author: JUSTICE CAMPBELL JUSTICE McGLOON,

text:
    FRANK DEL MURO III, Adm’r of the Estate of Frank Del Muro IV, Deceased, Plaintiff-Appellant, v. COMMONWEALTH EDISON COMPANY, Defendant-Appellee.
    First District (1st Division)
    No. 82—3009
    Opinion filed May 21, 1984.
    McGLOON, J., dissenting.
    Philip H. Corboy, Robert J. Glenn, and David A. Novoselsky, all of Cor-boy & Demetrio, P.C., of Chicago, for appellant.

      Stephen A. Milwid, Richard E. Mueller, and Hugh C. Griffin, all of Lord, Bissell & Brook, of Chicago, for appellee.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Plaintiff, Frank Del Muro III, administrator of the estate of Frank Del Muro IV, deceased, appeals from a judgment notwithstanding the verdict which vacated a jury award of punitive damages against defendant, Commonwealth Edison Company. On appeal, plaintiff raises the issue whether the trial court applied the correct legal standard in determining that there was insufficient evidence of wilful conduct by the defendant to support the jury award of punitive damages under the Public Utilities Act (Ill. Rev. Stat. 1981, ch. 1112/3, par. 77). Defendant raises the issue whether plaintiff’s consent to a remittitur and the trial court’s issuance of a satisfaction of the compensatory damages claim precludes plaintiff’s appeal of the punitive damages issue.

Plaintiff’s third amended complaint sought compensatory damages for a wrongful death negligence action and a survival negligence action. In addition, plaintiff sought punitive damages for a “wilful” violation of the Public Utilities Act. Ill. Rev. Stat. 1981, ch. 1112/3, par. 77.

Testimony at trial revealed that on June 22, 1977, seven-year-old Frank Del Muro IV was electrocuted when he climbed on top of a Commonwealth Edison transformer inside a substation adjacent to a public park, South Park, in Des Plaines, Illinois. The substation, a gravel-covered rectangular enclosure, measured approximately 60 by 120 feet. The enclosure was surrounded by a 6 foot 3 inch high cyclone fence. On top of the entire fence three strands of barbed wire were strung from DA-foot-long metal supports called “bayonets.” The bayonets were angled outward. Warning signs were posted around the substation. The only gate in the fence was securely locked.

Inside the enclosure there were two transformers of between nine to 12 feet in height. Also, there were circuit breaker and switching gear boxes. On the top of each transformer “live” bushings connected high voltage wires to the transformer. An eight-foot ladder was kept inside the substation, out of sight, to enable the substation operator to reach certain controls near the top of the transformers.

Decedent’s six-year-old cousin, Jerry Shepardson, testified that he and “Frankie” were playing in the Del Muro backyard when Frankie said that he was going to take Jerry to his “fort.” Frankie took his cousin to the substation enclosure. When they arrived Frankie climbed over the fence and jumped to the ground inside the enclosure. Jerry was afraid to jump from the top of the fence, so Frankie got a ladder which was leaning against a box next to the transformer and placed the ladder against the fence. Jerry then was able to climb up the fence and climb down the ladder on the other side. Jerry testified that at the spot where the boys climbed over the fence (the east side of the enclosure) two strands of the barbed wire were missing and the third strand was hanging below the top of the fence.

Once inside the enclosure, Jerry started throwing rocks. Frankie said that he was going to use the ladder to climb to the top of the transformer to watch a baseball game. A few seconds after Jerry saw him climb the ladder, Jerry heard a noise “like a fire cracker.” Without looking to see what happened, Jerry ran crying to the Del Muro home and told Frankie’s mother that Frankie was hurt. Shortly thereafter, paramedics from the Des Plaines Fire Department arrived, broke the lock on the substation and removed Frankie, who was conscious, from the top of the transformer. Frankie suffered burns over 60% of his body. Two months later he died from his injuries.

Jerry testified that he had seen the broken barbed wire in the same condition as it existed on the day of the occurrence 10 months earlier in July 1976. A friend and neighbor of the Del Muro family, Valeria Meitus, also testified that she had noticed that on the east portion of the fence two strands of barbed wire were missing and the third strand was hanging down along the fence. She testified that she first noticed this condition when she moved to the area in July 1976. A park district employee, Lonnie Warnecke, who cut grass and trimmed bushes within the park, testified that he had noticed the “sagging” condition of the barbed wire prior to the accident. He did not specify when he noticed it.

A police officer who arrived at the scene of the accident testified that the wire and the bayonets along the east side of the fence were rusty and deteriorated.

Plaintiff presented the testimony of a professor of electrical engineering, Dr. Ralph Armington, as an expert witness. Dr. Armington testified that the substation in question was the normal type of installation still used throughout the Chicago area and, as constructed, the substation was adequately protected under the Public Utilities Act. He testified, however, that in his opinion the broken condition of the barbed wire atop the fence and the presence of the ladder stored but not locked up within the substation resulted in the premises being inadequately maintained in violation of General Order 160 of the Illinois Commerce Commission. General Order 160 sets forth general safety regulations for public utility equipment. In reaching his opinion Dr. Armington admitted that he relied on Jerry Shepard’s testimony that the condition existed for 10 months and concluded that Edison employees simply did not observe this condition.

Both plaintiff and defendant presented testimony by numerous Commonwealth Edison employees. Warren Weiler, who was division superintendent of substations at the time of the accident, testified that safety was the “number one” concern of Commonwealth Edison and it was the duty of all employees to be responsible for the safety of the public. He testified that the substation was designed to prevent children from getting into it. Weiler visited the substation at South Park the day after the accident. He described the fence as being in a state of disrepair and in need of immediate attention. He testified that it was the duty of the substation operator to put the ladder under the switch gear box, out of sight, when he was finished using it.

George Harper was the crew leader of the maintenance personnel assigned to regularly inspect the substation in question. He, too, testified that safety was a primary concern of Commonwealth Edison. He described the various safety measures taken by Edison. Substation crew leaders and mechanics were required to attend weekly safety meetings at which various topics, including the maintenance of a substation’s fence, were discussed. Larger company meetings were held several times a year. Additionally, the company’s protective services department inspected each substation once every two to four months and prepared a security report for each substation. The safety department and safety committee distributed safety literature to Edison personnel at least monthly. All substation operators and maintenance crew were required to systematically inspect the entire enclosure whenever they visited a substation. Any employee who noticed an unsafe condition was authorized to fix it immediately if he had the necessary equipment and if not, the employee was to file immediately a maintenance order for a repair crew.

Edison records revealed that in the 16 months prior to the accident, Edison employees visited the substation on over thirty occasions. Harper testified that he last visited the substation before the accident on April 28, 1977. At that time he did not see a break in the barbed wire above the fence. Harper testified that the only repair to the fence of which he was aware was made two years before the accident in question. Harper discovered a child inside the enclosure who had gained access by climbing under the fence to retrieve a ball. Harper filled the hole and strung barbed wire along the bottom of the fence. Frequently Edison personnel would find balls and other items inside the substation, indicating that children were successfully being kept out of the enclosure.

Charles B. Clark, the substation operator for the South Park substation, testified that he periodically walked around the entire enclosure to check the equipment and the fencing. He made 15 visits to the substation in the year prior to the accident. He last inspected the site on June 6, 1977, 16 days before the accident. He never saw any broken wire or any other condition of disrepair on or around the fence.

Three members of the protective services section, Charles Clifford, Russell Domke and William Elke, testified for defendant. They testified that after their periodic inspections of a substation, members of their section were required to fill out a written report on the condition of the substation which specifically asked if the fencing was adequate and in good repair. All security inspection reports for the substation in question showed the fencing to be in good repair. Clifford testified that he last visited the substation before the accident on April 29, 1977. At that time the broken and sagging condition of the barbed wire had not existed. He also stated that he inspected approximately eight substations on any given day. Domke last inspected the site on February 15, 1977. He testified that the barbed wire and fence were not in the condition found on June 22, because if they had been it would have been reported. Elke testified that on the average the inspection of a substation would last only five minutes.

George Warren, an employee of Edison who did not work at the South Park substation but lived approximately 600 feet from the substation, testified that he could see most of the enclosure from his home. He also walked up to it on many occasions. He testified that he never saw the broken barbed wire at any time prior to the accident.

The jury awarded plaintiff $2.5 million in compensatory damages and $3.5 million in punitive damages. Defendant filed a post-trial motion seeking a judgment notwithstanding the verdict or a new trial on all issues. Defendant alleged inter alia that the evidence was insufficient to support either the compensatory or the punitive damages. Defendant also urged that the jury awards were excessive. The motions were briefed and argued by the parties. The trial court then issued a written opinion finding that the compensatory damages verdict was excessive. The court also found that the evidence was insufficient to establish any wilful or wanton conduct on the part of Commonwealth Edison to support the punitive damages verdict. The trial court ordered either a remittitur of the compensatory damages to $1.5 million or, upon plaintiff’s failure to consent to a remittitur, a new trial. The court then vacated the punitive damages award and entered judgment notwithstanding the verdict in favor of Commonwealth Edison on the punitive damages claim.

