author: JUSTICE JONES WELCH, P.J.,

text:
    RALPH DYKES, Plaintiff-Appellee, v. NORFOLK AND WESTERN RAILWAY COMPANY, Defendant-Appellant.
    Fifth District
    No. 83 — 129
    Opinion filed March 23,1984.

      WELCH, P.J., dissenting.
    Pope and Driemeyer, of Belleville (Karl D. Dexheimer and James P. Leonard, of counsel), for appellant.
    Callis & Hartman, P.C., of Granite City (John T. Papa, of counsel), for appellee.
   JUSTICE JONES

delivered the opinion of the court:

Plaintiff, Ralph Dykes, brought this action to recover damages from the defendant, Norfolk and Western Railway Company, for injury resulting to him from an alleged violation of the Federal Safety Appliance Act (Act) (45 U.S.C. sec. 1 et seq. (1970)). The plaintiff, who was injured when he attempted to set a hand brake on a locomotive engine upon which he was working, alleged that the hand brake was defective and that this defect constituted a violation of the Act. Following a jury trial, the trial court entered judgment on the jury’s verdict for the plaintiff in the amount of $18,000. On appeal from this judgment, the defendant contends that the alleged defect did not, as a matter of law, constitute a violation of the Act because the Act does not require hand brakes on locomotives. We agree and accordingly reverse the judgment entered by the trial court.

The plaintiff was employed at the time of his injury as a fireman in the defendant’s Humboldt Yard in St. Louis, Missouri. As such he worked aboard a switch or yard engine, used locally to move cars from one track to another in making up trains.

On the date in question the plaintiff and his crew were assigned to engine No. 3370, a diesel-electric switch engine, to perform switching operations in the yard. In addition to the hand brake here at issue, engine No. 3370 was equipped with both an independent brake and an automatic brake. The independent brake was used to set the brakes on the engine alone, while the automatic brake was used to stop the train by setting air on the cars in the train. In addition, the hand brake could be set to hold the engine in case the engine died and the air leaked from the independent brake.

The plaintiff’s injury occurred after the plaintiff and his crew had completed their first switching assignment of the day and had proceeded to the yard tower to take a break. Upon reaching the tower, the engineer in charge isolated the engine, which involved setting both the independent brake and the automatic brake. The plaintiff, as fireman, was to set the hand brake on the engine. He took the wheel of the hand brake and pulled it toward him to turn the wheel. When the plaintiff pulled hard on the wheel to tighten it, the wheel released, causing the plaintiff to fall back and pull his shoulder.

The plaintiff brought suit against the defendant, alleging in a one-count complaint a violation of the Act that proximately caused his injury. At trial the defendant moved for a directed verdict on the grounds that the allegedly defective hand brake could not have constituted a violation of the Act because the Act does not require hand brakes on locomotives. The motion was denied, and the jury returned a verdict for the plaintiff, assessing damages in the amount of $18,000. The defendant has appealed from the judgment entered on the verdict.

On appeal the defendant contends that the hand brake requirement of the Act, properly construed, does not extend to locomotives such as that here at issue. In its argument the defendant relies upon the history and purpose of the Act as well as upon case law interpreting similar provisions of the Act. In addition the defendant cites a long-standing administrative rule that expressly provides that hand brakes are not required on locomotives.

The hand brake requirement of the Act is set forth in section 11 (45 U.S.C. sec. 11 (1970)), which provides in pertinent part:

“It shall be unlawful for any common carrier subject to the provisions of sections 11 to 16 of this title to haul, or permit to be hauled or used on its line, any car subject to the provisions of said sections not equipped with appliances provided for in said sections, to wit: All cars must be equipped with secure sill steps and efficient hand brakes[:] *** Provided, That in the loading and hauling of long commodities, requiring more than one car, the hand brakes may be omitted on all save one of the cars while they are thus combined for such purposes.”

Under this section efficient hand brakes are required on “all cars.” Thus, in the instant case the defendant’s liability for a violation of the Act depends upon whether a switch engine is a “car” for purposes of the hand brake requirement of the Act.

While the plaintiff contends that the word “car” should be construed broadly to include locomotives within the requirement of this section, it is well settled that a locomotive is not considered to be a car for all purposes under the Act. (Wabash R. Co. v. United States (7th Cir. 1909), 172 F. 864; LeHigh Valley R. Co. v. Beltz (2d Cir. 1925), 10 F.2d 74, cert. denied (1926), 270 U.S. 641, 70 L. Ed. 775, 46 S. Ct. 205; United States v. Chicago, St. P., M. & O. Ry. Co. (7th Cir. 1930), 41 F.2d 927; see Davis v. Manry (1925), 266 U.S. 401, 69 L. Ed. 350, 45 S. Ct. 163; Annot., 91 A.L.R.2d 523 (1963).) Rather, the determination of whether a locomotive comes within the scope of a specific section of the Act regarding cars has been held to depend upon both the context and purpose of the provision in question. Thus, as a general rule, a locomotive will be held to be a car within meaning of a particular section when the same reason exists for requiring the installation and maintenance of the prescribed safety device on the locomotive as exists for requiring it on a car. Annot., 91 A.L.R.2d 523 (1963); United States v. Chicago, St. P., M. & O. Ry. Co. (8th Cir. 1930), 43 F.2d 300.

In Johnson v. Southern Pacific Co. (1904), 196 U.S. 1, 49 L. Ed. 363, 25 S. Ct. 158, decided shortly after the enactment of the Safety Appliance Act in 1893, the court ruled that for purposes of the automatic coupler provision of the Act (see 45 U.S.C. sec. 2 (1970)), the word “car” was used in its generic sense to mean all kinds of cars running on the rails, including locomotives. The court noted that

“it was as necessary for the safety of employes [sic] in coupling and uncoupling, that locomotives should be equipped with automatic couplers, as it was that freight and passenger and dining cars should be, perhaps more so, *** ‘since engines have occasion to make couplings more frequently.’ ” (Johnson v. Southern Pacific Co. (1904), 196 U.S. 1, 15, 49 L. Ed. 363, 368, 25 S. Ct. 158, 161.)

Since, in view of the “context, subject matter and object” (196 U.S. 1, 16, 49 L. Ed. 363, 369, 25 S. Ct. 158, 161) of the automatic coupler provision, there was no reason to distinguish between locomotives and other cars, locomotives were held to be cars within the meaning of that section.

In 1903 the Act was amended by section 8 (45 U.S.C. sec. 8 (1970)) to expressly extend the provisions of sections 1 through 7 to “all trains, locomotives, tenders, cars, and similar vehicles ***.” The courts, however, continued to look to the danger to be avoided by the requirement of a particular safety device in determining whether a vehicle was to be considered a car for purposes of that requirement.

The court in Wabash R. Co. v. United States rejected the contention that “a locomotive and a car are synonymous terms in every respect and for every purpose” (172 F.2d 864, 865), holding that a locomotive engine was not required, under the provision that all cars be equipped with couplers, to have couplers at both ends. Citing Johnson, the court stated:

“[T]he primary object of the act was to promote the public welfare by securing the safety of employees and travelers. Its design to give relief was more dominant than to inflict punishment — a view of the statute that is wholly irreconcilable with a construction that would require the designated couplers to be placed where they were never used or intended to be used.” 172 F.2d 864, 865.

Similarly, in Pennell v. Philadelphia & Reading Ry. Co. (1914), 231 U.S. 675, 58 L. Ed. 430, 34 S. Ct. 220, the Supreme Court looked to the purpose of the Act in holding that an automatic coupler was not needed between an engine and its tender. The court there noted that, in Johnson, a locomotive was held to be a car within the meaning of the automatic coupler provision because of the necessity of coupling an engine to a train, “[a]nd in this necessity the dangers to employees would occur which the act was intended to prevent.” (231 U.S. 675, 678, 58 L. Ed. 430, 433, 34 S. Ct. 220, 221.) While, in Johnson, “[t]o omit the locomotive [from coverage of the Act] *** was to omit part of a train which was within all the mischiefs of the act, and therefore covered by its remedies” (231 U.S. 675, 678, 58 L. Ed. 430, 433, 34 S. Ct. 220, 221), no such conditions existed in the case under consideration. Rather, in Pennell, no dangerous position was assumed by an employee in coupling the engine and tender and, therefore, the case “[was] not brought either within the mischief or the remedy of the act.” (231 U.S. 675, 678, 58 L. Ed. 430, 433, 34 S. Ct. 220, 221.) Cf. Southern Ry. Co. v. Crockett (1914), 234 U.S. 725, 58 L. Ed. 1564, 34 S. Ct. 897 (locomotive held to come within height requirement for drawbars of freight cars where both vehicles were used together and there was as much reason for having drawbars of locomotives adjusted to standard height as there was for freight cars); Davis v. Manry (1925), 266 U.S. 401, 69 L. Ed. 350, 45 S. Ct. 163 (tender of locomotive not a car for purposes of handhold requirement for cars).

In 1910 the Act was further amended by the addition of sections 11 through 16 (45 U.S.C. secs. 11-16 (1970)), which, by the terms of section 16, were to apply to the same vehicles as did the existing sections of the Act. Thus, the “any car” language of section 11, the hand brake requirement here at issue, is to be interpreted in accord with the tests set forth for other safety appliances prescribed by the Act.

