 23 of the replevin act (Ill. Rev. Stat. 1979, ch. 119, par. 23, recodified at Ill. Rev. Stat. 1981, ch. 110, par. 19—125) provides that a plaintiff who recovers a judgment in replevin shall recover damages for the detention of the property while the same was wrongfully detained by the defendant. Illinois courts have held that damages awarded under this provision are intended to provide full indemnity for damages suffered. (Cottrell v. Gerson (1939), 371 Ill. 174; Welch v. Brunswick Corp. (1973), 10 Ill. App. 3d 693, aff’d in part and rev’d in part on other grounds sub nom. S. T. Enterprises v. Brunswick Corp. (1974), 57 Ill. 2d 461.) Where the property is recovered, plaintiffs are entitled to the reasonable value of the use of said property during the period of wrongful detention as well as depreciation in the value of the property while unlawfully detained. Cottrell v. Gerson (1939), 371 Ill. 174; Welch v. Brunswick Corp. (1973), 10 Ill. App. 3d 693, rev’d on other grounds; Larson v. Mobile Home Finance Co. (1967), 83 Ill. App. 2d 210; see also S. T. Enterprises v. Brunswick Corp. (1974), 57 Ill. 2d 461.

Here, the trial court originally based its damage award on Ken Sippel’s testimony regarding the reasonable rental value from 1976 through 1981. No damages for depreciation in value of the property were included. In view of the foregoing cases, this award was not unreasonable. Thereafter, however, the trial court reduced the damages in light of plaintiff’s failure to mitigate its damages by not filing suit to recover its property earlier. Notwithstanding plaintiff’s assertions to the contrary, we deem this reduction in damages to be warranted.

As a general proposition, the law imposes upon a party, injured from another’s breach of contract or tort, the active duty of making reasonable exertions to render the injury as light as possible. If, by this negligence or wilfulness, he allows the damages to be unnecessarily enhanced, the increased loss, that which was avoidable by the performance of his duty, falls upon him. (See, e.g., Ashe v. Sunshine Broadcasting Corp. (1980), 90 Ill. App. 3d 97; Smiley v. Manchester Insurance & Indemnity Co. (1977), 49 Ill. App. 3d 675, aff’d (1978), 71 Ill. 2d 306; Elgin, Joliet & Eastern Ry. Co. v. American Commercial Line, Inc. (N.D. Ill. 1970), 317 F. Supp. 175; Fruehauf Trailer Co. v. Lydick (1944), 325 Ill. App. 28.) This doctrine, known as mitigation of damages, applies in virtually every type of case in which the recovery of a money judgment or award is authorized. (Kelly v. Chicago Park District (1951), 409 Ill. 91.) Although an action in replevin is primarily one for possession (Harris-Intertype Corp. v. Donley Bindery Co. (1975), 26 Ill. App. 3d 140, a money judgment is clearly authorized under the replevin act (Ill. Rev. Stat. 1979, ch. 119, pars. 23, 24, recodified at Ill. Rev. Stat. 1981, ch. 110, pars. 19—125, 12—126). Therefore, the trial court’s application of the mitigation of damages doctrine to this action was not unreasonable. The doctrine has been applied in replevin cases from other jurisdictions. See, e.g., Hoff v. Lester (1946), 25 Wash. 2d 867, 168 P.2d 409, although we find no Illinois case on point.

Defendants’ contention that plaintiff is not entitled to any damages whatsoever, is not well taken. The evidence establishes that defendants had the benefit of the subject property for five years without paying any rental thereon. Moreover, they refused to return the property despite numerous demands made upon them therefor. Consequently, while plaintiff is not entitled to the full rental value of the property due to its failure to mitigate damages, defendants should be required to pay a reasonable rental for use of the property.

Defendants next assert that they, are not liable on any implied contract with plaintiff since the Ramada Inn was operated by their corporation, Dixon Corporate Systems, Ltd., rather than by the defendants individually. Defendants appear to ignore the fact that the trial court excluded substantially all evidence on this issue. Moreover, the trial court sustained plaintiff’s objections to the testimony on this issue which had been admitted, although said testimony was not specially stricken. As such, defendants are deemed to have waived any error relating to the trial court’s exclusion of said evidence. 87 Ill. 2d R. 341.