Plaintiff consented to the remittitur and filed this appeal on the judgment vacating the punitive damages award. Thereafter, defendant tendered a check in full payment of the final compensatory damage award plus interest. Plaintiff refused to accept the check or to execute a satisfaction of judgment unless defendant would stipulate that plaintiff was still entitled to appeal the punitive damages claim. Defendant refused and tendered the check to the court. The trial court, over plaintiff’s objection, accepted the tender, satisfied the compensatory damages judgment and ordered the check to be deposited in a bank account for the use of plaintiff and his attorneys.

Initially, defendant contends that plaintiff’s acceptance of the remittitur and the trial court’s order of satisfaction of the compensatory damages claim should preclude plaintiff’s right to bring this appeal. In support of this argument, defendant has cited authority from other jurisdictions: Kneas v. Hecht Co. (1970), 257 Md. 121, 262 A.2d 518; Spanel v. Berkman (7th Cir. 1948), 171 F.2d 513, which held that a party should not be allowed to accept part of a judgment favorable to him and then pursue an appeal from other unfavorable portions of the judgment. We are not persuaded that under the circumstances of this case we should adopt the rule suggested by defendant. Illinois courts have held that a litigant cannot attack a decree if, by reason of enjoying the benefits of the decree, the opposing party would be placed at a distinct disadvantage upon reversal. (Lemon v. Lemon (1958), 14 Ill. 2d 15, 150 N.E.2d 608; In re Marriage of Petramale (1981), 102 Ill. App. 3d 1049, 430 N.E.2d 569.) Defendant has not argued that he has been disadvantaged by plaintiff’s appeal and, accordingly, we determine that plaintiff is not precluded from pursuing this appeal.

The Public Utilities Act provides for the imposition of punitive damages when a public utility operates in an unlawful manner or omits to perform required acts. Section 73 of the Act states:

“In case any public utility shall do, cause to be done or permit to be done any act, matter or thing prohibited, forbidden or declared to be unlawful, or shall omit to do any act, matter or thing required to be done either by any provisions of this Act or any rule, regulation, order or decision of the Commission, issued under authority of this Act, the public utility shall be liable to the persons or corporations affected thereby for all loss, damages or injury caused thereby or resulting therefrom, and if the court shall find that the act or omission was wilful, the court may in addition to the actual damages, award damages for the sake of example and by the way of punishment. An action to recover for such loss, damage or injury may be brought in the circuit court by any person or corporation.” Ill. Rev. Stat. 1981, ch. 1112/3, par. 77.

Plaintiff contends that the trial court applied inappropriate legal principles in determining that the evidence did not support the punitive damages award. Plaintiff argues that the question of what constitutes “wilful” conduct is dependent on the particular facts of each case and should have been given to the jury to decide. Plaintiff asserts that the jury should have been allowed to determine the credibility of the witnesses concerning whether the broken condition of the wire existed for 10 months. Plaintiff argues that it is more egregious for defendant to have conducted numerous safety inspections and failed to notice the broken wire, or notice it and fail to repair it, than for defendant to fail to carry out its duty to inspect the substation. (Hazelwood v. Illinois Central Gulf R.R. (1983), 114 Ill. App. 3d 703, 450 N.E.2d 1199.) Although plaintiff argued to the contrary in his written brief, plaintiff conceded in oral argument that the same standard for determining the sufficiency of the evidence of wilful and wrongful conduct to support a claim for punitive damages applies in both common law actions and actions under the Public Utilities Act. Plaintiff contends, however, that this court should reinstate the punitive damages verdict in order to fulfill the public policy underlying the Act and to indicate to the utility that any failure to protect the public from the hazards of electricity will not be allowed.

Defendant contends that there is no evidence whatsoever that defendant was utterly indifferent to or consciously disregarded the safety of others. The only evidence that the condition of the fence existed for 10 months was the testimony of a six-year-old child and the testimony of a family friend. Although the park groundsman testified that he noticed the condition of the fence prior to the accident, there was no testimony as to when he noticed the defective condition. Further, there was no evidence that anyone brought the defective condition to the attention of defendant or that there was anything to indicate that children were climbing over the fence. Indeed, plaintiff’s own evidence established that defendant’s concern for safety was carried out by regular safety instruction of personnel, by frequent inspections of the substation and by the requirement of written security reports specifying that the fencing was in good repair. Defendant argues that the trial court correctly determined that there was insufficient evidence of wilful conduct to sustain the punitive damages award.

Both parties rely upon two companion cases decided by the Illinois Supreme Court under section 73 of the Public Utilities Act. In each case, the court upheld an award of punitive damages. In the first case, Churchill v. Norfolk & Western Ry. Co. (1978), 73 Ill. 2d 127, 383 N.E.2d 929, an automobile passenger was killed when defendant’s train struck the car in which he was riding. The driver of the car testified that he was unable to see the approaching train because his view was blocked by boxcars stored near the crossing. Testimony at trial established that despite numerous complaints from the mayor and citizens of the local community and a complaint by certified letter from the local school district, defendant continued storing boxcars on the side tracks near the crossing which obstructed a driver’s view up and down the tracks. This practice violated an Illinois Commerce Commission rule requiring the railroad to keep its crossings clear of visual obstructions. The court recognized that based upon the record the punitive damages award was warranted to punish the railroad company for its utter disregard of the pleas of local officials and citizens to remove the dangerous obstructions.

In the second case, National Bank v. Norfolk & Western Ry. Co. (1978), 73 Ill. 2d 160, 383 N.E.2d 919, decedent’s car was hit by a train at a crossing, the view of which was obstructed by trees, shrubs and a house on the railroad’s right-of-way. There was evidence that prior accidents had occurred at the same location, yet the railroad had not taken steps to keep its right-of-way clear, and the railroad did not contest the finding that its conduct was wilful. The court noted that section 73 was intended to punish an offender and discourage similar offenses by allowing punitive damages to be awarded whenever an injury results from a defendant’s wrongful and wilful statutory violation. The award of punitive damages in that case was also held to be proper.

Plaintiff argues that based upon these cases it was error to withdraw the question of wilful conduct from the jury once plaintiff had made a prima facie showing that there had been a conscious disregard of the safety of others in violation of a rule promulgated under the Act. (See Reiss v. Chicago, Milwaukee, St. Paul & Pacific R.R. Co. (1979), 77 Ill. App. 3d 124, 395 N.E.2d 981.) Defendant asserts that in the Churchill and National Bank cases wilfulness was shown by evidence of failure to correct a hazardous situation despite prior complaints or prior accidents unlike the present case where there is no such evidence. Defendant urges this court to follow Mathis v. Burlington Northern, Inc. (1978), 67 Ill. App. 3d 1009, 385 N.E.2d 780. In that case the court upheld a directed verdict against the plaintiff on his count seeking punitive damages for an alleged wilful violation of the Public Utilities Act because there was insufficient evidence of wilful misconduct.

A trial court should award a directed verdict and enter judgment n.o.v. “only in those cases in which all 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. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504, 513-14.) We have reviewed the record and find that the trial court properly concluded that there was no evidence that the defendant’s failure to maintain the fence was wilful.

Extensive testimony established that the defendant had numerous programs and inspections to insure the safety of the public around the substation in question. There was evidence presented that a prior break in the fence was repaired immediately. Although two witnesses for plaintiff testified that the broken condition had existed for some time, several witnesses for defendant testified that if the broken condition had existed it would have been reflected in their reports. This conflicting testimony, however, does not constitute evidence of wilfulness. Although the court in Hazelwood v. Illinois Central Gulf R.R. (1983), 114 Ill. App. 3d 703, 450 N.E.2d 1199, held that a long-standing violation, which persisted despite numerous inspections of the site, could constitute wilful misconduct, there was evidence in that case that the railroad knew of the violation and that the violation had existed for 10 years. Plaintiff has cited as additional authority the recent case of Froud v. Celotex Corp. (1983), 98 Ill. 2d 324, 456 N.E.2d 131, to support its position that there is a distinction between punitive damages arising in common law actions and those arising in actions under section 73. We find this case inapposite to the issue at bar. Neither the cases cited by plaintiff nor the Public Utilities Act suggests that a lesser standard for the sufficiency of evidence to sustain a punitive damages award for wilful misconduct applies in public utilities cases than in common law cases.

Here, as in Mathis, the facts do not show an intent to inflict injury or a callous disregard for whether injury will occur. The evidence, when viewed in a light most favorable to plaintiff, is insufficient as a matter of law to support a verdict for punitive damages based upon a wilful act or omission in violation of the Public Utilities Act. In light of our determination of this issue, we need not consider defendant’s alternative argument that punitive damages are inappropriate here because of plaintiff’s failure to show that defendant’s corporate officers authorized the alleged misconduct of its employees.