. .While we are aware of no case that specifically addresses the issue of the applicability of the hand brake requirement to locomotives, we may obtain guidance on this question from a line of cases in which the rationale of the Johnson and Pennell decisions was reiterated and applied with regard to the power brake requirement for cars. At issue in these cases, United States v. Chicago, St. P., M. & O. Ry. Co. (7th Cir. 1930), 41 F.2d 927, affg (W.D. Wis. 1929), 42 F.2d 248, and United States v. Chicago, St. P., M. & O. Ry. Co. (8th Cir. 1930), 43 F.2d 300, affg (D.C. Minn. 1929), 34 F.2d 812, was whether a pusher engine coupled to the rear of a train to assist the head engine in pulling the train upgrade was a car for purposes of the power or train brake requirement of the Act (see 45 U.S.C. secs. 1, 9 (1970)). Under the pertinent provisions, a percentage of the cars of a train were to be equipped with power brakes controlled by the engineer of the head locomotive. In each case the pusher engine in question was equipped with a separate power driving-wheel brake required for locomotives but was not connected to the power brake system of the train. The courts in each case held, upon consideration of the context and purpose of the applicable provisions, that the pusher engine was not a car for purposes of the power brake requirement of the Act.

In so holding, the Eighth Circuit Court of Appeals distinguished the Johnson case on its facts, noting that while the Act made separate provisions regarding brake requirements for cars and locomotives,

“[the] act, in so far as it referred to couplers, did not name locomotives separately from cars, and unless automatic couplers were required on locomotives by reason of their inclusion in ‘any car,’ they were not required at all. *** As to automatic couplers, there was just as great necessity [sic] for having them on locomotives as on cars, but as locomotives are equipped with their own air brakes, and with men on the engine to operate them, there would seem to be reason for treating them as separate and independent from ‘power brake cars.’ ” (43 F.2d 300, 303.)

The court observed:

“While the Supreme Court in the Johnson case held that a locomotive engine was a car within the meaning of the automatic coupler' provision of the Safety Appliance Act, and in Southern Ry. Co. v. Crockett *** held that a locomotive was a
car within the draw bar provisions of the act, *** these provisions, one requiring the installation and use of automatic couplers, and the other fixing and requiring the use of draw bars of standard height, were, from a practical standpoint, as necessary on locomotives as on cars, and the Safety Appliance Act did not speak separately of locomotives in prescribing couplers nor the height of drawbars, as it does in regulating the subject of train brakes.” 43 F.2d 300, 303.

The court then set forth a test for determining whether a locomotive is a car for purposes of a particular safety appliance:

“Locomotives and tenders are included within the term ‘cars’ in those cases where the statute or order of the Commission is such as applied to the appliance and the equipment that no sufficient practical distinction can be made between cars and locomotives. In other words, where the same reasons for requiring the installation and maintenance of the appliance on an engine or a tender exists as for requiring it on a car, and there is no separate provision with reference to the equipment required on the locomotive, then the locomotive has been construed to be a car.” 43 F.2d 300, 304.

Applying this test to the instant case, we believe there are sufficient differences between the brake requirements for cars and locomotives that locomotives do not come within the hand brake requirement of section 11. As the United States v. Chicago, St. P., M. & O. Ry. Co. cases demonstrate, the Act makes separate provisions for cars and locomotives with regard to the power brake requirements of section 1. Under this section a locomotive is required to be equipped with an independent power brake in addition to a brake for controlling the train’s power brake system. While hand brakes would be necessary on cars in situations where the cars were unconnected with the power brake system of the train (see Grand Rapids & Indiana Ry. Co. v. United States (6th Cir. 1918), 249 F. 650), no such necessity exists for a locomotive equipped with its own independent power brake. Because of this difference in brake requirements for cars and locomotives, locomotives cannot be said to be cars for purposes of the hand brake requirement under the “same reason” test set forth by the courts.

Our determination in this regard is buttressed by a rule of the Interstate Commerce Commission that expressly states:

“Hand brakes will not be required on locomotives nor on tenders when attached to locomotives.” (49 C.F.R. sec. 231.17(a).)

This rule, promulgated pursuant to statute, embodies the interpretation of the agency charged with administering the Act and, as such, is entitled to great weight. (United States v. Chicago, St. P., M. & O. Ry. Co. (8th Cir. 1930), 43 F.2d 300; see United States v. Seaboard Coast Line R.R. Co. (M.D. Fla. 1973), 368 F. Supp. 1079.) This rule was adopted by order of the Commission in 1911, contemporaneously with section 11 here at issue, and thus represents long administrative practice to be considered in the construction of the statute. (Baltimore & Ohio Ry. Co. v. Jackson (1957), 353 U.S. 325, 1 L. Ed. 2d 862, 77 S. Ct. 842; Davis v. Manry.) As stated by the court in United States v. Chicago, St. P., M. & O. Ry. Co. (8th Cir. 1930), 43 F.2d 300, 305-06:

“If the meaning of [the] statute were in doubt, the practical construction given it through all these years should be presumed to be the correct one, and this is particularly true where there has been a contemporaneous construction of the statute by those charged with its execution and application. We should be reluctant to overturn a long standing departmental construction, presumably known to the legislative department which has made no amendments to the act, seeking to make it applicable to the practice now challenged ***.”

We find no basis for the plaintiff’s assertion on appeal that the court’s decision in Baltimore & Ohio Ry. Co. v. Jackson is controlling of the result here. Both that case and Martin v. Johnston (Fla. 1955), 79 So. 2d 419, also cited by the plaintiff, were concerned with whether certain maintenance-of-way vehicles used upon the railroad came within coverage of the Act at all, while, in the instant case, that issue is determined by the express provision of section 8 making the Act applicable to locomotives. Thus, the courts’ holdings in those cases that the vehicles in question were sufficiently akin to “cars” and “locomotives” to be covered by the Act are inapposite to the question of the requirements of a specific section at issue in the instant case. Moreover, insofar as those cases dealt with specific appliances required under the Act, they are not inconsistent with the result we have reached here. Cf. Baltimore & Ohio Ry. Co. v. Jackson (motor track car used like a locomotive required to be equipped with power brake); Martin v. Johnston (motorized track car came within requirement of efficient hand brake where equipped with no other brake).

We note finally that since the plaintiff’s action here was based solely upon the defendant’s alleged violation of the Act, the plaintiff could recover only if the defect complained of constituted such a violation. The plaintiff has failed to show that locomotives are required under the Act to be equipped with hand brakes and cannot, therefore, succeed on this theory. While it may be significant in another case based on negligence that the defendant had installed a hand brake on its locomotive and had a rule regarding its use as an additional safety measure, these facts have no bearing in this action premised upon a statutory violation.

Because we have found as a matter of law that the defendant’s acts did not constitute a statutory violation, it is unnecessary to address the additional question raised by the defendant of whether the ' defect complained of was a proximate cause of the plaintiff’s injury.

For the reasons stated in this opinion, we reverse the judgment of the circuit court of Madison County.

Reversed.

EARNS, J., concurs.

WELCH, P.J.,

dissenting:

The majority is correct in observing that whether a yard engine is covered by the hand brake provisions of section 11 of the Federal Safety Appliance Act depends on whether the same reason exists for requiring the brake on the engine as exists for requiring it on a car. However, I believe that the evidence presented at trial shows that the hand brake is as necessary on that engine as it is on a railroad car, and I must respectfully dissent from the majority’s conclusions to the contrary.

The purpose of the hand brake on railroad cars is to prevent them from rolling when not attached to the automatic braking system of a train. The hand brake thus ensures that a car will at no time be left without a working brake system. The same function, in my judgment, is served by the hand brake on a yard engine.

Defense witness Charles Gallagher, roundhouse foreman for the defendant, testified that it was the accepted procedure at the defendant’s yard to apply the hand brake when an engine was parked and left standing alone. The reason for this practice is, as the plaintiff explained, “in case the engine would die, the air would leak off, you’ve got a brake to hold it.” This is especially important in the case of yard engines, which, are often parked on grade and left unattended in areas densely populated by workers. It is reasonable to conclude that the considerations behind this safety procedure at defendant’s yard also justify applying the Safety Appliance Act’s hand brake requirement to engines which are used in railroad yards.

This position is further supported by Martin v. Johnston (Fla. 1955), 79 So. 2d 419. Although the primary question in Martin was whether a maintenance-of-way vehicle is covered by the Act in general, the result in Martin was to require hand brakes on that car, which, like a yard engine, is often stopped and left standing alone. Martin thus stands for the principle that a railroad vehicle which is governed by the Safety Appliance Act and frequently remains unattached and unattended must not be left without a functioning brake system at any time. Nothing cited in the majority’s opinion repudiates this as a goal of the Act. The United States v. Chicago, St. P., M. & O. Ry. Co. cases are distinguishable because they involved pusher engines on main lines, and because the hand brake provisions of the Act were not specifically discussed.

Nor am I persuaded that the quoted rule of the Interstate Commerce Commission dictates reversal of the judgment. Such an administrative construction of a statute is not to be accorded great weight if it is apparent that the agency did not consider the specific problem at hand. (Baltimore & Ohio Ry. Co. v. Jackson (1957), 353 U.S. 325, 330-31, 1 L. Ed. 2d 862, 867, 77 S. Ct. 842, 846.) The presence of the word “tender” in the rule suggests that the Commission was considering coal fired steam locomotives when it adopted the rule in 1911, and has not reviewed its applicability for some time. Steam locomotives would seem to be appreciably less likely than diesel-electric engines to roll when left unattended without brakes, and had the Commission expressly addressed the problems of diesel-electric yard engines, it may well have required hand brakes on them. The difference between those two forms of propulsion is an additional cause to discount the probative value of the United States v. Chicago, St. P., M. & O. Ry. Co. cases here.

For these reasons, I would agree "with the trial court that the hand brake requirement of section 11 should apply to yard engines such as engine No. 3370.


source: Caselaw Access Project

author: PRESIDING JUSTICE WELCH

license: Public Domain

text:
    KATHY ROBERTSON, Adm’x of the Estate of Thomas L. Robertson, Deceased, Plaintiff-Appellee, v. GENERAL TIRE AND RUBBER COMPANY, Defendant-Appellant.
    Fifth District
    No. 82-437
    Opinion filed March 27,1984.