Even if the issue was not waived, the trial court was justified in excluding that evidence. The court reasoned that defendants did not include this theory as an affirmative defense in their motion to dismiss, their answer or at the first hearing on the matter. Further, the inclusion of that theory would have necessitated a postponement of the second hearing in order for plaintiff to prepare its case in connection with the new theory. The court was correct in this regard in light of the fact that the second hearing itself was necessitated by defendants’ failure to appear at the first hearing. Consequently, the court was justified in concluding that any facts constituting a defense must be plainly set forth in the answer and a defense not properly pleaded is deemed waived. (M. Loeb Corp. v. Brychek (1981), 98 Ill. App. 3d 1122; Kermeen v. City of Peoria (1978), 65 Ill. App. 3d 969; see also Ill. Rev. Stat. 1979, ch. 110, par. 43(4), recodified at Ill. Rev. Stat. 1981, ch. 110, par. 2—613(d).) Additionally, defendants made no attempt to present a motion for an amendment of their pleadings. Even if such a motion had been made, the trial court would have been justified in denying it due to defendants’ dilatory behavior. United Air Lines, Inc. v. Conductron Corp. (1979), 69 Ill. App. 3d 847.

It is evident that defendants’ assertion does not succeed even if we assume that enough evidence was presented in the record to establish that defendants’ corporation ran the Ramada Inn. The best that defendants could hope to establish is that the corporation acted as an agent on behalf of defendants as owners of the property. It is axiomatic that the acts of an agent are considered to be those of the principal (John Deere Co. v. Metzler (1964), 51 Ill. App. 2d 340), and contracts executed by an agent in managing the property of its principal are binding on said principal. Roscoe Co. v. Lewis University, College of Law (1979), 79 Ill. App. 3d 1098.

Defendants finally urge that they are not liable for rent on the water softening unit by virtue of the fact that they did not receive the benefit of said unit. They base this contention on the fact that the restaurant portion of the Ramada Inn was primarily operated by a series of third parties who ran the restaurant pursuant to lease agreements or contracts for purchase. No documents or testimony were introduced which would indicate the existence of assignments of the rights and liabilities to the subject water softening unit running from defendants or their successors to said third parties. Absent said assignments, defendants would still be liable for the unit.

Although it appears the defendants assigned their beneficial interest in the property to their father in 1977, it is well established that a defense not properly pleaded is deemed waived, although it may appear to be within the evidence. (M. Loeb Corp. v. Brychek (1981), 98 Ill. App. 3d 1122; Economy Truck Sales & Service, Inc. v. Granger (1965), 61 Ill. App. 2d Ill.) Therefore, defendants have waived the issue of ownership. In any event, this issue was not specifically raised on appeal.

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

Judgment affirmed.

HOPF and NASH, JJ., concur.


text:
    JOHNNY E. CUERTON, Plaintiff-Appellant, v. ABBOTT LABORATORIES, INC., Defendant-Appellee.
    Second District
    No. 82—229
    Opinion filed December 9, 1982.
    G. Douglas Grimes, of Stone & Grimes, of Waukegan, for appellant.
    Steven L. Larson, of Wildman, Harrold, Allen & Dixon, of Waukegan, for appellee.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

The plaintiff, Johnny E. Cuerton, filed a complaint at law against the defendant, Abbott Laboratories, Inc. (Abbott), alleging a breach of employment contract.

The complaint alleged the plaintiff had been employed by Abbott by verbal agreement from 1969 to December 1979; that their agreement included by law an implied duty of good faith and fair dealing; that the "discharge of employees was limited by the provisions of rules and regulations promulgated by Abbott and that employees were entitled to certain medical and disability benefits; that despite Abbott’s knowledge that plaintiff was afflicted with tremors on the hand, Abbott on many occasions required plaintiff to perform work involving fine movements of the hands; that doctors and other medical staff employed by Abbott were aware of plaintiff’s symptoms and failed either to provide or refer plaintiff to expert medical services; that Abbott discharged plaintiff from employment in December 1979, although plaintiff had been for some time and was then and there incapable of performing the duties of his employment and was in need of immediate medical and surgical treatment for his ailment, communicating hydrocephalus; that after his discharge, the plaintiff became personally liable for substantial medical bills for treatment he received for his condition due to the fact Abbott had wrongfully cancelled plaintiff’s group employee benefits insurance policies and disability income benefits, although the plaintiff was at the time of discharge and for some time prior, incapable of performing the duties of his employment due to his illness.