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

Judgment affirmed.

BUCKLEY, P.J., concurs.

JUSTICE McGLOON,

dissenting:

I respectfully dissent from the majority’s holding that there was no evidence that defendant’s failure to maintain the fence was wilful.

Whether an act or omission constitutes wilful conduct is within the peculiar province of the jury to consider. (Sprague v. Commonwealth Edison Co. (1978), 59 Ill. App. 3d 342, 375 N.E.2d 493.) In order to establish wilful conduct it is not necessary to prove that defendant had actual knowledge of an impending danger and failed to take reasonable precautions to prevent it. The Illinois Supreme Court has advised this particular defendant that utter indifference or conscious disregard for the safety of others can be established where the evidence discloses that defendant failed to discover a dangerous condition through recklessness or carelessness when it could have been discovered by ordinary care. Klatt v. Commonwealth Edison Co. (1965), 33 Ill. 2d 481, 211 N.E.2d 720.

The principles governing wilful conduct have been held to take on particular significance when the distribution of electrical energy is involved. (Spence v. Commonwealth Edison Co. (1975), 34 Ill. App. 3d 1059, 340 N.E.2d 550.) Power companies are required to exercise extraordinary care due to the inherently dangerous nature of their business. (Spence; McGill v. Illinois Power Co. (1959), 18 Ill. 2d 242, 163 N.E.2d 454.) The menace of electricity has been characterized as.a silent, deadly, instantaneous force comparable to the operation of a firing range. (Spence, citing Merlo v. Public Service Co. (1942), 381 Ill. 300, 45 N.E.2d 665, and Mullen v. Chicago Transit Authority (1961), 33 Ill. App. 2d 103, 178 N.E.2d 670.) Because the dangers connected with the distribution of electricity are not obvious to the general public, a power company’s own employees are best qualified to discover the potential hazards of electricity. McGill v. Illinois Power Co. (1959), 18 Ill. 2d 242, 163 N.E.2d 454.

It is true, as stated in the majority opinion, that there is conflicting testimony regarding whether the barbed wire was deteriorated and in a state of disrepair prior to the accident. Indeed, this is not surprising inasmuch as the only question to be determined as a prerequisite to the imposition of punitive damages is whether defendant wilfully violated a rule promulgated under the Public Utilities Act. However, I disagree with the majority’s conclusion that conflicting evidence cannot support a finding of wilfulness.

Defendant’s employees testified that regular inspections were conducted to ensure that the high voltage transformers located within the electrical substations were properly guarded. Defendant’s safety log reflects that substation C — 17 was inspected on 43 occasions during the 16 months preceding the accident. Defendant’s records further indicate that no new barbed wire has been placed at this location since 1948.

Mr. Harper, a 32-year employee of defendant, testified that because the safety of the general public was defendant’s primary concern, workers had been instructed that the public was to be protected from contact with the equipment. Harper further testified that any disrepair of the fencing which would allow children to gain access to the substation would be an unsafe condition requiring immediate attention.

Another lifelong employee of defendant, Mr. Weiler, acknowledged that barbed wire was intended to prevent children from climbing over the fence. In order to accomplish this goal, defendant passed regulations which required all three strands of barbed wire to be kept intact at all times.

Through the testimony of its employees, defendant acknowledged that it had a duty to maintain the barbed wire along the fence and to keep the ladder stored within the enclosure. Defendant’s defense, therefore, was simply that the barbed wire did not exist in a state of disrepair, as plaintiff’s witnesses claimed. Defendant stressed that had it been in such a state prior to the accident, defendant would have been aware of the condition and remedied it.

However, the jury refused to believe the testimony of defendant’s employees. Instead, they accepted as credible the testimony of plaintiff’s witnesses. In addition to the testimony of a “six-year-old child” (who was 11 years old at the time of trial) and a “family friend,” plaintiff introduced the testimony of Mr. Warnecke and Sergeant Randolph. Mr. Warnecke noticed the sagging condition of the barbed wire prior to the accident. Sergeant Randolph described the fence along the east side of the station as having two strands of wire completely missing and one strand sagging. The bayonets designed to reinforce the barbed wire were rusty and deteriorated. One was completely obstructed by shrubbery.

The jury also heard extensive testimony from plaintiff’s witness, Dr. Armington. He testified that in his opinion defendant violated numerous sections of General Order 160 of the Illinois Commerce Commission, which sets forth minimum standards for the proper installation and maintenance of electrical equipment. These sections were designed to protect the general public and especially children from gaining access to high-voltage equipment.

After hearing the evidence, the trial court determined that there was sufficient evidence to instruct the jury that punitive damages could be awarded if defendant was guilty of wilful and wanton conduct. They were also instructed as to the definition of wilful and wanton conduct. Resolving the question of credibility of the witnesses against defendant, the jury returned a substantial punitive award against defendant indicative of their determination that defendant’s conduct constituted a wilful violation under the Act.

In my judgment, there is substantial evidence in the record to support the jury’s finding that defendant’s wilful violation of the Act caused the electrocution of a seven-year-old boy. By substituting its own judgment for that of the jury regarding whether defendant’s conduct was wilful, the trial court invaded the constitutional prerogative of the jury to weigh the credibility of the witnesses. (Buer v. Hamilton (1964), 48 Ill. App. 2d 171, 199 N.E.2d 256.) Also, it was error for the trial judge to strike the award after the jury returned their verdict.

Defendant’s concern for safety which was demonstrated by the numerous inspections it conducted cannot insulate defendant from punitive liability where its “concern” did not extend to rectifying the condition which gave rise to plaintiff’s decedent’s injuries.

This court recently considered an analogous case wherein plaintiff established that the defendant railroad had allowed the crossing to fall into a state of disrepair causing plaintiff’s injuries in Hazelwood v. Illinois Central Gulf R.R. (1983), 114 Ill. App. 3d 703, 450 N.E.2d 1199. As did defendant in the instant case, the railroad denied having actual knowledge of its crossing being in a state of disrepair. However, the jury believed plaintiff’s witnesses who testified that the crossing had been in a state of disrepair prior to the accident. The court noted that ‘ ‘the fact that the condition at the crossing existed is itself sufficient evidence that the railroad failed to conduct proper maintenánce to correct the violation.” (Hazelwood v. Illinois Central Gulf R.R. (1983), 114 Ill. App. 3d 703, 711, 450 N.E.2d 1199, 1206.) This reasoning is equally applicable to the case at bar. Aside from the testimony of several witnesses, possibly the best evidence of defendant’s failure to adequately maintain the fence to prevent the public from coming into contact with 34,500 volts of raw electricity is the fact that two young children successfully gained access to the substation.

The Hazelwood court also commented upon defendant’s reliance on the railroad’s inspections:

“[T]here is evidence in the record that the railroad inspected the crossing frequently. It is far more egregious for the railroad to continue to inspect the crossing and then fail to repair it than for the railroad to simply fail to inspect. Consequently, it is clear from the record before us that, as a matter of law, the railroad’s actions justified the imposition of punitive damages.” 114 Ill. App. 3d 703, 711, 450 N.E.2d 1199, 1206.

It is equally clear in the instant case that defendant’s actions justify the imposition of punitive damages.

The trial court, and now this court, was apparently influenced by the fact that since the substation’s construction in 1948, there was only one prior incident where a young child gained access to the substation through a defect in the fencing. Defendant argues that having introduced a myriad of evidence establishing its overall concern for safety, it cannot be found to have exhibited a conscious disregard for safety which would warrant punitive liability. However, this argument distorts the intention of the legislature in passing the Public Utilities Act. The public policy underlying section 73 of the Act is clear:

“Unquestionably, the Public Utilities Act intends to punish an offender and discourage similar offenses by allowing punitive damages to be awarded whenever an injury results from a defendant’s wrongful and wilful statutory violation. It would pervert the Act’s intention if reprehensible conduct, so severe in consequence that resultant injury, culminating in death, was to be insulated from punitive liability under the act designed to vigilantly promote safety by public utilities.” Froud v. Celotex Corp. (1983), 98 Ill. 2d 324, 332, 456 N.E.2d 131, quoting National Bank v. Norfolk & Western Ry. Co. (1978), 73 Ill. 2d 160, 174, 383 N.E.2d 919, 924.

Despite defendant’s claim that it was concerned about safety, the jury having been properly instructed, concluded that defendant acted in utter disregard for the public’s safety. There was sufficient evidence that defendant was aware of the defect through its frequent inspections and in violation of General Order 160 of the Illinois Commerce Commission failed to repair it. There was also evidence that defendant violated General Order 160 by failing to store the ladder which plaintiff’s decedent used to climb the transformer. Defendant’s actions show an indifference to public safety and a punitive damage award will reassure the public that an indifference to its safety will not be tolerated in the future. (Churchill v. Norfolk & Western Ry. Co. (1978), 73 Ill. 2d 127, 383 N.E.2d 929.) The trial court’s refusal to permit the imposition of punitive damages “for the sake of example and by way of punishment” undermines the legislative intent contained in the clear language of the Public Utilities Act. Ill. Rev. Stat. 1981, ch. 1112/3, par. 77.