      Mitchell & Armstrong, Ltd., of Marion (J.C. Mitchell, of counsel), for appellant.
    Harris, Lambert and Wilson, of Marion, for appellee.
   PRESIDING JUSTICE WELCH

delivered the opinion of the court:

Thomas L. Robertson, 25, an employee of the Peabody Coal Company, was killed at about 5:10 a.m. on May 14, 1974, as he replaced lug bolts on the wheel of a machine known as a Galis Model 3500 Twin-Boom Roof Drill. The accident report, filed by Charles E. Luxmore, a Federal coal mine inspector, and introduced as an exhibit at trial, stated that when the lug bolts were cut off, the wheel rim separated violently striking Robertson in the chest, killing him instantly.

The wheels of the roof drill machine consisted of two halves held together by five retaining bolts. These retaining bolts held the split wheel assembly together. The wheels were designed to be secured to the hub of the axle on the machine by 10 lug bolts. A co-worker testified at trial that at the time of his death, Robertson was using a cutting torch to burn loose the lug bolts that hold the wheel to the hub. The Federal inspector noted in his report that three of the five retaining bolts were damaged and ineffective and this condition could not have been determined by visual inspection. The inspector concluded that failure to deflate the tire before removing the lug bolts and failure by management to instruct Robertson on safe procedures for removing retaining bolts from split rim wheel assemblies were the causes of the accident. He stated that the heat applied by the cutting torch increased air pressure in the tire, contributing to the violence of the separation of the wheel rim.

Kathy Robertson, administratrix of her husband’s estate, brought a wrongful death action in the circuit court of Williamson County. The defendant, General Tire and Rubber Company, is the successor corporation to the original manufacturer of the machine. At trial, plaintiff’s expert metallurgist testified that two and possibly three of the five retaining bolts had been partially fractured prior to the explosion. It was plaintiff’s theory of the case that the existing cracks in the retaining bolts were a hidden defect, resulting from negligent design. Plaintiff further alleged, in an amended complaint, that the manufacturer had a duty to instruct Robertson to deflate the tire before removing the lug bolts and a duty to warn him of the danger if he failed to do so. Plaintiff’s expert mechanical engineer testified that another available wheel design, a lock ring rim wheel, would have eliminated this design defect. Defendant’s witnesses disagreed. The defendant argued that the accident was caused by Robertson in using the torch to cut the lug bolts off, increasing the air pressure with the heat and causing the tire to fail. After a jury trial, judgment was entered on November 10, 1981, in favor of the plaintiff in the amount of $500,000. Although the jury found in favor of the plaintiff on count II, the negligence count, the jury found in favor of the defendant on count I, the strict liability count. Defendant appeals, raising numerous contentions, which we will address in turn.

The defendant’s first argument is that it was entitled to a directed verdict, or a judgment n.o.v., against the plaintiff, for three reasons. It asserts that evidence did not show a design defect in the roof bolter but merely bad maintenance; evidence did not show breach of a duty to instruct or warn since the deceased’s employer knew about the danger involved; and the evidence did not show proximate cause because the deceased’s improper maintenance of the machine made the explosion unforeseeable.

Directed verdicts and judgments n.o.v. are proper “only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.” (Pedrick v. Peoria & Eastern R.R. Co. (1977), 37 Ill. 2d 494, 509-10, 229 N.E.2d 504, 513.) Pedrick emphasizes that the parties have a right to have substantial factual disputes resolved by the jury. Pedrick v. Peoria & Eastern R.R. Co.; Sunseri v. Puccia (1981), 97 Ill. App. 3d 488, 422 N.E.2d 925.

Applying the Pedrick standard, we hold that the defendant was not entitled to a directed verdict or a judgment n.o.v. Although the defendant mentions several aspects of the evidence which tend to support its theory of the case, this is not enough to satisfy the Pedrick test. The defendant discounts the value of much testimony in favor of the plaintiff, when the very existence of this testimony is reason for the case to go to the jury.

Evidence establishing a design defect included the testimony of George Forman, a professor of mechanical engineering at the University of Kansas. Professor Forman testified, in part:

“I believe the defect is that the design configuration, the arrangement of the design makes it possible to disassemble the wheel with the tire still inflated. There are designs that have been known for many years in which it is mandatory, necessary to deflate the tire prior to disassembling the wheel.”

Professor Forman added that the wheel should have been designed so it was impossible to take the two halves of it apart without first deflating the tire. In the case at bar, he stated that it was foreseeable that the bolts would break. A wheel design known as a snap ring design was available when the machine in the case at bar was purchased. In such a wheel, a ring is held in place by air pressure and cannot be removed while the tire is inflated.

In addition, Professor Forman testified that labels or warnings should have been present on the machine, stating that air pressure must be released to avoid an accident. As the machine design existed, the similarity of the lug bolt configuration to an automobile wheel encouraged the workman to believe that he should remove the wheel as an automobile wheel is removed. The extensive testimony of this experienced mechanical engineer, along with all the other evidence presented by the plaintiff, provided enough evidence for the issue of the existence of a duty and the issue of foreseeability to go to the jury.

Defendant also asserts that the jury verdict was against the manifest weight of the evidence. We disagree. Evidence adduced at trial showed that two or three of the retaining bolts were deteriorated and ineffective, according to plaintiff’s metallurgist. Defendant’s plant manager testified there were no markings of any kind on the wheel or tire indicating how air was to be put into the tire. Professor Forman testified that the design allowing the wheel to be disassembled while the tire was still inflated was more dangerous than the snap ring design. He further testified that labels or warnings should have been present. The fact that the jury chose not to believe the defense theory that Robertson caused the accident by using the cutting torch does not mean the verdict was against the manifest weight of the evidence. A jury verdict may not be set aside merely because the jury could have drawn different inferences from the evidence. Parker v. De Witt County Housing Authority (1978), 57 Ill. App. 3d 973, 373 N.E.2d 680.

Next the defendant contends that the jury’s verdicts in its favor on the strict liability count and in favor of the plaintiff on the negligence count are so inconsistent as to require a new trial. The defendant reasons that the allegations of defect in each count are identical, therefore the jury’s decisions are fatally inconsistent. The defendant’s reasoning is not necessarily correct. In any case with alternate theories of liability, jury instructions are parallel to an extent. However, the instructions contain no restriction on the jury’s power to choose either theory as a basis of liability. See generally Hasson v. Ford Motor Co. (1977), 19 Cal. 3d 530, 564 P.2d 857,138 Cal. Rptr. 705.

More important to the resolution of this issue is plaintiff’s argument that the jury received incorrect instructions on the strict liability count. Defendant’s instruction No. 7 (non-IPI) provided as follows:

“One who supplies directly or through a third person a product for another to use is subject to liability to those whom the supplier should expect to use the product with the consent of the other or to be endangered by its probable use, for physical harm caused by the use of the produce [sic] in a manner for which and by a person for whose use it is supplied, if the supplier,
(a) knows or has reason to know that the product is or is likely to be dangerous for which [sic] it is supplied, and
(b) has no reason to believe that those for whose use the product is supplied will realize its dangerous condition.”

This instruction was allowed by the trial court, pursuant to Woodill v. Parke Davis & Co. (1980), 79 Ill. 2d 26, 402 N.E.2d 194. While deliberating the jury sent a note out inquiring of this instruction: “Is this the law of the first count [sic]. And if so, do we have to agree with both a & b to find someone guilty of it [sic].” The court replied, “This instruction applies to Count I. I cannot respond further to your question.” Plaintiff argues on appeal that the instruction was erroneous in imposing a knowledge requirement on the strict liability count and the jury’s note shows reliance on the erroneous instruction.

In Woodill, the supreme court held that a knowledge requirement is a proper limitation to place on strict tort liability when the case is predicated on a failure to warn of danger inherent in the product. Specifically, once it is established that knowledge existed in an industry of a dangerous propensity of the product, plaintiff must show that the defendant did not warn of the danger in an adequate manner. The Woodill court reasoned that a manufacturer could not be held liable for failure to warn of a danger which it would be impossible to know based on existing knowledge. However, the court expressly refused to decide whether it is necessary to allege knowledge where liability is predicated on defective design. Woodill v. Parke Davis & Co. (1980), 79 Ill. 2d 26, 37, 402 N.E.2d 194, 199.

In the case at bar, a major portion of the plaintiff’s case pertained to defective design. The instruction, as given to the jury, related the law of Woodill in an overly broad manner. The court’s subsequent note .to the jury failed to resolve the jury’s misapprehension of the law. Woodill, by its own terms, did not undercut the holding of Cunningham v. MacNeal Memorial Hospital (1970), 47 Ill. 2d 443, 266 N.E.2d 897, that an inability of the defendant to discover a dangerous condition in the product is not a defense. Woodill v. Parke Davis & Co.

Because the verdict rendered on count I was based on erroneous law, we hold that the judgment entered on that verdict should be reversed and the case remanded for a new trial on that count only. Defendant argues in its reply brief that because confusion existed over the jury instructions, a new trial is required on both counts. We disagree. There was no finding by the jury in count I that the product was not defective. In addition, the record does not indicate that the jury was confused or misled by the instructions concerning negligence. Accordingly, we find no reason to remand count II for further deliberation in the trial court.