Plaintiff claimed damage in the amount of $15,000 plus costs for his medical insurance and disability benefits and for future medical expenses, loss of earnings, and pain and suffering.

Abbott filed a motion to strike and dismiss with prejudice for failure to state a cause of action. (Ill. Rev. Stat. 1981, ch. 110, par. 45, recodified as Ill. Rev. Stat. 1981, ch. 110, par. 2—615.) The trial court granted Abbott’s motion with leave to amend.

Plaintiff’s amended complaint alleged in essence that Abbott, through its agents and employees, breached its implied duty of good faith and fair dealing by requiring plaintiff to perform work which had been prohibited by certain of Abbott’s other agents and employees, in view of the plaintiff’s hand tremors; that medical personnel employed by Abbott for its own benefit and advantage failed to properly diagnose plaintiff’s condition and should have known that he was unable to perform the duties of his employment on a daily basis due to his illness; and that the aforesaid acts of Abbott violated the public policy of Illinois set forth in the Equal Opportunities for the Handicapped Act. (Ill. Rev. Stat. 1979, ch. 38, par. 65—21 through 65—31.) Abbott again filed a motion to dismiss the amended complaint and the plaintiff responded to the motion, contending that if the amended complaint fails to state a cause of action for wrongful discharge of an employee, then at least the complaint sets forth a cognizable cause of action for malpractice since liability is imposed on an employer under the doctrine of respondeat superior for malpractice committed by medical personnel which are provided to employees for the benefit or advantage of the employer. On February 16, the trial court ordered the amended complaint be stricken with prejudice for failing to state a cause of action, and this appeal was taken from that judgment.

Plaintiff concedes that his employment relationship was “at will” since it was for an indefinite term and that, generally “at will” employees can be discharged for any reason or for no reason. (Roemer v. Zurich Insurance Co. (1975), 25 Ill. App. 3d 606, 610.) Nevertheless the plaintiff contends — correctly so — that as a matter of law every contract includes a duty of good faith and fair dealing. (Pierce v. Mac-Neal Memorial Hospital Association (1977), 46 Ill. App. 3d 42.) He contends the trial court erred in dismissing his amended complaint since pursuant to the general rule, it sets forth factual allegations which, if proven, would have established that Abbott breached its implied duty and entitled him to the relief sought. In re Estate of Libchik (1975), 27 Ill. App. 3d 331.

Plaintiff specifically notes that no Illinois case has clearly defined “good faith and fair dealing” in the employment context. He points to two Illinois cases, Stevenson v. ITT Harper, Inc. (1977), 51 Ill. App. 3d 568, appeal denied (1977), 66 Ill. 2d 642, and Criscione v. Sears, Roebuck & Co. (1978), 66 Ill. App. 3d 664, which have considered conduct alleged to be in bad faith.

The court in Stevenson considered plaintiff’s claim that his termination was a bad faith effort by his employer in order to avoid his conditional duty to pay pension benefits to him under the terms of a prior written pension agreement. That court heard testimony that, following a merger, the plaintiff’s employer had closed down the corporate acquisitions division and terminated the plaintiff because his function had been taken over by the parent corporation, which already had an acquisition function for the entire system. Consequently, the court concluded the employer’s decision to discharge the plaintiff was not made in bad faith; rather, it was based on sound business reasons. 51 Ill. App. 3d 568, 571, 573.

In Criscione, the court suggested that some “abusive pattern” on the part of the employer must be alleged. Plaintiff had appealed the dismissal with prejudice of his complaint to recover damages for his alleged wrongful and abusive discharge from defendant’s employ. Plaintiff argued on appeal that the complaint properly stated a cause of action in both tort and contract because the dismissal violated public policy and was made in bad faith rather than for a legitimate business purpose. The plaintiff had alleged that upon his return to work after treatment for a bleeding ulcer, his employer embarked upon an abusive course of conduct designed to force him to quit and/or to create a cause for his discharge. Plaintiff alleged his employer transferred him to a highly technical job without adequate preparation or training, verbally berated his subsequent poor performance in the position in front of management personnel, and demanded that he take a lesser paying job or be terminated. The court found the plaintiff’s employment was “at will,” and subject to termination at any time by either party, for or without cause. The court determined that plaintiff’s cause of action, if any, had to arise out of a violation of a statute or of public policy. Plaintiff contended on appeal his termination did violate public policy, because he had been dismissed for no legitimate business reason after he developed a bleeding ulcer which did not impair his performance on the job.