As stated above, my review of the record indicates that defendant’s actions justify the imposition of punitive damages in the instant case. Therefore, I must consider whether the jury’s award of $3.5 million is excessive. In Hazelwood, the court outlined three factors which should be considered in determining whether an award is excessive. They are: (1) the egregiousness of the act; (2) the financial status of the defendant; and (3) the potential liability of the defendant in situations where defendant faces multiple liability for the same or similar wrongs. Hazelwood v. Illinois Central Gulf R.R. (1983), 114 Ill. App. 3d 703, 450 N.E.2d 1199.

Having applied these factors, I find that the award is excessive. I would reduce the award to $1 million. This amount fairly reflects the seriousness of the injury and the magnitude of the wrong without threatening the financial stability of defendant. The award represents .0294% of defendant’s net worth, which is $3,396,934,000. (See Hazelwood, wherein the court determined that an award representing .0237% of defendant’s net worth was proper.) Finally, the reduced award of $1 million is substantial enough to discourage similar offenses in the future, thereby fulfilling the public policy underlying section 73 of the Public Utilities Act. Hazelwood v. Illinois Central Gulf R.R. (1983), 114 Ill. App. 3d 703, 712-15, 450 N.E.2d 1199, 1207-08.


source: Caselaw Access Project

author: JUSTICE SULLIVAN

license: Public Domain

text:
    MARK F. CARLYLE, Plaintiff and Counterdefendant-Appellant, v. ADELINE JASKIEWICZ, Defendant and Counterplaintiff-Appellee.
    First District (5th Division)
    No. 83—605
    Opinion filed May 18, 1984.

      Donald S. Rothschild, of Oak Park, for appellant.
    Sidney Z. Karasik, of Chicago, for appellee.
   JUSTICE SULLIVAN

delivered the opinion of the court:

This is an action for an accounting of amounts allegedly due as between cotenants under a land trust upon partition sale of the property. On appeal, plaintiff contends that the trial court erred in (a) imposing an equitable lien against his share of the proceeds of the sale for expenses incurred prior to the date on which he acquired that interest; and (b) excluding evidence offered to support alternative theories with regard to the proper accounting period.

The parties herein are the son and daughter of Catherine Ciolek, and the property which is the subject matter of this controversy, a two-flat apartment building at 1936 Warner Avenue in Chicago, was originally acquired by plaintiff and Mrs. Ciolek in 1952. Title was vested at all times pertinent hereto in La Salle National Bank, as trustee under trust No. 14424 (the land trust). Plaintiff and Mrs. Ciolek occupied the second-floor apartment until 1958, when he moved out and transferred his interest in the land trust to her. Mrs. Ciolek continued to reside in the second-floor apartment until late 1978 or early 1979; defendant occupied the first-floor apartment from 1967 until the property was sold in 1981.

Mrs. Ciolek remained the sole beneficial owner of the land trust until April 1968, when she conveyed a 50% interest therein to defendant. Thereafter, in September 1970, Mrs. Ciolek executed a document which transferred to defendant the remaining 50% beneficial interest in the land trust, subject to a life estate in herself. However, Mrs. Ciolek subsequently asserted that she had no knowledge of the true nature of that document, maintaining that it was her understanding that it merely provided a tax benefit to defendant, and that it was never her intention to transfer the remaining 50% beneficial interest to defendant. In 1973, Mrs. Ciolek filed an action seeking to set aside the 1970 assignment on the ground that defendant breached her duties as a fiduciary, and the trial court therein found that a fiduciary relationship existed; that Mrs. Ciolek, who was then 78 years old and had substantial difficulty with the English language, did not understand the nature of the transaction; and that defendant had not rebutted the presumption that the transaction was fraudulent, since she failed to prove that she did not breach her fiduciary duty to make free and frank disclosure of all relevant information concerning the nature of a transaction in which she profited. Mrs. Ciolek was restored to ownership of a 50% beneficial interest in the land trust, and that decree was affirmed by this court in Ciolek v. Jaskiewicz (1976), 38 Ill. App. 3d 822, 349 N.E.2d 914.

It is now undisputed that from late 1972, when she first learned of the purported transfer of her 50% interest, until she vacated her apartment in late 1978 or early 1979, Mrs. Ciolek refused to pay any portion of the mortgage, taxes, or maintenance and repair expenses on the subject property; as a result, all of those expenses were paid by defendant. In January 1977, Mrs. Ciolek assigned her 50% beneficial interest to plaintiff, and it appears that he, too, failed to make any contribution toward the mortgage, taxes, or maintenance and repair expenses until ordered to do so by the court. Plaintiff initiated the instant action in 1978, seeking partition of the property and an accounting, and defendant counterclaimed against him and Mrs. Ciolek, seeking contribution for their share of the expenses paid by her. Thereafter, plaintiff amended his complaint, adding Mrs. Ciolek as a plaintiff in the action for an accounting. It appears, however, that Mrs. Ciolek died sometime in 1980, and neither party sought to substitute her personal representative as either plaintiff or counterdefendant.

On September 21, 1981, the property was sold pursuant to the request for partition, and no questions are raised concerning the propriety of granting partition or the manner in which the property was sold. The proceeds were placed in escrow pending a final resolution of the parties’ actions for an accounting, and the trial court established an accounting period of January 1, 1972, to the date of sale. That period was originally set by order of the court on March 2, 1981, but the order recites no reasons for the period chosen, and apparently no transcript was made of any proceedings before the court at that time. Subsequently, in an October 28, 1982, order entered nunc pro tunc as of March 2, 1981, the trial court stated:

“The Carlyles contend that they have credits coming dating back to 1967 claiming that Mrs. Ciolek paid the mortgage and that Adeline Jaskiewicz paid nothing and it is the contention of the Jaskiewicz’s that no credit should be considered prior to 1972.
The parties by and through their attorneys agreed that the threshold question to be decided was whether or not to start with 1967 or 1972 in applying credits.
It was agreed that this Court should read:
a) the opinion handed down by the Appellate Court in Ciolek v. Jaskiewicz ***;
b) the excerpts from the record filed in said case;
c) the transcript of Catherine D. Ciolek’s deposition taken on the 23rd day of August 1973, in case 73 Ch 935 and;
d) read the brief filed by the defendant appellant in [Ciolek v. Jaskiewicz],
The Court has reviewed all of the aforementioned matters carefully and the Court comes to the following conclusion:
That the last conveyance made giving one-hundred per cent (100%) of the property to Jaskiewicz was set aside by order of court, thereby giving Catherine D. Ciolek fifty per cent (50%) beneficial interest and Adeline B. Jaskiewicz fifty per cent (50%) interest; and that from the testimony elicited from Catherine D. Ciolek in her deposition and from reading the excerpts from the record filed in the Appellate Court; the Court further finds Adeline B. Jaskiewicz did in fact pay her share toward the payment of the mortgage on the property in question and that this court is duty bound to rule that credits prior to 1972 will not be considered.”

After hearing evidence concerning the parties’ contributions toward the upkeep, repair and maintenance of the building from January 1, 1972, through September 1981, including real estate taxes, payment of the mortgage, insurance, water, gas and electric bills for the common elements, and land trustee fees, the trial court ordered that defendant’s share of the proceeds be increased by a credit of $15,012.24, and that plaintiffs share be reduced by that amount. No questions are raised concerning the factual accuracy of that finding. The trial court further ruled that “[a]ny payments made by *** Catherine Ciolek, from 1952 through December 1971, are outside the accounting period * * * and are irrelevant and immaterial to any issue in this cause”; and that “[mjortgage payments in 1972 made by check signed by Ciolek were based on cash contributions made by [defendant].” This appeal followed.

Opinion

Plaintiff first contends that while it is true defendant expended $31,937.86 on the upkeep, repair and maintenance of the property, she was entitled to no contribution from him for any expenditures made prior to 1977, when their mother assigned her 50% beneficial interest to him. He acknowledges that joint tenants are equally liable for the cost of necessary repairs, as well as the payment of any mortgage and real estate taxes (Gilmore v. Gilmore (1975), 28 Ill. App. 3d 36, 328 N.E.2d 562), but asserts that there is no theory upon which he may be found jointly liable for expenditures made when he had no interest in the property. He cites no cases supporting this position, but reasons that, since one who has no joint interest may not seek an accounting (Patterson v. Johnson (1885), 113 Ill. 559), an obvious corollary is that one who has no interest may not be held to account.