In the next argument raised by the defendant, it asserts that it was error for the trial court to sustain plaintiff’s motion to strike affirmative defense No. 2 of defendant’s answer. This defense alleged that the contributory fault or negligence of the employer, Peabody Coal Company was the sole cause or a contributing proximate cause of the death of Thomas L. Robertson. Defendant relies on the Illinois Supreme Court’s decision in Alvis v. Ribar (1981), 85 Ill. 2d 1, 421 N.E.2d 886. However, in Coney v. J. L. G. Industries, Inc. (1983), 97 Ill. 2d 104, 454 N.E.2d 197, the supreme court stated that the adoption of Illinois of comparative negligence in Alvis did not change the longstanding rule of joint and several liability. Therefore, the defense that a nonparty to the instant litigation was liable for negligence was properly rejected. (Cornell v. Langland (1982), 109 Ill. App. 3d 472, 440 N.E.2d 985.) This result is not unfair to the defendant since the recourse of a third-party action is available. See generally Maxfield v. Simmons (1982), 107 Ill. App. 3d 341, 347, 437 N.E.2d 839, 843 (Welch, J., dissenting), rev’d (1983), 96 Ill. 2d 81, 449 N.E.2d 110.

We are also unpersuaded by other myriad arguments raised by the defendant. Although defense counsel insists that no evidence supported jury instructions on negligent design, construction and warning, we have found ample testimony supporting these instructions. While the defense asserts that the trial court erred in telling the jury that defendant’s instruction No. 7, discussed above, applies to count I, we do not deem this communication reversible error concerning the negligence count. Although the remark by the court was erroneous concerning count I, the defendant was not prejudiced with reference to count II and no new trial is warranted on count II.

In addition, denial of defendant’s instruction No. 9 did not constitute reversible error, despite defense contentions to the contrary. The instruction stated:

“There is no duty upon the manufacturer of the roof bolting machine to manufacture the product with a different design, if the different design is not feasible. Feasibility includes not only elements of capability of obtaining [sic], economy, effectiveness and practicality, but also technological possibilities under the state of the manufacturing art at the time the product was produced.”

Although this instruction accurately states the law of products liability (Kerns v. Engelke (1979), 76 Ill. 2d 154, 390 N.E.2d 859), we find that the trial court’s refusal to allow it did not affect the jury’s verdict on count II. Defendant has cited no authority which establishes that feasibility jury instructions are required in negligence cases in addition to instructions on the elements of negligence. Accordingly, we hold that denial of this instruction does not necessitate a new trial on the negligence count.

Likewise, we reject defendant’s argument that the trial court erred in refusing the defendant’s special interrogatory: “Was the negligence of the Plaintiff’s decedent the only proximate cause of the Plaintiff’s damages other than the negligence of persons who are not a named Defendant in this suit?” After plaintiff’s counsel objected to the language about other persons not named in this suit, the trial court rejected the interrogatory as possibly misleading. The court granted defense counsel leave to amend his interrogatory to avoid confusion. Since interrogatories should not be misleading, confusing or ambiguous (Gronlund v. Forsman (1906), 124 Ill. App. 362), and since counsel was given the opportunity to clarify his interrogatory, we find no error on the part of the trial court.

Finally, we reject defendant’s contention that the trial court erred in allowing plaintiff’s instruction No. 18. The instruction stated:

“As to Count II, if the pecuniary loss sustained by the widow and daughter of Thomas L. Robertson were proximately caused in whole or in part by the negligence of the defendant, then that defendant shall be liable in damages to the plaintiff. Contributory negligence on the part of Thomas L. Robertson shall not bar a recovery, but the damages shall be diminished in proportion to the amount of negligence attributable to Thomas L. Robertson.”

The defendant contends this instruction is in error because it tells the jury to compare Robertson’s negligence only with that of the defendant, without making mention of any negligence by Peabody Coal Company. However, as we have already noted, a judgment need not be reduced because of the negligence of other persons outside of the litigation.

After reading the record on appeal and examining the arguments of the parties, we have concluded that no errors were committed which require a new trial on count II, the negligence count. The jury’s verdict on that count was fully supported by the extensive evidence presented and nothing in the record indicates a new trial is necessary. In reference to count I, the strict liability count, we find that the jury was erroneously instructed. Therefore, the judgment on count I is reversed and this cause remanded for further proceedings consistent with this opinion.

Affirmed in part, reversed in part, remanded.

EARNS and KASSERMAN, JJ., concur.


author: JUSTICE EARNS

text:
    DONALD HADLEY, Plaintiff-Appellant, v. WITT UNIT SCHOOL DISTRICT 66 et al., Defendants-Appellees.
    Fifth District
    No. 5 — 83—0594
    Opinion filed April 9, 1984.
    Alfred B. LaBarre, of Ensel, Jones, Blanchard & LaBarre, of Springfield, for appellant.
    Ralph A. Vandever, of Vandever & Vandever, of Hillsboro (Stephen R. Cullison, of counsel), for appellees.
   JUSTICE EARNS

delivered the opinion of the court:

Donald Hadley, a high school student injured during an industrial arts class, appeals from the judgment of the circuit court of Montgomery County granting partial summary judgment in favor of the defendants, teacher John Alexander and the Witt Unit School District 66. The court dismissed counts I, II and IV of Hadley’s complaint with prejudice and without leave to amend. The trial court found its judgment with regard to counts I, II and IV was final and there was no just reason to delay an appeal. 87 Ill. 2d R. 304(a).

Alexander taught an industrial arts class in which Hadley was one of four students. On the day of the accident, the class had a woodworking assignment, but the four boys tried to pound a piece of scrap metal through a hole in an anvil. The metal had been donated by Caterpillar Corporation seven or eight years before the accident. Alexander did not solicit the donation or specify the kind of metal to be provided. The boys hammered on the metal for more than 10 and perhaps as much as 20 minutes. At one point, Alexander stood six or seven feet away from the anvil while they worked on the metal. He told them once to stop hammering, but after he went back to his office in another room they continued beating on the metal. Alexander had previously instructed the class on the need to use safety goggles when doing dangerous work. He did not direct the boys to use goggles on the day of the accident. A metal chip flew into Hadley’s eye, causing trauma and visual impairment.

Hadley’s complaint was stated in four counts. Count I alleged Alexander’s negligent supervision and furnishing of unsafe equipment. Count III alleged the school district’s liability for Alexander’s negligence as set out in count I and for its own negligence in providing unsafe equipment. Count II alleged that Alexander acted wilfully and wantonly in not putting an end to the hammering once he observed the dangerous activity. Count IV sought to hold the school district liable for Alexander’s wilful and wanton conduct described in count II. The court’s grant of summary judgment for the defendants left only count III standing. After considering -the plaintiff’s motion to reconsider and depositions offered in support of the motion, the court affirmed its original decision.

The first issue presented for review is whether the trial court correctly dismissed count I, which sought to hold Alexander liable for ordinary negligence in failing to supervise students and failing to provide safe equipment. The dismissal was correct because a teacher is immune from liability for ordinary negligence, even if he furnishes equipment to students. The second issue is whether the trial court correctly dismissed counts II and IV because Hadley failed to state as a matter of law a cause of action for wilful and wanton misconduct against Alexander. We find that Hadley stated a cause of action for wilful and wanton misconduct. The dismissal of counts II and IV was error.

One matter is very clear: teachers are not liable for ordinary negligence in the performance of their supervisory duties. (Thomas v. Chicago Board of Education (1979), 77 Ill. 2d 165, 395 N.E.2d 538; Merrill v. Catholic Bishop (1972), 8 Ill. App. 3d 910, 290 N.E.2d 259; Woodman v. Litchfield Community School District No. 12 (1968), 102 Ill. App. 2d 330, 242 N.E.2d 780.) The School Code confers upon a teacher the status of a parent or guardian with regard to “all activities connected with the school program.” (Ill. Rev. Stat. 1983, ch. 122, par. 24 — 24.) The status in loco parentis shields a teacher from liability in both nondisciplinary and disciplinary matters. Kobylanski v. Chicago Board of Education (1976), 63 Ill. 2d 165, 347 N.E.2d 705.

It is equally clear that school districts are liable for their own negligence in “furnishing equipment which [is] alleged to be inadequate, ill fitting and defective and which was known, or which in the exercise of ordinary care should have been known, to be liable to cause injury to the plaintiff.” (Gerrity v. Beatty (1978), 71 Ill. 2d 47, 52, 37 N.E.2d 1323, 1326.) If a complaint combines elements of negligent supervision with a primary allegation that the school district negligently provided hazardous equipment, the negligence count cannot be barred as a matter of law because the district has a duty to provide safe equipment. (Nielsen v. Community Unit School District No. 3 (1980), 90 Ill. App. 3d 243, 412 N.E.2d 1177.) Hadley’s count I did not allege any negligence by the school district and need not be preserved on that account.

The basis for imposing ordinary negligence liability on school boards with regard to furnishing equipment while immunizing teachers from equivalent liability for negligence in their duties is, in part, a recognition that school districts have authority to purchase and supply equipment to students and teachers have no such authority. (Thomas v. Chicago Board of Education (1979), 77 Ill. 2d 165, 395 N.E.2d 538.) Moreover, “[t]o hold school districts to the duty of ordinary care in such matters would not be unduly burdensome ***.” (Gerrity v. Beatty (1978), 71 Ill. 2d 47, 52, 373 N.E.2d 1323, 1326.) On the other hand, providing immunity to teachers is intended to encourage them to use their broad discretion in managing the teacher-student relationship which would be “seriously jeopardized *** [by] ordinary negligence actions for accidents occurring in the course of the exercise of such authority.” Gerrity v. Beatty (1978), 71 Ill. 2d 47, 51, 373 N.E.2d 1323,1325.