The Criscione court noted the basic statements of Illinois employment policy were found in article I, sections 17 and 19 of the 1970 Constitution (Ill. Const. 1970, art. I, secs. 17, 19), which forbid discrimination in hiring and promotion based on race, color, creed, national ancestry, sex and mental or physical handicap. It found plaintiff’s contention was a conclusion which was unsupported by the allegations of his complaint. The court found plaintiff failed to allege any connection between his ulcer and his performance and subsequent dismissal, or to state any facts relating to the nature of his work with Sears. The court concluded the plaintiff had stated no cause of action in tort against his employer. The court, recognizing that good faith is an element implied in every contract, nevertheless found there were no factual allegations in plaintiff’s complaint indicating bad faith dealing or an abusive pattern on the part of his employer. Further, there were no allegations regarding an agreement between the plaintiff and his employer pertaining to pension benefits, or that plaintiff’s rights to such rights had vested. 66 Ill. App. 3d 664, 667-69.

Most notably, however, the court refused to accept his argument that a dismissal of an at will employee that is not done for a legitimate business reason constitutes both a violation of public policy and a bad faith breach of contract. The court noted that “[a]n employee at will may quit his employment for any reason at any time and is not bound to make his decision on the basis of whether or not it is a good business decision. The obligation of the employer should be no more nor less.” (Criscione v. Sears, Roebuck & Co. (1978), 66 Ill. App. 3d 664, 669.) The court stated the rule in Illinois is that “an employment at will relationship can be terminated for ‘a good reason, a bad reason, or no reason at all.’ See Loucks v. Star City Glass Co. (7th Cir. 1977), 551 F.2d 745, 747.)” Criscione v. Sears, Roebuck & Co. (1978), 66 Ill. App. 3d 664, 669-70.

Plaintiff argues Abbott knew, or should have known that he was ill and unable to work, knew or should have known the cause of the illness, and knew or should have known he was in need of medical care. Nevertheless, in breach of its implied duty of good faith and fair dealing, Abbott discharged the plaintiff, thus depriving him of medical leave, sick leave, sick pay and medical insurance coverage, as well as potential disability benefits. Plaintiff additionally argues Abbott’s conduct as alleged in the amended complaint violated public policy as set forth in the Equal Opportunities for the Handicapped Act (Ill. Rev. Stat. 1979, ch. 38, par. 65—21 et seq.). He notes two Illinois decisions that have recognized the tort of “retaliatory discharge,” the foundation for which is the protection of public policy. Palmateer v. International Harvester Co. (1981), 85 Ill. 2d 124; Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172.

In response, Abbott argues that plaintiff’s complaint fails to set forth any facts which would support a finding that the plaintiff was discharged in order to avoid having to pay him medical or disability benefits. Plaintiff’s complaint does not allege he was discharged because of his illness, only that he had an illness and was discharged. Likewise, plaintiff does not allege he ever made — or Abbott refused to honor — claims for medical or disability benefits while he was employed.

Plaintiff’s complaint alleges no facts which, if proven, would establish that Abbott had a duty to know of or to treat plaintiff’s illness, only that Abbott failed to do so. Consequently, Abbott concludes that since plaintiff failed to make any factual allegations indicating bad faith dealing on the part of Abbott, no cause of action for breach of an “at will” employment contract was stated, and the trial court properly dismissed the complaint. Criscione v. Sears, Roebuck & Co. (1978), 66 Ill. App. 3d 664.