The only rationale set forth for the trial court’s determination that defendant was entitled to credits for expenditures made prior to 1977, was that plaintiff was an heir of Mrs. Ciolek and therefore “stood in line to gain” from those payments. Plaintiff asserts, and defendant conceded in oral argument, that this theory does not support the court's ruling, since both plaintiff and defendant were heirs of Mrs. Ciolek. It is true that an heir of a deceased cotenant stands in the same position as the deceased with regard to equitable liens for contribution (see, e.g., Burkholder v. Burkholder (1956), 10 Ill. App. 2d 565, 135 N.E.2d 504; Paidle v. Hestad (1976), 169 Ind. App. 370, 348 N.E.2d 678); however, cases so holding are irrelevant under the facts of this case, since the property did not pass to plaintiff by inheritance — Mrs. Ciolek assigned her interest to him. Of course, it can be said that plaintiff, as assignee, benefited by defendant’s expenditures in preserving and maintaining the property; however, the material question here, and one apparently not raised by either party before the trial court, is whether plaintiff, as assignee of a tenant in common, must contribute toward expenses incurred during the assignor’s period of tenancy. We shall consider this question, despite the parties’ failure to address it, since we are not bound by the trial court’s rationale on appeal; our concern is whether its ruling was proper, and we may affirm a correct decision for reasons other than those relied upon by the trial court and regardless of its reasoning. U-Haul Co. v. Town of Cicero (1980), 87 Ill. App. 3d 915, 410 N.E.2d 286.

It has frequently been stated that an assignee is placed “in the shoes of” his assignor; that is, that he acquires the same rights as his assignor (Buck v. Illinois National Bank & Trust Co. (1967), 79 Ill. App. 2d 101, 223 N.E.2d 167), but can have no greater rights than the assignor (Town & Country Bank v. James M. Canfield Contracting Co. (1977), 55 Ill. App. 3d 91, 370 N.E.2d 630). Similarly, with regard to cotenants, courts have reasoned that “[t]he grantee or successor of *** a co-tenant simply steps into the shoes of his grantor, subject to all the rights of the other co-tenants and their successors as to partition.” (Shoup v. Cummins (1929), 334 Ill. 539, 545, 166 N.E. 118, 121.) However, those cases were concerned either with the rights of a nonassigning cotenant vis-a-vis the assignee of a portion of another cotenant’s interest where that cotenant purported to assign a specific part of the property when he held only an undivided interest in the whole (e.g., Nicklaus v. Daubs (1944), 385 Ill. 407, 52 N.E.2d 786), or the assignee’s right of contribution as against his cotenants (e.g., Fischer v. Eslaman (1873), 68 Ill. 78). It appears that no Illinois court has had occasion to address the question of a cotenant’s right to contribution as against the assignee of an interest for unreimbursed expenditures incurred prior to the assignment. For this reason, we have consulted the rulings of courts in other jurisdictions for guidance on the issue.

It is the almost universal rule in jurisdictions that have considered the question that only a bona fide purchaser without notice of existing equities between or among cotenants takes an interest free of those preexisting equitable claims upon partition of the jointly held property. (See Bowman v. Pettit (1900), 68 Ark. 126, 56 S.W. 780; Palpar, Inc. v. Thayer (1953), 115 Cal. App. 2d 333, 252 P.2d 51; Sawyer v. Powell (1973), 230 Ga. 309, 196 S.E.2d 882; Norwood v. Parker (1929), 208 Iowa 62, 224 N.W. 831; Dietsch v. Long (1942), 72 Ohio App. 349, 43 N.E.2d 906; Kirby Lumber Co. v. Temple Lumber Co. (1935), 125 Tex. 284, 83 S.W.2d 638.) Some courts have predicated their decisions on the necessity of protecting innocent third parties. For example, in Dietsch v. Long (1942), 72 Ohio App. 349, 371, 43 N.E.2d 906, 916-17, the court noted:

“As applied to the equitable claims of the defendants [who sought contribution] this seems to be a harsh rule, but it must be remembered that such equitable claims do not constitute liens on the premises but only rights to have liens decreed on a cotenant’s interest in a partition proceeding for the protection of their respective claims against such cotenant; that each of the defendants, at any time before plaintiff acquired his interest in the premises as a bona fide purchaser for value without notice, could have instituted an action in partition and had the interest which the plaintiff afterwards acquired in the real estate subjected to their various equitable claims; and that it wns their failure to do so that make it possible for the plaintiff to acquire such interest free from such claims, bringing the case within the general rule that ‘wherever one of two innocent persons must suffer by the acts of a third, he who has enabled such third person to occasion the loss must sustain it.’ [Citation.]”

Other courts have reasoned that a rule which allowed recovery from a bona fide purchaser without notice of the equities would seriously impari the value of an interest held in cotenancy. For example, in Palpar, Inc. v. Thayer (1953), 115 Cal. App. 2d 333, 337, 262 P.2d 51, 53, the court stated:

“ ‘Such liens would be indefinite in amount, and undisclosed by public records, upon which third parties, in dealing with the owners of property, ordinarily have a right to rely. They would greatly injure tenants in common by impairing the market value of their shares and interest, because of the apprehension, on the part of those contemplating purchasing such interest or otherwise dealing with them, that claims for rents might be established as superior liens.’ ”

We find the reasoning of these cases persuasive, noting that they are in harmony with the long-standing policy of Illinois cases in affording protection to innocent third persons (see, e.g., Smith v. Herdlicka (1926), 323 Ill. 585, 154 N.E. 414), as well as the accepted principle that a bona fide purchaser takes free and clear of any interest in property except those of which he has notice (Kovacevic v. City of Chicago (1977), 47 Ill. App. 3d 674, 365 N.E.2d 104). Therefore, we hold that only a bona fide purchaser without notice of existing equities takes his interest free of any equitable claims for contribution which arose prior to the assignment.

Of course, the question whether plaintiff was a bona fide purchaser without notice of any outstanding equities between his assignor and the cotenant is one of fact. Since the issue was not raised before the trial court, we would ordinarily remand the cause for the purpose of an evidentiary hearing on that point. However, in the instant case, plaintiff in his brief on appeal stated that Mrs. Ciolek gave him her 50% interest in the property. It further appears from the rather limited transcript of proceedings before the trial court in the record on appeal that plaintiff had full knowledge of the transactions between defendant and Mrs. Ciolek, including the fact that Mrs. Ciolek paid none of the reasonable expenses on the property from late 1972 until she assigned the interest to him. We therefore see no purpose to be served by further evidentiary hearings. Accordingly, we find that plaintiff was not a bona fide purchaser without notice of the existing equities between defendant and Mrs. Ciolek, and under those circumstances, the trial court properly ruled that contributions owed by his assignor were chargeable against his share of the proceeds from the partition sale.

Plaintiff further asserts, however, that defendant’s only recourse in seeking reimbursement for the expenditures made prior to 1977 was an action against Mrs. Ciolek’s estate, positing that, since an interest in a land trust is considered personal property, no equitable lien could have attached to that interest. We believe that plaintiff misapprehends both the law regarding interests in land trusts and the nature of equitable liens.

In support of his position, plaintiff cites Chicago Federal Savings & Loan Association v. Cacciatore (1961), 33 Ill. App. 2d 131, 178 N.E.2d 888, and Chicago Title & Trust Co. v. Mercantile Trust & Savings Bank (1939), 300 Ill. App. 329, 20 N.E.2d 992. Those cases concerned whether the beneficial interest in a land trust could be considered personal property for purposes of statutes granting tax liens against interests in real property (Chicago Federal Savings & Loan Association v. Cacciatore) or providing that a judgment shall be a lien on the real estate of the person against whom it was obtained (Chicago Title & Trust Co. v. Mercantile Trust & Savings Bank). The sole issue therein was the nature of the interest held, and neither case held — as plaintiff apparently assumes — that beneficial interests are “lien-proof,” and we have affirmed imposition of a lien against the beneficial interest in a land trust under appropriate circumstances. Sterlinq Savings & Loan Association v. Schultz (1966), 71 Ill. App. 2d 94, 218 N.E.2d 53.

Furthermore, it is our view that the term “equitable lien” is somewhat misleading, and that cases involving legal or statutory liens are inapplicable to situations in which a court imposes an equitable lien. There are two situations under which such liens arise, and their origin and nature was thoroughly discussed in Oppenheimer v. Szu lerecki (1921), 297 Ill. 81, 87-88, 130 N.E. 325, 327. There, the court first discussed equitable liens which arise when parties express in writing their intention to make some particular property, real or personal, or some fund, the security for a debt, or where there has been a promise to convey or assign the property as security. The court went on to note:

“This rule is not, however, limited to express contracts, for ‘in addition to the general doctrine that equitable liens are created by executory contracts which in express terms stipulate that property shall be held, assigned or transferred as security for the promisor’s debt or other obligation, there are some further instances where equity raises similar liens without agreement therefor between the parties, based either upon general considerations of justice *** or upon the particular equitable principle that he who seeks the aid of equity in enforcing some claim must himself do equity.’ [Citation.] Illustrations of equitable liens so declared are cases where two or more persons own real estate in common and one of them has made permanent improvements on the property which have added to its value. Upon partition of the estate a court of equity will allot to the co-tenant making the improvement the portion improved without taking account of its value, but if such division cannot be made will create a lien upon the proceeds of the other shares for their proportionate amounts of the increased value caused by the improvement. [Citations.]” (297 Ill. 81, 87-88.)

