author: PRESIDING JUSTICE ROMITI

text:
    TONI PARSON, Plaintiff-Appellee, v. THE CITY OF CHICAGO, Defendant-Appellant.
    First District (4th Division)
    No. 82 — 1528
    Opinion filed August 18, 1983.

      Stanley Garber, Corporation Counsel, of Chicago (Jerome A. Siegan and Frank W. Nagorka, Assistant Corporation Counsel, of counsel), for appellant.
    Carr & O’Rourke and William J. Harte, Ltd., both of Chicago (William J. Harte, of counsel), for appellee.
   PRESIDING JUSTICE ROMITI

delivered the opinion of the court:

Plaintiff was severely and permanently injured in 1980 when a car after hitting a pothole on a street veered to its right and struck her. She sued both the driver of the car and the city of Chicago, as owner of the street. The jury returned a verdict against both for $1,250,000. Only the city of Chicago appeals. On appeal the city contends that:

(1) it had no duty to improve the street and that arguments and evidence of plaintiff could have led the jury to find it liable because no curbs had been installed;

(2) the trial court erred in refusing to allow evidence there had been no prior accidents on this street;

(3) the trial court erred in refusing to grant a mistrial after certain television commentaries and newspaper articles on the failure of asphalt crews to actually do their work;

(4) the trial court erred in permitting the admission of a gruesome photograph of plaintiff after she was injured;

(5) testimony concerning the diminution in plaintiff’s earning potential was improperly admitted.

This court finds no reversible error and affirms.

The accident occurred on South St. Louis Street in Chicago. South St. Louis as characterized by both sides is a W.P.A. street built during the depression and later taken over by the city. It is much narrower than the usual street, being 18 feet wide, and has no curbs or gutters. Cars parking along the street pull up next to the sidewalk.

On April 19, 1980, until about 10 p.m. plaintiff was a healthy, normal 17-year-old senior in high school. She was very active in sports. She and her boyfriend, Mark Myers, had been laying sod that afternoon. She and Mark had pizza and then sat on the front porch. About 10:15 they walked to Mark’s car which was parked next to the sidewalk. Plaintiff stood leaning against Mark’s car conversing with him until the accident.

About this time the Duncans, also defendants but not appellants in this case, turned down St. Louis because a freight train blocked their route on West 55th Street. Thelma Duncan was driving; her husband was a passenger. According to their testimony, when the car hit a pothole in the street it veered to the right and ran into plaintiff. Several neighbors testified that immediately after the accident Thelma Duncan was hysterically crying that she had hit a hole and lost control of the car.

There is no dispute that there was a pothole in the street. According to police officer McCarthy, the investigating officer, the areas of the pothole he examined, for one minute by flashlight, were one to three inches deep. The other witnesses, all people who were familiar with the street, testified the pothole, which was to three feet wide and four feet long, ranged from two to eight inches in depth, it being deeper in some places than in others. The city produced evidence that there had been work crews out on the street in October, November and December, 1979, and March 1980. However, again, there were about eight witnesses who testified that the pothole had been there at least three months. There was some evidence that complaints had been made about the pothole. There was also evidence that unimproved streets such as this were lowest on the priority list for street repairs, being repaired only on an emergency basis or complaint basis where it was verified that repairs were needed. There was a different standard of maintenance care for improved and unimproved streets; unlike unimproved streets, the city attempts to bring the surface of improved streets back as nearly as possible to the original condition.

The Duncan car struck plaintiff and she ended up under the automobile. After the car stopped, she looked up and saw “on my hip it was just a bunch of flesh and muscle and blood was all over and I just started screaming.” The pain caused her to scream although she was in a semiconscious state and she “felt like dying.” The paramedic who responded to the call found her suffering from traumatic amputation of the leg as well as spinal, neck, head and chest injuries. Plaintiff was rushed to the hospital. Dr. Saletta, the surgeon who first saw her, testified all the muscles of her anterior thigh were lacerated up to the inguinal skin crease, the femur and upper part of the thigh bone were fractured and only an inch of skin held the lower leg to the upper thigh. Dr. Saletta felt that he had no choice but to operate. Muscle had to be removed along with the remainder of the femur, because there was insufficient muscle and skin to cover the area.