Abbott further argues that the plaintiff’s complaint failed to state a cause of action in tort for retaliatory discharge. Abbott points out that the plaintiff’s brief intermingles the theories of breach of contract and the tort of retaliatory discharge. Citing Sargent v. Illinois Institute of Technology (1979), 78 Ill. App. 3d 117, appeal denied (1980), 79 Ill. 2d 629, Abbott contends that the plaintiff cannot change the theory upon which his claim is based for the first time on appeal. The authority cited in Sargent, Kravis v. Smith Marine, Inc. (1975), 60 Ill. 2d 141, 147, has been held inapplicable, however, when the issue in the appellate court is whether that “new theory” was properly set out in plaintiff’s complaint in the first place. (Krautstrunk v. Chicago Housing Authority (1981), 95 Ill. App. 3d 529, 534-35, appeal denied (1981), 85 Ill. 2d 565.) Additionally, although separate causes of action should properly be stated in separate counts (Ill. Rev. Stat. 1981, ch. 110, par. 33(2), recodified as Ill. Rev. Stat. 1981, ch. 110, par. 2 — 603(b)), the record does not indicate Abbott raised an objection to this defect below and, as the trial court did in Criscione, this court may make separate evaluations of the complaint as a whole in considering each of the claimed causes of action. 66 Ill. App. 3d 664, 667.

The thrust of the plaintiff’s argument is essentially two-fold. First, that his allegations of Abbott’s discharge of him after failing to correctly diagnose and treat his illness was sufficient to state a cause of action for breach of the implied duty of good faith and fair dealing which is inherent in every contract. Second, that his allegation that Abbott’s discharge of him under the circumstances alleged a violation of a stated public policy of the State of Illinois (Ill. Rev. Stat. 1979, ch. 38, par. 65—21, et seq.) and was thus sufficient to state a cause of action for the recognized tort of “retaliatory discharge” as that tort was discussed in Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, and Palmateer v. International Harvester Co. (1981), 85 Ill. 2d 124.

Plaintiff’s arguments on both theories are without merit. As to the breach of implied contractual duty of good faith and fair dealing, the plaintiff makes no allegations which suggest that the plaintiff was discharged because he was ill, or that he had sought and been denied medical and/or disability benefits while he was employed by Abbott. It would appear from the plaintiff’s own pleadings that he had been for some time and was then unable to perform the duties of his employment. Plaintiff seems to be taking the position that Abbott’s failure to initiate the care and treatment of an ailment which was preventing the plaintiff from either partially or entirely performing his job was in bad faith, unfair and, ultimately, a breach of his oral “at will” employment contract with Abbott.

As pointed out by Abbott, the plaintiff makes no allegations his illness occurred on the job or was work-related in any manner, or that his illness qualified him to receive the medical benefits to which he alleged he was entitled. Further, if the plaintiff’s illness did arise out of a work-related incident, there is no common law cause of action for the alleged malpractice of a company physician in treating another employee of the company, since our supreme court has held that the Workers’ Compensation Act provides the sole means of recovery for alleged malpractice by a company physician in treating an employee of the company. (McCormick v. Caterpillar Tractor Co. (1981), 85 Ill. 2d 352.) Similarly, the plaintiff has not alleged that the availability of medical services provided by Abbott prevented him from seeking other independent medical services. In sum, we conclude the plaintiff’s complaint failed to state a cause of action under the theory of breach of contract.

Likewise, the plaintiff’s complaint fails to state a cause of action under the tort theory of retaliatory discharge. The Kelsay and Palmateer cases indicate that a cause of action for retaliatory discharge has been stated if the employer has discharged the employee in retaliation for the employee’s activities, and the discharge was in contravention of -a clearly mandated public policy which favored the activity on which the discharge was predicated. (Palmateer v. International Harvester Co. (1981), 85 Ill. 2d 124, 134.) Plaintiff here has made no allegation of retaliatory action on the part of Abbott, and the public policy plaintiff relies on, the Equal Opportunities for the Handicapped Act (Ill. Rev. Stat. 1979, ch. 38, par. 65—21 et seq.) was repealed and replaced by the Illinois Human Rights Act (Ill. Rev. Stat. 1981, ch. 68, par. 1—101 et seq.), which became effective July 1, 1980, slightly over a year before the instant complaint was filed.