Thus, in a suit for partition, a court of equity takes jurisdiction to do complete justice between the parties (Shippert v. Shippert (1939), 371 Ill. 267, 20 N.E.2d 597), and one of the remedies available to it, should the equities so require, is imposition of an equitable lien upon the proceeds of the partition sale in favor of a party seeking contribution. The equitable lien, then, does not arise when the funds are expended, and does not constitute a lien at law on a cotenant’s interest; it is a remedy which can be imposed by a court, sitting in equity, against the cotenant’s interest which will be satisfied out of the proceeds of sale. In effect, the lien is not upon the interest, but upon the proceeds. For this reason, we believe that it is immaterial, for purposes of an equitable lien upon partition, how the property was owned, and that cases considering the imposition of legal or statutory liens on beneficial interests under a land trust are irrelevant to the facts of this case.

Defendant next contends that the trial court erred in excluding evidence (a) of his interest in the property from 1952 to 1958, and his lack of interest therein from 1972 to 1977; (b) of expenditures made by him and by Mrs. Ciolek during those periods; and (c) of defendant’s “unclean hands.”

With regard to exclusion of evidence concerning ownership of the property, we note that the court’s sole basis in so ruling was that it had taken judicial notice of the facts contained in Ciolek v. Jaskiewicz (1976), 38 Ill. App. 3d 822, 349 N.E.2d 914, which set forth the history of ownership from 1952 to 1976. Plaintiff does not assert that those facts are inaccurate, and it does not appear that there has ever been any dispute over who held the interests in the land trust at all relevant times. Moreover, the record is clear that plaintiff acquiesced to this manner of placing the facts before the court; therefore, he cannot now maintain that the court’s ruling was erroneous. In addition, even if the evidence should have been admitted, the failure to do so was harmless, since the facts establishing ownership were otherwise before the court. See Society of Mount Carmel v. Fox (1980), 90 Ill. App. 3d 537, 413 N.E.2d 480.

Turning to plaintiff’s allegations concerning expenditures made by him and by Mrs. Ciolek, we note that the trial court specifically found in its final order that this evidence was irrelevant to the issues before it. Of course, in determining relevancy, the court must consider the evidence in the light of the factual issues raised by the pleadings (Svenson v. Miller Builders, Inc. (1979), 74 Ill. App. 3d 75, 392 N.E.2d 628), and it is not error to exclude testimony which does not bear on the specific issues under consideration (Eleopoulos v. Dzakovich (1981), 94 Ill. App. 3d 595, 418 N.E.2d 980). The determination of what is relevant is largely within the discretion of the trial court (Ferdinand v. Yellow Cab Co. (1976), 42 Ill. App. 3d 279, 355 N.E.2d 547), and reversal of its decision is not warranted absent an abuse of that discretion (Bullard v. Barnes (1983), 112 Ill. App. 3d 384, 445. N.E.2d 485).

Plaintiff first asserts that the trial court should have admitted evidence regarding his expenses from 1952 to 1958, when he was a cotenant with Mrs. Ciolek. Unfortunately, plaintiff makes no attempt to explain the relevancy of this evidence; presumably, it is his position that he was entitled to credits for those expenses in establishing the accounts between the parties, but he argues no theory and cites no cases which would support his claim for contribution. If his theory is that defendant is the assignee of Mrs. Ciolek’s 50% beneficial interest and, as such, is liable as an assignee of a cotenant for contributions, we note that after the expenses in question were incurred, the cotenancy between plaintiff and Mrs. Ciolek ceased to exist. It does not appear that plaintiff sought any accounting prior to conveying his interest to Mrs. Ciolek. Thus, when a 50% interest was assigned to defendant in 1968, Mrs. Ciolek was the sole beneficial owner of the land trust; it cannot be said, then, that defendant was the assignee of Mrs. Ciolek’s original cotenancy interest — there was no cotenancy at the time of the 1968 transfer. Moreover, even assuming, arguendo, that despite the transfer of his beneficial interest to Mrs. Ciolek, plaintiff would be entitled to contribution for expenses paid during the period in question, the evidence contained in his offer of proof would not support an equitable lien for contribution. A cotenant is entitled to a lien only to the extent that his expenditures exceeded the proportionate amount owed by him. (Sterling Savings & Loan Association v. Schultz (1966), 71 Ill. App. 2d 94, 218 N.E.2d 53.) Here, the offer of proof, consisting of a bundle of cancelled checks, shows only that plaintiff made payments; we assume payments concerning the property, although there is nothing in the offer of proof that would so indicate. Plaintiff has not alleged, nor does the offer of proof show, that these payments represent expenditures in excess of his fair share of expenses as a cotenant. Under these circumstances, we do not believe that the trial court abused its discretion in excluding the evidence in question.

Plaintiff also maintains that the trial court erred in excluding evidence of expenses paid by Mrs. Ciolek from 1968 through 1971, during her cotenancy with defendant and prior to her refusal to bear any of the expenses. According to the trial court’s order entered nunc pro tunc as of March 2, 1981, exclusion of that evidence was based on Mrs. Ciolek’s deposition and certain excerpts from the record in Ciolek v. Jaskiewicz (1976), 38 Ill. App. 3d 822, 349 N.E.2d 914, which the parties submitted as evidence on the issue. Plaintiff, who had the responsibility of providing a record which would enable us to resolve the issues raised (City of Chicago v. Hutter (1978), 58 Ill. App. 3d 468, 374 N.E.2d 802), failed to include either the deposition or the excerpts specified in the trial court’s order, claiming that they were not material to the issue. However, we can conceive of nothing which would have more relevance on appeal that the evidence upon which the trial court based its disputed ruling. While we have no way of determining the exact substance of that evidence, it appears from the wording of the trial court’s order that the material in question contained some admission by Mrs. Ciolek that defendant paid her proportionate share of expenses during the period in question. Such admissions against interest appearing in a deposition (Luthy v. Keehner (1980), 90 Ill. App. 3d 127, 412 N.E.2d 1091) or testimony (Bishop v. Crowther (1980), 92 Ill. App. 3d 1, 415 N.E.2d 599), even those made in a separate action (Kellogg v. Bickford (1917), 206 Ill. App. 76 (abstract of opinion)), are admissible not only against the declarant, but against assignees (Household Finance Corp. v. Mowdy (1973), 13 Ill. App. 3d 822, 300 N.E.2d 863) or others claiming under right of the declarant (Lee v. Central National Bank & Trust Co. (1974), 56 Ill. 2d 394, 308 N.E.2d 605). In any event, it is clear that, contrary to plaintiff’s assertion, the trial court was not ruling as a matter of law that he was not entitled to contribution for payments made by Mrs. Ciolek; but, rather, that as a matter of fact, no contribution was owed because defendant had paid her proportionate share of expenses. If the evidence in fact so established, the trial court’s exclusion of the evidence was proper since, as we previously stated, a cotenant has a claim for contribution only to the extent that his payments have exceeded his proportionate share of expenses. (Sterling Savings & Loan Association v. Schultz (1966), 71 Ill. App. 2d 94, 218 N.E.2d 53.) Without the facts before us upon which the trial court based its finding, we must assume that the evidence supported its ruling. See Wade v. Gentle (1981), 101 Ill. App. 3d 1042, 428 N.E.2d 1085.

Finally, plaintiff asserts that the trial court should have admitted evidence purportedly establishing defendant’s “unclean hands,” maintaining that such evidence would have precluded any equitable claim for contribution. In particular, he contends that the trial court should have considered evidence with regard to defendant’s acquisition of Mrs. Ciolek’s 50% interest in 1970, and evidence that defendant breached an agreement to provide support for Mrs. Ciolek. He argues that this evidence, if received, would have barred — at least in part — defendant’s counteraction for an accounting.

The misconduct of a party which will preclude recovery under the doctrine of “unclean hands” must have been conduct directed toward the party making the contention and involving the transaction before the court. (David v. Russo (1980), 91 Ill. App. 3d 1023, 415 N.E.2d 531.) Moreover, the purpose of the doctrine is to protect courts of equity in keeping with the policy that equity should not aid a wrongdoer; it is not to protect the party asserting it as a defense. (Mother Earth, Ltd. v. Strawberry Camel, Ltd. (1979), 72 Ill. App. 3d 37, 390 N.E.2d 393.) The doctrine is not favored by the courts, nor was it intended to prevent equity from doing complete justice between the parties (Baal v. McDonald’s Corp. (1981), 97 Ill. App. 3d 495, 422 N.E.2d 1166), and its application is within the sound discretion of the trial court (Edens View Realty & Investment, Inc. v. Heritage Enterprises, Inc. (1980), 87 Ill. App. 3d 480, 408 N.E.2d 1069).