After surgery, plaintiff while in the hospital was in a great deal of pain. When she first saw herself in the mirror she hated it and determined to kill herself because she could not stand people looking at her. Plaintiff still has trouble wearing a prosthesis, which Dr. Saletta said was probably due to insufficient muscular protection over the hip socket. Plaintiff testified she had trouble venturing out of her home; she feels people will stare at her.

Dr. Wolin, a psychiatrist who treated plaintiff after the accident, testified that she had suffered a complete personality change. Dr. Fischer, a vocational expert witness, examined plaintiff for purposes of testifying. He administered a battery of standard psychological tests. Based on the tests he found a deterioration of functions which he believed was due to her emotional difficulties. He concluded she had very significant depression relative to the loss of the limb and the loss of the activities that she could engage in if she had the limb. He found because of her psychological condition she was incapable of any substantial gainful employment at the time. He felt that after undergoing between one and two years of a multiple impact, highly intense rehabilitation program, including continued regular individual psychotherapy sessions, regular group therapy sessions with other people who have amputations, antianxiety medication, antidepressant medication and even possibly additional pain medication, vocational counseling and rehabilitation which incorporate occupational therapy and evaluation, she could become employable. This therapy would cost $6,300 a week.

Fischer also testified as to the annual salaries of a general secretary, a word processor operator and a worker in health services. The city objected to this testimony on the grounds there was no showing what plaintiff might have done for a living.

After receiving proper instructions the jury deliberated and returned a verdict for plaintiff jointly and severally against both defendants for $1,250,000.

I

The city first contends that since the plaintiff was “from opening statement to closing argument” allowed to put before the jury the dichotomy between W.P.A. streets and improved streets, the jury could improperly have found it liable for failure to provide a better quality street even though the street was properly maintained. We do not need to consider whether a city can ever be required to improve a street which it accepts no matter in how dangerous a condition it was when accepted, since we find the jury was not misled into believing that was an issue.

While the city without citation refers in its argument to the “numerous occasions” when plaintiff was allowed to present argument and evidence as to what a municipal government owes city residents in terms of public improvements, in fact it cites only testimony distinguishing the types of streets and plaintiff’s statement in closing argument that residents of St. Louis Avenue were second-class citizens.

The witnesses without objection testified that a W.P.A. street had no curbs and gutters. The city only objected to evidence that improved streets had curbs and gutters; information certainly within the common knowledge of any juror. Since plaintiff was attempting to prove, unsuccessfully, that curbs could act as barriers, evidence that one type of street had curbs and one did not was relevant to the question how dangerous a pothole could be and the need for immediate repairs. Likewise the absence of gutters in the one and presence in the other could be found to affect the rate of deterioration and thus relate to the frequency of need for repairs. As one of the city employees testified, unimproved streets needed more maintenance than improved streets. Thus the jury could have easily found that the city’s practice of handling such streets last and only on an emergency or verified complaint basis did not fulfill its duty to reasonably maintain such streets. We agree with the judge’s decision at trial that such evidence would not suggest a duty to make public improvements since the jury would be properly instructed.

Plaintiff’s argument that residents of the street were second-class citizens did not refer to the fact the street was not improved but to the fact the street was last on the priority list for repairs.

The trial lasted for about two weeks. Over this time the jury heard much evidence, of which the testimony that improved streets had curbs and gutters was only a small part. Plaintiff’s closing argument correctly set forth the grounds on which recovery was being sought, namely that the potholes had been allowed to remain and that the city had failed to warn the general public or place barricades. Likewise the jury was not only properly instructed as to the issues but was expressly instructed that the city had no duty to install curbs and gutters on that street. The jury could not have been misled into believing that it could find the city liable merely because of their absence.

II

The city next contends that its defense was prejudicially compromised by the trial court’s refusal to allow testimony that during the time Mark Myers was there, 300 to 400 vehicles had travelled down the street but that there had been no accidents, although some had hit the pothole. The city contends that since a municipality must use only reasonable care in maintaining its streets, the absence of other accidents on the street would be probative evidence that it had been using reasonable care in maintaining the street. The city does not, in its brief on appeal, contend the evidence would be relevant for some other purpose.

It is doubtful whether the city offered any real evidence as to the number of cars which passed the spot prior to the accident. Most of the statements of Mark Myers that the city would like to rely on came not from the offer of proof of Myers’ testimony but from a prior deposition of his used by the city to impeach his answers during the offer of proof. But a deposition used to impeach is not evidence in itself. People v. Fields (1975), 31 Ill. App. 3d 458, 334 N.E.2d 752, appeal denied (1975), 61 Ill. 2d 599; 81 Am Jur. 2d Witnesses sec. 599 (1976).