Neither party has argued whether the complaint states a cause of action under that act; therefore, we do not consider whether it does. Even under the former act, a physical handicap was defined inter alia as a “handicap unrelated to one’s ability to perform jobs ***.” (Ill. Rev. Stat. 1979, ch. 38, par. 65 — 22.) The act made it unlawful for an employer to discharge any individual because of such individual’s physical or mental handicap, “unless it [could] be shown that the particular handicap prevents the performance of the employment involved.” (Ill. Rev. Stat. 1979, ch. 38, par. 65—23(1).) Plaintiff’s own allegations make it clear his illness prevented him from performing his job for some time prior to his discharge. Consequently, we conclude plaintiff’s complaint also failed to state a cause of action in tort, and it was properly dismissed by the trial court.

With regard to the dismissal with prejudice, the record does not show the plaintiff requested leave to amend. Plaintiff’s notice of appeal requests this court to vacate the trial court’s order, and remand the cause with directions that Abbott be required to answer the plaintiff’s amended complaint. Plaintiff has thus elected to stand on his complaint and has waived the issue. Criscione v. Sears, Roebuck & Co. (1978), 66 Ill. App. 3d 664, 670.

The judgment of the circuit court of Lake County is affirmed.

Judgment affirmed.

HOPE and NASH, JJ., concur.


author: JUSTICE NASH

text:
    PETER D. WAGNER, Plaintiff-Appellant, v. JAMES A. ZBONCAK, Defendant-Appellee.
    Second District
    No. 82—221
    Opinion filed December 14, 1982.
    Walter M. Ketchum and Patrick S. Moore, both of Chicago, for appellant.
    Victor J. Piekarski, James S. Jendryk, and Glen E. Amundsen, all of Querrey, Harrow, Gulanick & Kennedy, Ltd., of Chicago, for appellee.
   JUSTICE NASH

delivered the opinion of the court:

Plaintiff, Peter D. Wagner, appeals from a judgment of the circuit court, entered upon a jury verdict, finding for defendant, James A. Zboncak, in this negligence action arising out of an automobile accident. He contends that the trial court erred in refusing to declare a mistrial; in giving and refusing to give certain jury instruction; in admitting evidence, and, that the verdict was contrary to the manifest weight of the evidence. We reverse and remand.

At about 8 p.m. on August 28, 1979, plaintiff was driving his Jeep east on Odgen Avenue in Lisle approaching Yackley Road. Defendant was driving his van west on Odgen intending to turn left onto southbound Yackley. After defendant reached the intersection he waited for three or four vehicles to pass and then proceeded to turn left. While crossing the eastbound lanes of Odgen, he observed plaintiff’s Jeep coming towards him through the green light, about one second from impact. He accelerated, but could not clear Odgen in time and the right front of plaintiff’s Jeep impacted the right rear of the van. The Jeep rolled onto its side and came to rest on plaintiff’s left foot and ankle, injuring him. Defendant subsequently pled guilty to a citation for failure to yield the right of way.

Prior to trial the court granted plaintiff’s motion in limine which, inter alia, prohibited defendant from introducing any evidence of consumption of alcohol by plaintiff prior to the accident as there was no evidence of his intoxication. In trial plaintiff called defendant as his first witness and inquired what defendant had said to the investigation officer at the scene. When asked the same question previously at a deposition, defendant had responded he did not recall. Before the jury, however, he responded that the scene smelled like a brewery; that there were beer bottles all over the place, thrown in an adjacent lot; and, that there were no skid marks from plaintiff’s Jeep. At the close of defendant’s testimony, out of the jury’s presence, plaintiff moved for a mistrial on the grounds defendant’s response was in violation of the order in limine. The trial court denied the motion.

Expert opinion testimony was offered by defendant that the failure of plaintiff to use a seat belt and the absence of the removable canvas door on the driver’s side of plaintiff’s vehicle had contributed to causing plaintiff’s ejection from it and his injury. Plaintiff’s motion to strike the evidence relating to the absence of the canvas door was denied by the trial court.

In view of the ruling of the court admitting the opinion testimony, plaintiff offered an instruction, applicable both to the seat belt and to the lack of a door, limiting consideration of that evidence to damages only and not as to liability. Defendant’s counsel advised the court the jury could properly also consider the evidence as to proximate cause, and plaintiff’s instruction was refused. Plaintiff also objected to defendant’s tendered instruction as to speed on the grounds there was no credible evidence plaintiff was speeding. The instruction was given.