With regard to the transfer of Mrs. Ciolek’s beneficial interest to defendant in 1970, it appears that the trial court was well aware of the facts of that transaction, having taken judicial notice of our opinion in Ciolek v. Jaskiewicz, but ruled that it did not establish defendant’s “unclean hands” in the transaction before it. We agree that these were separate transactions, and the question whether the transfer was wrongfully obtained had no bearing on the question whether Mrs. Ciolek, having succeeded in being restored to a 50% ownership interest therein, was required to bear her proportionate share of the expenses as cotenant. Plaintiff has neither alleged nor shown that there was anything wrongful or fraudulent in defendant’s payment of the expenses, or that she acted in bad faith in so doing, and we perceive no misconduct in a cotenant seeking contribution for reasonable expenses. In effect, what plaintiff demanded was that the trial court go beyond redressing Mrs. Ciolek’s injury, which was accomplished by ordering restoration of her property interest, and punish defendant for her conduct by requiring her not only to return the improperly acquired interest, but to bear all of the expenses for which the wronged party was liable. We do not believe that the trial court abused its discretion in refusing to do so; it is the function of a court of equity to do justice, not to mete out punishment.

Plaintiff also asserts that defendant’s recovery should be barred because she breached a promise to provide financial support for Mrs. Ciolek, allegedly made in exchange for an assignment of a 50% beneficial interest in the land trust. It is somewhat unclear which assignment plaintiff refers to, since in his initial brief he asserts that the promise was made in conjunction with the 1970 transfer, while in his reply brief he maintains that the obligation was consideration for the 1968 transfer. In either case, we agree with the trial court that the alleged breach of this agreement was immaterial to the transaction before it. Assuming arguendo the existence of the agreement and breach thereof by defendant, any misconduct on her part affected Mrs. Ciolek, not plaintiff. Had defendant brought an action for an accounting against Mrs. Ciolek, seeking contribution, it is true that the agreement might have been a defense, not as a showing of “unclean hands,” but as proof that no contribution was owed. It is apparently plaintiff’s theory that the defense is also available to him; however, he was not a third-party beneficiary of the alleged agreement, and we do not believe that Mrs. Ciolek’s transfer to him of a 50% beneficial interest in the land trust operated either as an assignment to him of the benefits due her under the agreement or as an assignment of her cause of action for breach of contract. In sum, any rights which Mrs. Ciolek may have had arose from the contractual relationship with defendant, not from the cotenancy relationship, and the only issue before the court in the instant case was the parties’ rights and obligations as cotenants.

For the foregoing reasons, the order of the trial court is affirmed.

Affirmed.

MEJDA, P.J., and LORENZ, J., concur.

      We note that this argument would likely be precluded by the adjudication in Ciolek v. Jaskiewicz (1976), 38 Ill. App. 3d 822, 349 N.E.2d 914, that Mrs. Ciolek did not understand the nature of the 1970 transfer and had no intention of assigning her interest to defendant.


author: JUSTICE VAN DEUSEN

text:
    BRUNO BENEDETTI & SONS, INC., Plaintiff-Appellant, v. ROBERT O’MALLEY et al., Defendants-Appellees.
    Second District
    No. 83—539
    Opinion filed May 22, 1984.

      Marianne D. Yacobellis, of Cellucci & Yaeobellis, of Naperville, for appellant.
    Robert E. Chew, of Chew & Yorke, of Wheaton, for appellees.
   JUSTICE VAN DEUSEN

delivered the opinion of the court:

On February 7, 1981, defendants Robert and Margaret O’Malley entered into an installment agreement with plaintiff for a residential property. The O’Malleys failed to make installment payments for January, February and March 1982. On February 19, 1982, plaintiff’s notice of intent to declare a forfeiture was served on Robert O’Malley at his place of business, and, at the same time, a copy addressed to Margaret O’Malley was also delivered to Robert O’Malley. On or about March 23, 1982, the O’Malleys vacated the premises.

On June 17, 1982, plaintiff filed a two-count complaint against the O’Malleys and others, whose claims were apparently based on May and June 1981 conveyances of the property. Count I against the O’Malleys was for breach of contract for failure to make required payments for January through March 1982, to pay accrued taxes, and to keep the premises in good condition and repair. Count II alleged that plaintiff had reacquired title to the subject realty by the declaration of forfeiture and the defendants’ claims to the property constituted a cloud on plaintiff’s title. As relief plaintiff sought judgment against defendants in the amount of $7,193.46, costs and reasonable attorney fees, and a decree finding and confirming title in plaintiff’s name in fee simple, free and clear of defendants’ purported claims of interest.

On July 29, 1982, plaintiff caused to be recorded with the Du Page County recorder of deeds a declaration of forfeiture of the interest of the O’Malleys. On August 24, 1982, a default order was entered against the defendants for failure to appear or answer, and the matter was continued for proof of damages. On September 24, 1982, counsel for defendants was granted leave to file an appearance and one week to file an answer.

At this point plaintiff’s counsel incorrectly suggested to the court that a section 72 petition (Ill. Rev. Stat. 1981, ch. 110, par. 72, now Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1401) was necessary because 31 days had elapsed since the entry of the default order. The judge mistakenly agreed and, in substance, directed defense counsel to file such a motion and stated that he would vacate it and give plaintiff a day in court but that if an answer was not filed within one week from that day, he was going to have a prove-up instanter. On October 1, 1982, defendants filed a section 2 — 1401 petition, which the trial court granted and vacated the default order.

On October 20, 1982, plaintiff filed an amended complaint which was substantially the same as the original. On November 9, 1982, defendants filed a motion for summary judgment, alleging as to count I that, after defendants Robert and Margaret O’Malley vacated the premises in response to plaintiff’s February 19, 1982, notice of intent to declare a forfeiture of rights under the articles of agreement, plaintiff took physical possession of the subject property; that plaintiff thus unilaterally terminated the O’Malleys’ interest; that plaintiff subsequently took the benefit of such termination; and that plaintiff now sought relief based on the articles of agreement. As to summary judgment on count II, the other defendants maintained that plaintiff reacquired the fee simple title to the real estate free of their interest in it by the declaration of forfeiture recorded July 29,1982.

The trial court granted defendants’ motion for summary judgment on both counts, and a written order was filed March 15, 1983. In substance, the court found, inter alia, that an election to declare forfeiture dated February 19, 1982, was served by plaintiff on defendant O’Malleys, that possession of the subject real estate was regained by plaintiff between the service of that notice and commencement of the present action on June 17, 1982, that by service of the notice plaintiff had made an election to the exclusion of other available remedies it may have had, and that under Herrington v. McCoy (1982), 105 Ill. App. 3d 527, this election constituted a bar in the instant case to suit for other damages. Plaintiff’s motion for reconsideration was denied.

We first note that appellees have failed to file a brief in this appeal; however, pursuant to the guidelines in First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 130, we have chosen to consider and decide the merits of the appeal.

Plaintiff’s first contention on appeal deals with alleged errors of the trial court in vacating an order of default more than 30 days after its entry. The basic flaw in this contention is that it is based upon the premise that the order of default was a final order and that, therefore, a petition pursuant to section 2 — 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1401) was required in order for the trial court to have authority to vacate the order. However, the order of default in question was not a final order. After entering the default order, the trial court had continued the cause for a prove-up of damages. No judgment for damages was ever entered.

Because the order of default was not a final order or judgment, a section 2 — 1401 motion was neither necessary nor proper. The trial court had the authority pursuant to section 2 — 1301(e) of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1301(e)) to set aside the order of default in its discretion before final order or judgment. Section 2 — 1401 applies to petitions for relief from final orders or judgments after 30 days from the entry thereof, and defendants’ motion here was outside the ambit of that section. The court required a section 2 — 1401 petition pursuant to a request by plaintiff, and we deem that it is not proper that plaintiff should be able to take advantage of a trial court error that it induced.

Since this situation is not under section 2 — 1401, defendants did not have to conform to the requirements of that section and affirmatively show due diligence and a meritorious defense. The court was aware of the pertinent facts: only 31 days had elapsed since the entry of the default order; according to the complaint, plaintiff had served a notice of forfeiture and had declared a forfeiture while seeking damages to the subject property; and defendants appeared before the court and were ready to answer. Under these circumstances, the court properly exercised its discretion to grant the defendants their day in court to answer and defend against plaintiff’s claims.

Plaintiff next contends, in essence, that the trial court erred in granting defendants’ motion for summary judgment based on a finding that plaintiff made an effective election to declare a forfeiture which barred the action for damages. Plaintiff posits three bases to support this contention. None appear meritorious.

First, plaintiff asserts that the trial court erred in finding that service of a notice of intent to declare a forfeiture barred any action for further damages where there was no evidence before the court that the value of the property had appreciated, citing Herrington v. McCoy (1982), 105 Ill. App. 3d 527. Because the court had no evidence on appreciation in value at the time it ruled on the motion for summary judgment, plaintiff asserts that a fact question existed that made summary judgment improper. Plaintiff misinterprets Herrington.