Hadley now asks us to decide whether a teacher who receives donated equipment he neither solicited nor specified has surrendered his immunity from liability for ordinary negligence if the equipment proves to be unsafe. Although the present situation is somewhat different from that in Thomas v. Chicago Board of Education (1979), 77 Ill. 2d 165, 395 N.E.2d 538, the same principles apply. In Thomas the coaches provided football players with equipment furnished by the school district. The court refused to extend negligence liability “to individual teachers and coaches, and make them liable for failure to exercise ordinary care in the course of furnishing equipment to students.” (Thomas v. Chicago Board of Education (1979), 77 Ill. 2d 165, 170-71, 395 N.E.2d 538, 540.) Three reasons were given for this decision, only one of which is the distinction between the school district’s authority to furnish and the teacher’s authority to supervise the use of equipment. Additionally, the court found that an extension of liability to teachers might encourage litigation disruptive of “student-teacher harmony.” Furthermore, the threat of negligence liability could burden the teacher “to the extent that *** [he] might become immobile in the performance of his obligations.” (Thomas v. Chicago Board of Education (1979), 77 Ill. 2d 165, 172, 395 N.E.2d 538, 541.) For all the foregoing reasons, the court found that “absent wilful and wanton conduct in the course of their supervisory authority, which encompasses inspecting and supplying the students with equipment, teachers and coaches are immune under Sections 24 — 24 and 34 — 84a of the School Code.” (Emphasis added.) We see no reason to reduce the protection for the teacher-student relationship and the teacher’s discretion simply because the equipment came directly into the teacher’s hands as a donation rather than as a purchase by the school board. We affirm the trial court’s judgment as to count I of Hadley’s complaint.

To impose liability on a teacher, the plaintiff must show that his injury resulted from the defendant’s wilful and wanton misconduct. Kobylanski v. Chicago Board of Education (1976), 63 Ill. 2d 165, 347 N.E.2d 705.

“A wilful or wanton injury must have been intentional or the act must have been committed under circumstances exhibiting a reckless disregard for the safety of others, such as a failure, after knowledge of impending danger, to exercise ordinary care to prevent it or a failure to discover the danger through recklessness or carelessness when it could have been discovered by *** ordinary care.” (Schneiderman v. Interstate Transit Lines, Inc. (1946), 394 Ill. 569, 583, 69 N.E.2d 293, 300.)

See also Lynch v. Board of Education (1980), 82 Ill. 2d 415, 412 N.E.2d 447; Pomrehn v. Crete-Monee High School District (1981), 101 Ill. App. 3d 331, 427 N.E.2d 1387; Landers v. School District No. 203 (1978), 66 Ill. App. 3d 78, 383 N.E.2d 645. The question of whether certain acts amount to wilful and wanton misconduct is normally a question of fact to be determined by a jury. (Stamat v. Merry (1979), 78 Ill. App. 3d 445, 397 N.E.2d 141.) The summary judgment proceeding is not an appropriate forum for trying a factual issue such as wilful and wanton misconduct, but is intended only to determine whether there is an issue of fact to be tried. (Cato v. Thompson (1980), 83 Ill. App. 3d 321, 403 N.E.2d 1239.) If the facts permit more than one conclusion, including one unfavorable to the moving party, a summary judgment should be denied. Smothers v. Butler (1979), 78 Ill. App. 3d 1018, 398 N.E.2d 12.

In the present case, count II incorporates facts stated in count I alleging that Alexander was present and observed the students’ hammering of the metal, that he knew or should have known hammered metal could splinter and that he failed to direct the students to wear goggles. It is alleged in count II that his failure to act in the face of a dangerous situation constitutes wilful and wanton misconduct for which Alexander could be liable. We find count II sufficiently states a cause of action against Alexander. The factual allegations of count I are also incorporated into count IV which seeks to hold the school district liable for Alexander’s wilful and wanton misconduct. We find that count IV states a cause of action against the school district. From the facts presented to the trial court in Hadley’s memorandum and Alexander’s deposition offered in opposition to defendants’ motion for summary judgment, a jury could have inferred “ '*** a reckless disregard for the safety of others *** after knowledge of impending danger ***.’ ” (See Bernesak v. Catholic Bishop (1980), 87 Ill. App. 3d 681, 686, 409 N.E.2d 287.) The granting of summary judgment was improper where there was an issue suitable for jury determination.

For reasons set forth above, the trial court’s judgment as to count I is affirmed and its judgment as to counts II and IV are reversed. The cause is remanded for trial on the issues stated in counts II, III and IV.

Affirmed in part; reversed in part and remanded.

HARRISON and KASSERMAN, JJ., concur.


author: JUSTICE HARRISON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILBUR McLAUGHLIN, Defendant-Appellant.
    Fifth District
    No. 5-83-0307
    Opinion filed April 9, 1984.
    Walter S. Clifton, Jr., of Urbana, for appellant.
    Terry M. Green, State’s Attorney, of Benton (John X. Breslin and Terry A. Mertel, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE HARRISON

delivered the opinion of the court:

Following a bench trial in the circuit court of Franklin County, Wilbur McLaughlin, defendant, was convicted of two counts of deceptive practices. Defendant was subsequently sentenced to two years’ probation, fined $200 and ordered to make restitution. On appeal, defendant contends that he was not proved guilty beyond a reasonable doubt. We agree and reverse.

The sole witness called by the State at trial was Genevieve Janello, wife of the owner of Janello Motors of Mulkeytown, Illinois. Ms. Janello testified that, in November of 1979, she and her husband entered into a contract with defendant under which defendant was to purchase junk cars located on the property of Janello Motors. Under the terms of the agreement, defendant was to pay $40,000 for 1,186 cars. Ms. Janello indicated that the cars were located on four different sections of ground, and that defendant “was to pay for each section of ground as he crushed them, which would make *** $10,000 per section.” On April 23, 1980, defendant gave Ms. Janello four $5,000 checks. Ms. Janello testified as to the circumstances surrounding this event:

“Mr. McLaughlin came to the office, and he asked me if I would count the loads of cars as they were taken out and to deposit the checks. And I honored his wishes, and he said the money would be in the bank when these were presented to the bank. My husband wasn’t there, and I had to work as a representative for him. And that was the only hope I had was his word.”

In accordance with her conversation with defendant, Ms. Janello deposited one check immediately, and then deposited each additional check upon observing that defendant had removed six more loads of cars. While the first two checks cleared without difficulty, the third check, which Ms. Janello attempted to deposit on May 5, 1980, was not honored due to insufficient funds in defendant’s account. The fourth check, which Ms. Janello tried to deposit on May 9, 1980, was dishonored for the same reason. On cross-examination, Ms. Janello testified that defendant told her that the checks “would all be good when presented at the bank.”

Following Ms. Janello’s testimony, the bank records of defendant’s auto crushing business for April and May, 1980, were admitted into evidence. These records indicate that the balance in defendant’s checking account was less than $5,000 throughout May, including on the date the dishonored checks were presented by Ms. Janello. The defense offered no evidence.

In asserting that he was not proved guilty beyond a reasonable doubt, defendant specifically contends that the evidence failed to establish the intent to defraud necessary to sustain a conviction under section 17 — 1(d) of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 17 — 1(d)). We agree. “Where the parties agree at the time the check is issued that it shall not be presented for payment until a later date, and the fair implication is that there were not sufficient funds at the time the check was issued [,] the offense is generally held not to have been committed because the fraudulent intent is lacking, the transaction being in its essential nature an extension of credit to the drawer.” (People v. Cundiff (1973), 16 Ill. App. 3d 267, 270, 305 N.E.2d 735.) Cundiff appears to be in accord with the general weight of authority regarding this question. (See 35 C.J.S. False Pretenses sec. 21(b)(2) (1960).) While we recognize that we may not lightly disturb the findings of a trial court in a bench trial, we are compelled to conclude that the “fair implication” of defendant’s representations to Ms. Janello put her on notice that defendant did not have sufficient funds to cover all four checks when he gave them to her. Ms. Janello twice indicated that defendant told her that the checks would be good “when presented to the bank”; these statements, coupled with defendant’s requests that presentment of the checks be delayed, operated to inform Ms. Janello that defendant did not have sufficient funds in his account to cover the checks when he wrote them. Thus, under the rule articulated in Cundijf, we must conclude that the State failed to prove beyond a reasonable doubt that defendant possessed the requisite intent to defraud when he wrote the checks. In view of our disposition of this case, we need not consider defendant’s alternative contention that he was not proved guilty because the checks were in payment of a preexisting debt.

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

Reversed.

KASSERMAN and EARNS, JJ., concur.


author: JUSTICE JONES

text:
    FRATERNAL ORDER OF POLICE LODGE NO. 108 et al., Plaintiffs-Appellee, v. THE VILLAGE OF WASHINGTON PARK, Defendant-Appellant.
    Fifth District
    No. 83 — 86
    Opinion filed April 6, 1984.

      Stephen R. Rice, of Rice, Durso & Rice, of Belleville, for appellant.
    Thomas Benedick, of O’Fallon, for appellees.
   JUSTICE JONES

delivered the opinion of the court:

Plaintiffs, Fraternal Order of Police Lodge No. 108 and Joseph Russell, brought the instant action to compel the defendant, the village of Washington Park, to arbitrate the issue of sick pay for member police officers. The action was based upon the parties’ collective-bargaining agreement, which provided for the arbitration of disputes arising under the agreement. By way of defense, the village contended that it had lawfully terminated the collective-bargaining agreement before grievance procedures were initiated under that agreement. After a hearing the trial court entered judgment in favor of the plaintiffs and ordered the defendant to submit to arbitration. We affirm.