In any event as the trial court noted there was no evidence of the angle, the condition of the vehicle, familiarity of drivers with the potholes, and other factors. Generally evidence of the absence of prior accidents is proper only if the offering party lays a proper foundation by establishing that such absence took place under conditions substantially similar to those surrounding the accident sued upon. (Smith v. Verson Allsteel Press Co. (1979), 74 Ill. App. 3d 818, 393 N.E.2d 598, appeal denied (1979), 79 Ill. 2d 624.) Absent such proof the trial court did not abuse its discretion in refusing to admit the evidence, particularly since “evidence of absence of accidents has less probative value than evidence of previous accidents, and thus is more easily outweighed by the factor that the collateral issue will result in jury confusion *** Evidence of absence of accidents usually involves generally unreliable negative evidence *** and does not tend directly to prove absence of negligence.” Grubaugh v. City of St. Johns (1978), 82 Mich. App. 282, 288, 289, 266 N.W.2d 791, 794, appeal denied.

Furthermore it is difficult to see how evidence of lack of prior accidents could help establish proper maintenance, although it might be relevant to the issues of causation or constructive notice, neither of which was argued by the city on appeal. That the pothole existed was undisputed. Proper maintenance includes the filling of potholes and the repairing of deteriorated portions of the roadway. (Harding v. Chicago Park District (1975), 34 Ill. App. 3d 425, 339 N.E.2d 779, appeal denied (1976), 62 Ill. 2d 589.) Even if the precise type of accident which did occur was unexpected, it is not unforeseeable that accidents can be caused by potholes. And the jury did determine that the pothole did in fact cause the accident.

Ill

While the trial was in process in February 1982, Walter Jacobson, a well-known television commentator, presented a two-day commentary on the city’s street maintenance crews. He suggested that the crews were not doing their work, were dumping asphalt in backyards and alleys instead of filling the potholes. The Chicago Sun-Times also picked up the story. The trial court conducted a careful and extensive voir dire during which it was pointed out that the revelations were irrelevant to the case if for no other reason that the accident took place in 1980 not 1982. While several of the jurors had seen the news article or the commentaries or at least had heard of them, they all agreed that neither would influence their decision. The trial court instructed the jury to disregard the commentaries and newspaper report and concluded a mistrial was not necessary.

The determination whether or not a juror can weigh the evidence impartially rests in the sound discretion of the trial court which will not be set aside unless it is against the manifest weight of the evidence. (People v. Cole (1973), 54 Ill. 2d 401, 298 N.E.2d 705.) In a typical instance of outside publicity the examination of the jurors is probably the most valuable means of ascertaining the partiality or impartiality of the jurors. (People v. Spagnola (1970), 123 Ill. App. 2d 171, 260 N.E.2d 20, cert. denied (1971), 402 U.S. 911, 28 L. Ed. 2d 653, 91 S. Ct. 1389.) Although many of the jurors stated they had read the article or heard the commentaries or heard talk of them this alone is not decisive as it is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court. (Spagnola.) Here the trial court could reasonably conclude that the jurors could set aside what they had heard and decide the case on the evidence alone. The city points to the hesitancy of one juror who said he was not sure the news report would have any effect on him whatsoever. However he went on to state that he did not think it would influence his decision one way or the other and that it would not make him more prejudiced against the city.

IV

The city next contends that a gory photograph taken shortly after the accident and before surgery was improperly admitted since it so inflamed the jury as to prejudice the defendant and there was other evidence from plaintiff and other witnesses as to her injuries and the pain suffered. The admission of photographs is within the discretion of the trial court. (In re Brooks (1978), 63 Ill. App. 3d 328, 379 N.E.2d 872.) Photographs may be admitted to show the physical condition of a person at a particular time or the existence, nature and location of wounds or injuries and the fact that a photograph is of a gruesome nature does not necessarily render it inadmissible. (In re Brooks.) Nor does the fact that other witnesses testified as to the plaintiff’s injuries. (Darling v. Charleston Community Memorial Hospital (1964), 50 Ill. App. 2d 253, 200 N.E.2d 149, affirmed (1965), 33 Ill. 2d 326, 211 N.E.2d 253, cert. denied (1966), 383 U.S. 946, 16 L. Ed. 2d 209, 86 S. Ct. 1204.) It is an old cliche that a picture is worth a thousand words. Much that sounds cold coming from a witness may be better conveyed by a photograph.