Herrington holds that under Illinois authority in forfeiture cases a party cannot make claims arising out of breach of contract terms after having elected to retake the property. (105 Ill. App. 3d 527, 530-32.) The language upon which plaintiff relies comes in reference to cases where election of remedies occurred in settings other than that of forfeiture, which cases the court had distinguished prior to announcing its holding. It is a statement of the court offered as further support for the holding that the court had already stated was mandated by prior forfeiture cases. (105 Ill. App. 3d 527, 532.) This language was not essential to the holding.

This reading of Herrington is supported by the fact that, contrary to plaintiff’s statement on appeal that there was evidence of such appreciation in Herrington, no reference to any such evidence appears in the opinion in that case. Further, the court went on to point out in that case that plaintiffs need not have opted for the termination and forfeiture remedy if they felt that it would not afford adequate compensation but could have allowed the contract to remain in force and sued for actual damages. (105 Ill. App. 3d 527, 532.) In Herrington, adequacy of the vendor’s compensation is not determinative of whether he has made a binding election by declaration of forfeiture.

Plaintiff goes on to argue that the termination notice in the case at bar was served after the filing of the complaint and defendants’ vacation of the premises, whereas in Herrington the notice was served prior to retaking possession. Actually, the notice of intent to declare a forfeiture was served in this case on February 19, 1982; defendants vacated the property at the end of March 1982; the complaint was filed June 17, 1982; and the declaration of forfeiture was filed with the county recorder on July 29, 1982. Even if the effective date of plaintiff’s election here was July 29, 1982, Morey v. Huston (1967), 85 Ill. App. 2d 195, 200, holds that a subsequent forfeiture of the contract amounts not only to a termination of the contract but also an abandonment of a suit previously instituted to recover back installments, taxes and insurance required under the covenants of the contract. Plaintiff’s claims here are similarly based on covenants in the contract and, based on Morey, it is immaterial to an effective election to bar suit for contract damages whether the forfeiture was declared after the institution of the suit.

Next, plaintiff maintains that, without further evidence or the taking of testimony, the court could not determine whether the filing of the termination notice was an election vis-a-vis the O’Malleys or one only with respect to the other defendants, who derived their interest through conveyances subsequent to the installment contract. This argument borders on specious. It is true that the declaration of forfeiture names only the O’Malleys, which is proper since they were the parties to the installment agreement. However, the court had before it a complaint in which plaintiff alleged that the claims of the other defendants were derivative of the installment agreement extinguished by the forfeiture and in which plaintiff requested as relief a decree finding and confirming its title in fee simple, free and clear of the purported interest of all defendants. The plaintiff’s election of forfeiture was directed against all defendants, and no further testimony or evidence was necessary for that determination.

As a second basis for its contention that the court erred in finding that plaintiff made an effective election to declare a forfeiture that barred an action for damages, plaintiff argues that the court afforded no consideration to language in the agreement in the case at bar, which specifically states that forfeiture is not the exclusive remedy and that the seller has the right to pursue every other remedy given by the agreement, law, or equity contemporaneously with exercise of the right of forfeiture. Plaintiff contends that this provision, which was not present in Herrington, contemplated precisely the situation here and to deny recovery in dependence on Herrington and without consideration of the aforesaid provision is to deny plaintiff’s freedom to contract and to fail to consider all the facts before the court in granting summary judgment.

The relevant provisions of the agreement here are as follows:

“If the PURCHASERS fail to cure [a] default within the [stated] cure period, this contract shall, at the option of SELLER, be forfeited, and the PURCHASERS shall forfeit all payments made pursuant to this agreement and such payments shall be retained by SELLER as damages by SELLER sustained and in such event SELLER shall have the right to reenter and take possession of the premises aforesaid.
In the event this agreement shall be declared null and void by SELLER on account of any default, breach or violation by PURCHASERS in any of the provisions hereof, this agreement shall be null and void and be so conclusively determined by the filing by SELLER of a written declaration of forfeiture hereof in the Recorder’s office of the County in which the property is located.
The remedy of forfeiture herein given to SELLER shall not be exclusive of any other remedy given by this agreement or by law or equity and SELLER shall have every other remedy given by this agreement or by law or equity, and shall have the right to maintain and prosecute any and every such remedy contemporaneously or otherwise with the exercise of the right of forfeiture or any other right herein given.”

The first provision is similar to that in Herrington. The second provision states that seller’s filing of a written declaration of forfeiture in the county recorder’s office, as plaintiff did, constitutes a conclusive determination that he has declared the agreement to be null and void and it has become so. The third provision, upon which plaintiff relies, preserves seller’s right to pursue any other claims under the agreement, law or equity contemporaneously with that of forfeiture, and would seem to include an action, such as this, for contract damages.

However, in construing a contract, it is presumed that all provisions were inserted for a purpose, and conflicting provisions will be reconciled if possible so as to give effect to all of the contract’s provisions. (National Aircraft Leasing, Ltd., v. American Airlines, Inc. (1979), 74 Ill. App. 3d 1014, 1023.) The second provision here expressly provides that filing the declaration of forfeiture is a conclusive determination that the seller holds the contract null and void, while the third provision purportedly reserves the right of the seller to sue on the contract at the same time. A vendor may not invoke a remedy based on affirmance of the contract and also invoke a remedy that is based on disaffirmance. (Morey v. Huston (1967), 85 Ill. App. 2d 195, 200.) In order to give effect to both provisions, the contract must be construed so as to allow remedies contemporaneous with forfeiture other than those based on the contract itself, e.g., negligent damage to the premises.

The plaintiff here specifically sought damages based on the contract itself and, in the same complaint, sought a declaration of fee simple title in its name based on the forfeiture. Subsequent to filing the complaint, plaintiff caused a declaration of forfeiture to be filed with the county recorder. Actions recognizing and based on the existence of the contract are effectively at an end after forfeiture because the right to exercise them died with the termination of the contract; the death of such rights by forfeiture causes with it the death of pending suits whose sole foundation is the existence of such rights. The continuation of a suit for breach of contract after forfeiture would eliminate the very basis on which the forfeiture itself rests. (Morey v. Huston (1967), 85 Ill. App. 2d 195, 200-01.) The remedy plaintiff sought in its lawsuit is not one that plaintiff could pursue subsequent to declaration of forfeiture, and this conclusion is not at odds with the language of the contract when construed so as to give effect to all of its provisions.

Plaintiff’s third and final basis for its contention that the trial court erred in finding that plaintiff made an effective election to declare a forfeiture, thus barring the contract damages action, is that the interest of Margaret O’Malley was never appropriately forfeited because notice to her was defective. Even if, as plaintiff maintains, a rule of equity has evolved that a purchaser must be given a reasonable warning of the seller’s intention to declare a forfeiture and 30 days’ notice is sufficient (Limar-Pinehurst, Inc. v. Welter (1976), 38 Ill. App. 3d 800, 807 (Dixon, J., dissenting)) and if that requirement would be applicable on the facts of this case, the purpose of such a requirement is to protect the interests of the buyer (see Kirkpatrick v. Petreikis (1976), 44 Ill. App. 3d 575, 577). Similarly, the statutory requirement of 30 days’ notice either personally delivered to purchaser or sent to his last known address by registered or certified mail before an action in forcible entry and detainer may be maintained (Ill. Rev. Stat. 1981, ch. 110, pars. 9 — 102, 9 — 104), cited by plaintiff in support of its position, is intended for the buyer’s benefit. (See Limar-Pinehurst, Inc. v. Welter (1976), 38 Ill. App. 3d 800, 807 (Dixon, J., dissenting).) Likewise, the contract provision that the seller is to notify the purchasers by certified mail, return receipt requested, of any default and allow them 10 days to cure the default and that, upon their failure to cure, the contract could, at seller’s option, be forfeited is for the benefit of the buyers and not for the benefit of the seller. The buyers here do not complain of the forfeiture, but have and do acquiesce in it. (See Morey v. Huston (1967), 85 Ill. App. 2d 195, 198.) It is not proper that the seller should be able to escape the result of its election by this means.

In sum, the court had and properly exercised its discretion pursuant to section 2 — 1301(e) of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1301(e)) to set aside the order of default before a prove-up was had and any default judgment was entered. Since this was not a final judgment, a section 2 — 1401 motion was not necessary, and defendants did not have to conform to the requirements of that section by affirmatively showing due diligence and a meritorious defense. Plaintiff’s contention that the trial court erred in granting defendants’ motion for summary judgment based on a finding that plaintiff made an effective election to declare a forfeiture lacks merit on all three proffered bases. Having exercised its right to declare a forfeiture, the seller made its choice. Plaintiff can have one remedy but not both. Plaintiff chose to take the property and terminate the contract. It is bound by that choice. Morey v. Huston (1967), 85 Ill. App. 2d 195, 201.

The judgment of the trial court is affirmed.

Affirmed.

NASH and UNVERZAGT, JJ., concur.