It was stipulated by the parties that the agreement concerning sick pay was in effect at least until December 15, 1981. On that date the village board of trustees passed a resolution terminating the agreement. The plaintiffs subsequently initiated grievance procedures concerning claims for sick pay by 10 village police officers for the week of December 7, 1981, through December 15, 1981. Despite the fact that the plaintiffs followed grievance procedures set out in the agreement, the village refused to submit to arbitration on the issue of sick pay.

The plaintiffs filed a petition to compel arbitration, and a hearing was held on the complaint. Kenneth Koski, chief of police for the village, testified that immediately prior to December 4, 1981, there were 10 full-time police officers, seven part-time police officers, and four police dispatchers employed by the village. On December 1, 1981, Joseph Russell, one of the 10 full-time officers, was “laid off” by the village. A dispute arose between the plaintiff police union and the village regarding the decision to lay off Joseph Russell.

On December 4, 1981, all of the officers assigned to the day shift (8 a.m. to 4 p.m.) reported for duty. The whole shift of three officers assigned to work from 4 p.m. to 12 a.m. reported in sick. The two officers working the 12 a.m. to 8 a.m. shift the next morning also called in sick. On December 5, 1981, only one officer appeared for duty, and the other officers called in sick.

All of the officers who had reported in sick on December 4-5, 1981, stayed off work until December 16, 1981. In addition to the seven full-time police officers failing to report for work during that period, three full-time dispatchers called in sick, and all of the part-time officers contacted during that time declined to work.

On December 15, 1981, police chief Koski was directed by the village board to order the men back to work. Koski sent registered letters ordering the officers to return to work or report to the village doctor for a physical. Koski stated that he believed all of the officers reported to the doctor.

“The doctor sent back doctor certificates stating what they [the officers] claimed their illness was and some of them were ordered back to work by him and some of them were still off a few days.”

None of the officers violated the order to return to work, and all of the officers provided Koski with a doctor’s excuse for the time they were off work.

Koski testified further that there had been no similar failure of police officers to report for work during the year prior to December 4, 1981. In Koski’s six years as police chief, he had experienced no other period when approximately 60% of the police force was off duty at the same time.

Ralph Franklin, president of the village board of trustees, testified that the village had been in negotiations with the plaintiff police union prior to December 1, 1981, when Joseph Russell was laid off. At that time Russell had held the position of secretary of the union and was one of its negotiators.

Franklin stated that Thomas Benedick, attorney for the union, had met with the members of the village board following their regular meeting on December 8,1981. On that occasion, Franklin testified,

“we discussed about [sic] the different things we were hung up on the contract. I think there [were] about three issues and we — two of them we got away with but the main thing he went back to them — I think we agreed with two out of three and he went back and told the officers of the union and he came back and he said there would be no deal unless Mr. Russell [was] called back to work. There wouldn’t be no settlement [sic] of the contract.”

According to Franklin, Benedick “indicated” that the work stoppage would be ended if Russell were reinstated but “[h]e didn’t say it. I don’t know what kind of words [sic] because everyone was talking about it after he left.” The board refused to call Russell back to work at that time.

At its next regular meeting on December 15, 1981, the village board passed a resolution terminating the contract between the policemen and the village. Franklin stated that this decision was a result of the board’s opinion that the policemen were on strike. That opinion was based upon the board’s previous discussion with Benedick and upon statements given to the press by Benedick and others as well as upon “the logical thinking that seventeen guys all sick at one time [s-ic].”

Stephen Marty, called by the defendant, testified that he had been president of the police union in December 1981. As such he took part in the negotiations between the union and the village and also served as a union spokesman with the news media. Although he recalled having talked with a newspaper reporter from the Belleville News-Democrat during that period, he denied having made the statement that the “[police officers] will not be back until Russell is reinstated. Our position is that they shouldn’t go back until they are 100 percent physically well.” He admitted having told the reporter, however, that the police officers were suffering from “a very contagious strain of flu.” Kathy Bruemmer, the reporter who conducted the interview with Marty, testified that Stephen Marty had in fact made the statement denied by him.

Following argument by the parties, the court ordered the village to proceed to arbitration on the issue of whether the police officers were entitled to compensation for the period in question. In making its ruling the court noted that the sole issue before it was whether the plaintiffs had a right to arbitrate the matter of sick pay and not whether the plaintiffs’ actions constituted a strike so as to bar them from such compensation. Finding that the plaintiffs did in fact have the right to arbitrate under the agreement in effect at the time, the court ruled that the village “[could not now] be heard to have terminated [this right] after the cause of action arose.”

On appeal from this judgment, the village contends that, because the plaintiffs here violated the terms of the agreement by engaging in an unlawful strike, they cannot invoke its provisions to compel arbitration of their claims for sick pay. The village asserts that the facts of this case clearly establish the existence of such a strike. Therefore, the village contends, it was justified in terminating its agreement with the plaintiffs, and the court’s order to submit to arbitration under that agreement was erroneous.

Upon consideration of the agreement in question and the applicable law regarding the arbitration of disputes, we find that the trial court acted properly in requiring the parties to arbitrate the issue of the plaintiffs’ claims for sick pay. By the terms of the agreement the parties were obligated to arbitrate “any dispute *** raised by the [plaintiffs] against the Village involving the meaning, interpretation or application” of the agreement. Moreover, under section 1 of the Uniform Arbitration Act (Ill. Rev. Stat. 1981, ch. 10, par. 101), which is deemed to be a part of any such agreement in this State (School District No. 46 v. Del Bianco (1966), 68 Ill. App. 2d 145, 215 N.E.2d 25; Premier Electrical Construction Co. v. Ragnar Benson, Inc. (1982), 111 Ill. App. 3d 855, 444 N.E.2d 726), the parties’ agreement was irrevocable except by mutual consent (3 Ill. L. & Prac. Arbitration & Awards sec. 3 (1953); see also Golden Seed Co. v. Funk Seeds International, Inc. (1974), 21 Ill. App. 3d 131, 315 N.E.2d 140). Thus, the village, without more, could not have unilaterally terminated the parties’ agreement to arbitrate by its resolution of December 15, 1981.

While the village argues that it was justified in terminating the agreement because the plaintiffs’ actions constituted a strike in violation of the agreement, the trial court correctly ruled that this was not an issue to be decided upon the plaintiffs’ complaint for arbitration. Rather, under the applicable principles governing the arbitration of disputes, the court’s inquiry was limited to the threshold question of the arbitrability of the plaintiffs’ claims, and the court was precluded from making a determination regarding the merits of the dispute. (Ill. Rev. Stat. 1979, ch. 10, par. 102; Security Mutual Casualty Co. v. Harbor Insurance Co. (1979), 77 Ill. 2d 446, 397 N.E.2d 839; Croom v. City of De Kalb (1979), 71 Ill. App. 3d 370, 389 N.E.2d 647.) The plaintiffs’ claims for sick pay here were, on their face, governed by the parties’ contract, and the court could not accept the village’s argument without ruling on the merits of the sick-pay issue. (Cf. Stuart Dean Co. v. Lurie (1979), 69 Ill. App. 3d 844, 388 N.E.2d 118 (court declined to rule on the question of the defendants’ alleged breach of contract, holding that the defendants could not avoid complying with the arbitration clause by merely alleging that the plaintiff had breached the contract).) The court therefore properly limited its inquiry to the arbitrability of the plaintiffs’ claims, and we find no basis for reversing the court’s decision in this regard.

Affirmed.

KASSERMAN and HARRISON, JJ., concur.


author: JUSTICE EARNS PRESIDING JUSTICE WELCH,

text:
      In re MARRIAGE OF JOHN A. SPOMER, Petitioner-Appellee, and KATHLEEN F. SPOMER, Respondent-Appellant.
    Fifth District
    No. 83 — 69
    Opinion filed March 27, 1984.

      WELCH, P.J., dissenting.
    Robert D. Owen and Leslie L. Veon, both of Owen, Roberts, Susler & Murphy, P.C., of Decatur, for appellant.
    Harrison, Lambert and Wilson, of Marion, for appellee.
   JUSTICE EARNS

delivered the opinion of the court:

The marriage of petitioner John A. Spomer and respondent Kathleen E Spomer was dissolved by the circuit court of Williamson County on September 9, 1982. The judgment of the circuit court incorporated a marital settlement agreement signed by the parties. On January 17, 1983, respondent’s motion to vacate the judgment of dissolution filed pursuant to section 2 — 1203 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1203) was denied. She appeals.

Respondent raised five arguments in her brief. She asserted that: (1) the trial court erred in failing to ascertain whether the visitation privileges of the separation agreement were reasonable and in the best interests of the child; (2) the trial court erred in denying respondent’s motion to vacate where the manifest weight of the evidence demonstrated that respondent executed the agreement under duress; (3) the trial court erred in failing to apply the unconscionability standard to determine whether the separation agreement should be vacated; (4) the trial court erred in not finding the separation agreement unconscionable; and (5) the trial court erred in denying respondent’s motion for a change of venue.

Oral arguments were heard on October 18, 1983. Then, on November 21, 1983, respondent filed a “Motion for Modification of Appeal,” informing this court that she was married on November 17, 1983. Accordingly, she modified her request that the judgment of dissolution be vacated and now requests that this court “*** vacate only that portion of the trial court’s judgment concerning child custody, support and visitation ***.” Respondent’s motion for modification of her prayer for relief was granted on December 1, 1983.