While deliberating, the jury requested clarification of the issue of proximate cause and its relation to contributory negligence and were referred by the court to the instructions relating to proximate cause. The jury thereafter returned a general verdict for defendant upon which judgment was entered. This appeal followed.

Plaintiff initially contends the trial court erred in denying his motion for a mistrial when the defendant testified the accident scene smelled like a brewery and implied that occupants in the Jeep had attempted to conceal beer bottles in an adjacent vacant lot. He argues this was a direct, intentional violation of the order in limine and prejudicial. Defendant argues this issue has been waived by lack of objection at the time of the answer, but plaintiff did timely move for a mistrial out of the presence of the jury after completion of defendant’s testimony.

Evidence of drinking is so prejudicial that more than mere drinking must be shown; actual intoxication with impairment of physical or mental capabilities is required. (Bohnen v. Wingereid (1979), 80 Ill. App. 3d 232, 237, 398 N.E.2d 1204, 1208; Kitten v. Stodden (1966), 76 Ill. App. 2d 177, 181-82, 221 N.E.2d 511, 513, appeal denied (1967), 35 Ill. 2d 631.) Insinuations or innuendos of intoxication based upon evidence of drinking are impermissible and irrelevant when there is no evidence of intoxication. (Benuska v. Dahl (1980), 87 Ill. App. 3d 911, 914, 410 N.E.2d 249, 252; McWethy v. Lee (1971), 1 Ill. App. 3d 80, 272 N.E.2d 663, appeal denied (1972), 49 Ill. 2d 575.) However, such irrelevant evidence is grounds for reversal only if it results in prejudicing the jury’s verdict. Gilberto v. Nordtvedt (1971), 1 Ill. App. 3d 677, 679, 274 N.E.2d 139, 140.

Defendant notes there was just a single reference to plaintiff’s consumption of alcohol; however, it does not follow that the reference is thus without prejudice. The improper reference occurred on the examination of the first witness in trial, when the jury was highly attentive, and it could readily have colored its perception of the following testimony. Further, under the order in limine, plaintiff was unable to rebut the allegation without himself violating the order.

In Benuska v. Dahl (1980), 87 Ill. App. 3d 911, 914, 410 N.E.2d 249, 252, this court found that irrelevant evidence that one defendant had thrown a can of beer out of a car after an accident was sufficiently prejudicial as to require reversal. We held that a mistrial should have been granted not only because the suggestion of drinking without proof was highly prejudicial, but because defendant was also denied a fair opportunity to rebut the allegation under the order in limine, as in the present case. In Coleman v. Williams (1976), 42 Ill. App. 3d 612, 617, 356 N.E.2d 394, 398, no evidence was introduced that plaintiff was intoxicated, but evidence was produced that plaintiff had spent some time in taverns on the day of the accident. In closing argument, defense counsel made the single reference that the jury consider where the plaintiff had been that day. We concluded this indirect reference to drinking raised the possible conclusion plaintiff was intoxicated and was reversible error. See Mizowek v. De Franco (1976), 64 Ill. 2d 303, 356 N.E.2d 32; cf. Gilberto v. Nordtvedt (1971), 1 Ill. App. 3d 677, 679-80, 274 N.E.2d 139,140-41.

It is apparent plaintiff was denied a fair trial in these circumstances and a mistrial should have been granted on that basis. It was also a clear violation of the trial court’s in limine order, and as plaintiff was prejudiced, reversal is required. Reidelberger v. Highland Body Shop, Inc. (1979), 79 Ill. App. 3d 1138, 1144, 399 N.E.2d 247, 251, aff’d (1981), 83 Ill. 2d 545, 416 N.E.2d 268.

Plaintiff next contends that the trial court erred in refusing to submit his tendered instruction No. 6 which read as follows:

“If you decide that the failure of the plaintiff in operating his vehicle without the door in place or without wearing a seat belt aggravated the injuries he sustained, then you are to consider those facts together with all of the other facts in evidence as to the nature and extent of the injuries sustained by the plaintiff.
You are not to consider those facts in determining the question of negligence or contributory negligence.”

We agree. The failure of the trial court to instruct the jury that evidence of the nonuse of seat belts is limited and may be considered only as to damages was also reversible error.