Parties may expressly withdraw or eliminate an argument on appeal even after briefs are filed or the case has been argued. (See O’Hare International Bank v. Feddeler (1973), 16 Ill. App. 3d 35, 305 N.E.2d 325; Cole v. Glasgow (1946), 329 Ill. App. 176, 67 N.E.2d 312 (abstract).) It is a necessary corollary to that rule that any arguments which depend on the withdrawn issues must also be deemed waived. Here, the respondent has expressly requested this court not to set aside that portion of the judgment of the trial court which dissolved the marriage of the parties, as opposed to the visitation and support provisions of that judgment. Accordingly, we need not address respondent’s initial arguments concerning the alleged duress and unconscionability of the marital settlement agreement and concerning allegedly improper venue. After these arguments are eliminated, respondent’s sole remaining contention on appeal is that the trial court erred in failing to ascertain whether the visitation privileges and child-support provisions of the agreement were reasonable and in the best interests of the child. We now turn to this argument.

The child, John Waldemar Spomer, was 11 months old when the petition for dissolution of marriage was filed on June 7, 1982. Under the settlement agreement signed by the parties, respondent received custody of the child, petitioner received six weeks of summer visitation, one week at Christmas and one week at Easter, plus alternate legal holidays and birthdays and the paternal grandparents, W. C. Spomer and Dorothy W. Spomer, received one week visitation every two months which shall continue until the child attends school at which time the visitation should not interfere with the child’s attendance at school. Petitioner was ordered to pay $250 monthly child support. On appeal, respondent asserts that the trial court erred in awarding visitation privileges to the grandparents and by failing to ascertain the reasonableness of visitation privileges granted to the petitioner and the child support awarded to respondent. Petitioner replies that courts favor written agreements between the parties concerning custody and visitation of a child and that the award of visitation rights to the grandparents was proper.

In her petition to vacate, respondent alleged that she signed the marital settlement agreement under duress and overreaching and that the judgment of dissolution which incorporated this agreement was unconscionable. At the hearing on the motion to vacate, it was asserted that because of Kathleen’s physical and mental condition at the time she signed the agreement, the assent to the terms was the result of compulsion exerted on her by her husband and the Spomer family.

The parties’ child was born in Hawaii, where both parents were serving as first lieutenants in the United States Air Force. Kathleen held two master’s degrees and was a graduate from the Air Force Intelligence School. Prior to her marriage she had been employed as a speech writer for the Governor of Illinois.

She had suffered complications from a bladder injury incurred in the delivery of her son by caésarean operation. It resulted in her leaving the Air Force and returning to her home in Decatur for surgery. At the date of the hearing she considered herself “a bit disabled” and she was still under the care of several physicians, including a psychiatrist. She testified that she felt at the time she signed the marriage settlement agreement that she could not get a fair hearing in court in Cairo or in the first judicial circuit because of the influence of the Spomer family,' her mother-in-law being a retired circuit judge of that circuit and her husband’s brother then serving as the resident circuit judge of Alexander County.

Kathleen’s motion for change of venue from the First Judicial Circuit was abandoned after the marriage settlement agreement was concluded and the matter was heard in the circuit court of Williamson County by agreement.

The trial court concluded that Kathleen’s consent to the marriage settlement agreement was a reasoned one, arrived at over several months of negotiations between her attorney and the attorney for her husband and that she was an active, informed participant in these negotiations. This conclusion finds abundant support in the record, and we conclude that Kathleen’s belated assertions of confusion and compulsion are simply not supported by anything appearing in the record of the hearing on her motion to vacate. The terms of the settlement agreement were finally concluded after a lengthy conference at her attorney’s office in Decatur, and the final agreement was prepared by her attorney.

It appears to us that an award of $250 monthly is not unreasonable support for a 15-month-old child, considering that support awards may be changed from time to time as circumstances dictate. We need say nothing more about the award of child support.

This agreement was not the product of duress but of compromise after lengthy negotiations. Measured by any standard, we agree with the trial court that the terms of the agreement are not unconscionable. See Ill. Ann. Stat., ch. 40, par. 502(b), Historical & Practice Notes, at 400-01 (Smith-Hurd 1980); In re Marriage of Carlson (1981), 101 Ill. App. 3d 924, 428 N.E.2d 1005.

During these negotiations, Kathleen advised her attorney that she had no objection to grandparental visitation one weekend every month provided the child would be picked up and returned to her home in Decatur.

In Beattie v. Beattie (1977), 53 Ill. App. 3d 501, 368 N.E.2d 178, the court, observed that it is normal for a spouse to be nervous and upset at the time of a divorce; however, such a condition cannot serve as a reason to set aside a decree that adopts a separation agreement voluntarily entered into.

Complaint is made that the husband filed suit in Alexander County. It cannot be considered coercive to file an action for dissolution in the county of one’s residence (Zeeb v. Zeeb (1979), 76 Ill. App. 3d 894, 395 N.E.2d 660), nor is it evidence of coercion or overreaching that one should initially seek custody or joint custody of his minor child. As the court observed in Kaplan v. Kaplan (1962), 25 Ill. 2d 181, 182 N.E.2d 706, acts or threats cannot constitute duress unless they are wrongful, legally or morally. It is neither legally nor morally wrong for a father to insist on his marital rights in the course of dissolution litigation. The courts have consistently rejected the kind of contentions made here by respondent. See, e.g., Zeeb v. Zeeb (1979), 76 Ill. App. 3d 894, 395 N.E.2d 660; In re Marriage of Nitzkin (1978), 66 Ill. App. 3d 495, 384 N.E.2d 71; Beattie v. Beattie (1977), 53 Ill. App. 3d 501, 360 N.E.2d 178.

Section 502(b) of the Illinois Marriage and Dissolution of Marriage Act provides that the terms of a separation agreement concerning the support, custody and visitation of minor children are not binding upon a court. (Ill. Rev. Stat. 1981, ch. 40, par. 502(b).) The section places upon the court a duty to protect the children involved by carefully examining the separation agreement. An agreement of the parties concerning visitation does not bind the trial court when the best interests of the child are to the contrary. (In re Marriage of Solomon (1980), 84 Ill. App. 3d 901, 405 N.E.2d 1289.) Yet, courts have traditionally given great weight to parental agreements regarding child custody, as it may normally reasonably be assumed that parents, considering the best interests of their children, would be in a better position than the court to make these decisions. Section 502(a) of the Act (Ill. Rev. Stat. 1981, ch. 40, par. 502(a)) encourages amicable settlement of all disputes between the parties in dissolution proceedings, including custody and visitation of children.

In In re Marriage of Ayers (1980), 82 Ill. App. 3d 164, 402 N.E.2d 401, the issue before the court was child custody, not visitation, nonetheless, the discussion of that issue is instructive, here. The court was considering whether stipulated child custody agreements may be adopted by the court under section 602 (Ill. Rev. Stat. 1981, ch. 40, par. 602) of the Act. This provision requires that the court determine custody in accordance with the best interest of the child after considering certain enumerated factors. The court noted that section 502(a) of the Act provided:

“(a) To promote amicable settlement of disputes between parties to a marriage attendant upon the dissolution of their marriage, the parties may enter into a written or oral separation agreement containing provisions for disposition of any property owned by either of them, maintenance of either of them and support, custody and visitation of their children.” (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 40, par. 502(a).)

Observing that the terms of a separation agreement are not binding upon the court as to support, custody and visitation, the court concluded:

“We do not find that the Marriage and Dissolution of Marriage Act requires that parties enter into a child custody battle when they have no desire to do so. Stipulated child custody settlements have long been recognized in this State, unless contrary to the best interests of the child. (See, e.g., Caulkins v. Caulkins (1979), 68 Ill. App. 3d 284, 285-86, 385 N.E.2d 1117; DeFranco v. DeFranco (1979), 67 Ill. App. 3d 760, 384 N.E.2d 997.)” (In re Marriage of Ayers (1980), 82 Ill. App. 3d 164, 172, 402 N.E.2d 401, 407.)

In In re Marriage of Herron (1979), 74 Ill. App. 3d 748, 751, 393 N.E.2d 1153, 1155, the court made the same observation regarding an agreement as to split custody of two children:

“The parents obviously know more about the family than a judge is likely to learn in a short, formal hearing. In a more or less amicable dissolution, the parents’ natural desire to do what is best for their children gives any agreement about custody great weight as an indicator of what is in the best interest of the children. Moreover, amicable settlement of custody arrangements is a good thing in itself, for peace between the parents must benefit the children; and a court will hesitate to tamper with what may be a fragile agreement, worked out only with difficulty.”

Both parties rely on section 607(b) of the Marriage and Dissolution of Marriage Act to advance their positions regarding grandparental visitation. Respondent argues that section 607(b) of the Act, added by amendment, effective January 1, 1982 (Ill. Rev. Stat. 1981, ch. 40, par. 607(b)), requires a showing of special circumstances before a court can award visitation to grandparents. That section provides:

“The court may grant reasonable visitation privileges to a grandparent or great-grandparent of any minor child upon the grandparents’ or great-grandparents’ petition to the court, with notice to the parties required to be notified under Section 601 of this Act, if the court determines that it is in the best interest and welfare of the child and may issue any necessary orders to enforce such visitation privileges.”

We believe, however, that this provision is applicable when the grandparents are seeking visitation and the custodial parent or parents are resisting such visitation. Since it provides that the grandparents may petition the court, it obviously envisions a dispute that must be resolved by the court. We conclude this provision was intended to change the law that had been developed in prior decisions of the courts. See Ill. Ann. Stat. ch. 40, par. 607(b), Historical and Practice Notes, at 22 (Smith-Hurd 1983 Supp.).