It has been settled by a long line of Illinois cases beginning with this court’s decision in Mount v. McClellan (1968), 91 Ill. App. 2d 1, 234 N.E.2d 329, and further analyzed in Kassela v. Stonitsch (1978), 57 Ill. App. 3d 817, 373 N.E.2d 608, and Dudanas v. Plate (1976), 44 Ill. App. 3d 901, 358 N.E.2d 1171, appeal denied (1977), 65 Ill. 2d 581, that evidence of the use or nonuse of seat belts is not relevant to the issue of defendant’s liability or plaintiff’s contributory negligence, but is relevant only as it may affect the extent of plaintiff’s injuries. Even then, the seat belt defense is proper only when it has been established by competent evidence that there is a direct, causal connection between plaintiff’s failure to use a seat belt and his injuries. See also Kassela v. Stonitsch (1978), 57 Ill. App. 3d 817, 821-22, 373 N.E.2d 608, 612; Dudanas v. Plate (1976), 44 Ill. App. 3d 901, 904, 358 N.E.2d 1171, 1174-75, appeal denied (1977), 65 Ill. 2d 581; Eichorn v. Olson (1975), 32 Ill. App. 3d 587, 592-93, 335 N.E.2d 774, 778.

The issues of defendant’s liability and plaintiff’s injuries are questions which must be considered separately. To consider them as one question with a single answer determined, in part, by whether or not plaintiff wore a seat belt is error. Failure to wear seat belts cannot, as a matter of law, constitute contributory negligence. (See Old Second National Bank v. Baumann (1980), 86 Ill. App. 3d 547, 408 N.E.2d 224, appeal denied (1980), 79 Ill. 2d 632.) If competent evidence has established that plaintiff failed to wear an available seat belt and that a causal connection existed between nonuse and plaintiff’s injuries, then an instruction limiting the use of that evidence must be submitted to the jury. (Dudanas v. Plate (1976), 44 Ill. App. 3d 901, 908-09, 358 N.E.2d 1171, 1178, appeal denied (1977), 65 Ill. 2d 581.) It makes no logical difference whether plaintiff or defendant seeks the instruction as evidence admitted in trial is available for all purposes to every party. Morris v. Central West Casualty Co. (1932), 351 Ill. 40, 47, 183 N.E. 595, 598; Dudanas v. Plate (1976), 44 Ill. App. 3d 901, 909, 358 N.E.2d 1171, 1178, appeal denied (1977), 65 Ill. 2d 581.

In the case at bar the jury was left to speculate as to the application of this evidence and could well have been confused in reaching its verdict. The trial judge, relying upon representations of defendant’s counsel, also erroneously understood that absence of seat belts could be considered as to contributory negligence. In these circumstances the failure to give plaintiff’s tendered instruction as it related to seat belts requires reversal. People v. Lyden (1981), 97 Ill. App. 3d 540, 542; County of Cook v. Patka (1980), 85 Ill. App. 3d 5, 15, 405 N.E.2d 1376, 1382.

In view of our determination of these issues we will address plaintiff’s further contentions only to the extent necessary to avoid error on retrial.

Plaintiff argues that the trial court erred in refusing his motion to strike the evidence relating to the absence of a door on the plaintiff’s vehicle. As offered in this case, defendant apparently seeks to extend the seat belt doctrine, as a factor in mitigation of damages, to the condition of the vehicle in which plaintiff was riding. Defendant’s counsel offers no authority for such extension and in oral argument acknowledged he knew of none. Nor are we aware of any basis upon which that evidence could properly be considered as to the issues of liability or damages in this case.

Plaintiff next contends the trial court erred in giving defendant’s instruction No. 16 relating to speeding and patterned on section 11 — 601(a) of the Illinois Vehicle Code (Ill. Rev. Stat. 1979, ch. 951/2, par. 11—601(a)), arguing- there was no credible evidence he was speeding. Credibility was to be determined by the jury, and as both defendant and another witness testified plaintiff’s speed was excessive, the instruction was properly given.

We conclude the errors in trial require that the judgment of the circuit court be reversed and the cause remanded for a new trial.

Reversed and remanded.

REINHARD and VAN DEUSEN, JJ., concur.