Prior to this amendment, visitation rights could be granted to grandparents over the objection of the custodial parent only under special circumstances. (Chodzko v. Chodzko (1976), 66 Ill. 2d 28, 360 N.E.2d 60; Hawkins v. Hawkins (1981), 102 Ill. App. 3d 1037, 430 N.E.2d 652.) Special circumstances cited with approval by the Illinois Supreme Court in Chodzko included: when the father was inducted into the armed forces and sent to a post which precluded virtually all contact with the child (Solomon v. Solomon (1943), 319 Ill. App. 618, 49 N.E.2d 807); when the father had died and his parents were trustees of a fund for the benefit of the child (Lucchesi v. Lucchesi (1947), 330 Ill. App. 506, 71 N.E.2d 920); and, when the mother had died and her parents had a close relationship with the child (Boyles v. Boyles (1973), 14 Ill. App. 3d 602, 302 N.E.2d 199). (Chodzko v. Chodzko (1976), 66 Ill. 2d 28, 360 N.E.2d 60.) The court reasoned that natural parents had a superior custodial right which should not be interfered with by a court in the absence of unusual circumstances.

In short, section 607(b) does not limit the court’s power to grant grandparental visitation where the parties have by agreement requested the court to grant such visitation. For a contrary view, see Hawkins v. Hawkins (1981), 102 Ill. App. 3d 1037, 430 N.E.2d 652 (Barry, J., specially concurring).

The trial court’s written “Judgment for Dissolution of Marriage,” filed September 9,1982, included the following findings:

“7. THAT one child was bom to the said marriage, namely John Waidemar Spomer, bom June 18, 1981, and that no child or children were adopted by the parties, and the Respondent is not now pregnant.
8. THAT it is in the best interests of said minor child that his care, custody, control and education be awarded to Respondent, subject to the right of reasonable visitation to the Petitioner, and to the grandparents of said minor child, in accordance with the terms of the written Marital Settlement Agreement hereinafter mentioned.”

Respondent readily agreed to the award of such visitation at the time of the entry of the decree of dissolution. The Act, as amended, recognizes that grandparents, as well as noncustodial parents, should continue to enjoy a close familial relationship with children even though the parents are unable to sustain their marriage. Here the father is a member of the military, subject to be stationed in places where he might be unable to exercise his visitation privileges, and, of course, the grandparents would not be entitled to exercise their son’s visitation privileges. If the court must find a “special circumstance” before grandparents may be awarded visitation rights, the son’s service in the armed forces would be such a circumstance. (Solomon v. Solomon (1943), 319 Ill. App. 618, 49 N.E.2d 807.) No suggestion was made that the exercise of visitation privileges by the father or grandparents had in any way been harmful to the child and no specific reason was given why such visitation was not in the child’s best interest.

We believe no showing has been made that would justify vacation of the provisions of the dissolution decree relating to visitation and child support. If in fact future events should prove such visitation not in the best interest of the child, the proper course would be modification of these dispositions at that time as authorized under section 502(f) of the Act (Ill. Rev. Stat. 1981, ch. 40, par. 502(f)).

The judgment of the circuit court of Williamson County is therefore affirmed.

Affirmed.

KASSERMAN, J., concurs.

PRESIDING JUSTICE WELCH,

dissenting:

The trial court’s written order of September 9, 1982, recited that it is in the best interests of the child to award the grandparents, Mr. W. C. Spomer and Justice Dorothy W. Spomer, substantial visitation privileges. The majority holds that no showing has been made which would justify vacation of the visitation provisions. I believe the majority’s decision overlooks the fact that no evidence was presented at the September 9, 1982, hearing from which the trial court could have found that the visitation provisions of the separation agreement were reasonable or in the best interest of the child. The trial court made no inquiry about facts or circumstances which would have made it in the child’s best interests to be separated from his natural mother at such a young age by such frequent grandparent visitation.

I would hold that the marital separation agreement provisions on visitation were not binding on the court and should not have been adopted absent facts and circumstances of record which supported the trial court’s conclusion as to the best interests of the child. (Ill. Rev. Stat. 1981, ch. 40, par. 502(b).) In addition, the marital separation agreement provisions as to grandparent visitation are improper absent facts and circumstances of record which establish that such visitation, beyond that granted to the natural father, is in the best interests of the child under section 607(b). (Ill. Rev. Stat. 1981, ch. 40, par. 607(b).) I would reverse those portions of the judgment of dissolution pertaining to child visitation and remand for further determination of visitation provisions based on evidence of the child’s best interests.


text:
    JAMES O. PEOPLES, Plaintiff-Appellee, v. THE CARBORUNDUM COMPANY et al., Defendants-Appellants.
    Fifth District
    No. 5 — 83—0437
    Opinion filed April 5, 1984.

      Burton C. Bernard and Ronald A. Roth, both of Bernard & Davidson, of Granite City, for appellant Carborundum Company.
    John W. Leskera, of Dunham, Boman & Leskera, of East St. Louis, for appellant Granite Sheet Metal Works, Inc.
    William W. Schooley, of Granite City, for appellee.
   PRESIDING JUSTICE WELCH

delivered the opinion of the court:

At issue in this case is whether a judgment debtor or debtors can, upon tender of the full amount of the judgment plus interest and costs to the creditor, compel the creditor to execute a release of the judgment. We hold that under section 12 — 183(b) of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 12 — 183(b)), a judgment debtor may do so.

This controversy is a result of our decision in Peoples v. Granite City Steel Co. (1982), 109 Ill. App. 3d 265, 440 N.E.2d 363. There, we upheld a jury’s verdict in favor of plaintiff James Peoples in an action brought under the Structural Work Act (Ill. Rev. Stat. 1983, ch. 48, par. 60 et seq.) against, inter alia, defendants Granite Steel Metal Works (Sheet Metal) and the Carborundum Company (Carborundum). Peoples is the judgment creditor in these proceedings, and Sheet Metal and Carborundum are the judgments debtors.

Following the issuance of our opinion, Carborundum’s counsel appeared at the office of Peoples’ counsel with five checks and a release of judgment form. The checks, two of which were from Sheet Metal’s insurer, two of which were from Carborundum’s insurer and one of which was from Carborundum’s law firm, represented the total amount of the judgment upheld by this court plus interest and certain costs. The release form stated that Peoples would release the judgment entered against Sheet Metal and Carborundum. Peoples’ counsel returned the checks unendorsed and the release unsigned.

Subsequently, Sheet Metal and Carborundum paid the amount represented by the checks to the office of the clerk of the circuit court of Madison County, to be held in escrow for Peoples, his counsel, his employer G. H. Sternberg and Company (Sternberg) and Sternberg’s insurer. With this payment, Sheet Metal and Carborundum filed a petition under section 12 — 183(b) of the Code of Civil Procedure. In that petition, supported by the affidavit of Carborundum’s counsel, Sheet Metal and Carborundum recounted the offer and return of the checks and release, and referred to their payment to the clerk of the court. They alleged that the plaintiff had wilfully refused to deliver the release, and they requested the court to enter an order satisfying the judgment in favor of Peoples and releasing all liens based on that judgment.

A brief and acrimonious hearing was held on the petition, at which counsel for various parties testified concerning negotiations and agreements between certain of those parties about -the method of satisfying Peoples’ judgment. After the hearing, the court entered an order denying the petition, reasoning that Peoples may pursue all, some, or one of the tortfeasors responsible for his injury for the full amount of his damages and need not accept tender of that amount from a tortfeasor not of his own choosing. Sheet Metal and Carborundum appeal from that order.

Section 12 — 183(b) of the Code of Civil Procedure reads as follows:

“If the judgment creditor, his or her assigns of record or other legal representative to whom tender has been made of all sums of money due him or her from the judgment debtor including interest, on any judgment entered by a court, wilfully fails or refuses, at the request of the judgment debtor or his or her legal representative to execute and deliver to the judgment debtor or his or her legal representative an instrument in writing releasing such judgment, the judgment debtor may petition the court in which such judgment is of record, making tender therewith to the court of all sums due in principal and interest on such judgment, for the use of the judgment creditor, his or her executors, administrators or assigns, whereupon the court shall enter an order satisfying the judgment and releasing all liens based on such judgment.”

No reported decision has construed this section or its predecessor (Ill. Rev. Stat. 1979, ch. 77, par. 68A(b)). Nevertheless, there is nothing in the wording of this provision to suggest that it should not apply here. Peoples argues, and the trial court agreed, that the invocation of section 12 — 183(b) would nullify the common law principle that a plaintiff is allowed to pursue all, some, or one of the joint tortfeasors responsible for his injury for the full amount of the damages. (Coney v. J.L.G. Industries, Inc. (1983), 97 Ill. 2d 104, 119-20, 454 N.E.2d 197, 204.) We cannot agree. The right of a plaintiff to seek recovery from among joint tortfeasors, at his election, does not confer upon him the right to wilfully refuse tender of full satisfaction of the judgment from one or more of those tortfeasors. Indeed, section 12 — 183(b) could scarcely be more explicit in negating that right of refusal, in stating that in the case of a wilful failure or refusal to release the judgment, the court shall enter an order doing so at the request of the debtor. There can be no doubt that Peoples acted wilfully in not releasing the judgment, and thus the trial court erred in denying the petition of Carborundum and Sheet Metal.

Peoples contends, in the alternative, that the release of judgment should be in favor of Carborundum only, and not in favor of Carborundum and Sheet Metal. This request finds no support in the record. All evidence indicates that the checks tendered to Peoples, first directly and then into court, were from the insurers of Carborundum and Sheet Metal, in roughly equal amounts. The release must accordingly specify both Carborundum and Sheet Metal as its recipients.

Peoples alludes to various agreements between some of the parties to allocate the burden of satisfying his judgment. Although these agreements may possibly form the basis of an equitable action, they in no way affect the statutory right of Carborundum and Sheet Metal to receive a release of the judgment from Peoples. The order of the circuit court of Madison County is reversed and this cause is remanded with instructions to grant the petition of Sheet Metal and Carborundum and distribute the funds paid into court in accordance with that action.

Reversed and remanded with directions.

HARRISON and KASSERMAN, JJ., concur.