Hulsebus v. Russian (1969), 118 Ill. App. 2d 174, 254 N.E.2d 184, appeal denied (1970), 42 Ill. 2d 586, and Villegas v. Kercher (1956), 11 Ill. App. 2d 282, 137 N.E.2d 92, relied upon by the city, are not in point since in those cases the appellate court merely found that the trial court’s exclusion of evidence was not an abuse of discretion.

V

Lastly, the city contends that Dr. Fischer’s testimony as to the annual salaries of positions that would have been available to plaintiff was improper because there was no evidence showing how plaintiff’s injuries would in any way prevent plaintiff from earning those salaries. While the city objected to Fischer’s testimony on other grounds, this contention was apparently not raised either at trial or in the post-trial motions and thus was waived. (Johns-Manville Products Corp. v. Industrial Com. (1979), 78 Ill. 2d 171, 399 N.E.2d 606; In re Marriage of Melton (1981), 93 Ill. App. 3d 338, 417 N.E.2d 220; Hammonds v. Inland Tugs Co. (1979), 75 Ill. App. 3d 377, 393 N.E.2d 1328; Northern Trust Co. v. Winston (1975), 32 Ill. App. 3d 199, 336 N.E .2d 543.) In any event, since Dr. Fischer testified that plaintiff was incapable at the time of participating in any substantial gainful employment and would continue to be unless she had extensive psychological rehabilitation, the evidence was clearly relevant.

The city also complains of plaintiff’s suggestion in closing argument that the jury could multiply a minimal figure of lost earnings by the number of years she might have worked. Again no objection was made at the time nor was it mentioned in the post-trial motion. Accordingly the objection was waived. Sommer v. City of Taylorville (1978), 59 Ill. App. 3d 765, 375 N.E.2d 1031; Quigley v. Snoddy (1968), 102 Ill. App. 2d 232, 242 N.E .2d 775.

The amount of a verdict is largely within the discretion of the jury. (Lau v. West Towns Bus Co. (1959), 16 Ill. 2d 442, 158 N.E .2d 63, appeal dismissed (1959), 361 U.S. 127, 4 L. Ed. 2d 180, 80 S. Ct. 256.) While the city asked for a remittitur, we do not find that the verdict was so excessive as to be clearly erroneous or to show prejudice or passion, particularly since the trial judge, who presided at the trial and saw the plaintiff in person, approved the verdict. Orlandi v. Caraway (1973), 9 Ill. App. 3d 628, 293 N.E.2d 337.

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

Affirmed.

JOHNSON and JIGANTI, JJ., concur.


source: Caselaw Access Project

author: JUSTICE JOHNSON

license: Public Domain

text:
    GUY E. COLE et al., Plaintiffs-Appellants, v. PEKIN INSURANCE COMPANY, Defendant-Appellee.
    First District (4th Division)
    No. 82 — 2444
    Opinion filed August 25, 1983.

      Arthur H. Levinson, of Michael D. Spinak & Associates, of Chicago, for appellants.
    Pretzel & Stouffer, of Chicago (Robert Marc Chemers, of counsel), for appellee.
   JUSTICE JOHNSON

delivered the opinion of the court:

Plaintiffs, Guy E. and Kerry Cole, appeal the dismissal of their complaint against defendant, Pekin Insurance Company, and raise the following issues for review: (1) whether the physical contact requirement is an impermissible limitation on the uninsured motorist statute and is contrary to legislative intent and public policy; (2) whether the term, “hit-and-run” implies a requirement of physical contact; and (3) whether the prevention of fraud is a valid reason to frustrate the intent of the uninsured motorist statute.

We affirm.

An examination of the record establishes the following.

On May 16, 1979, plaintiff, Guy E. Cole, and his passenger, Kerry Cole, were involved in an accident with an unknown hit-and-run driver. They were forced off the highway in an attempt to avoid a head-on collision with a vehicle traveling northbound in a southbound lane. Plaintiffs were injured without any physical contact between their automobile and the hit-and-run vehicle.

At the time of the accident, plaintiff Guy Cole was insured by defendant insurance company. The uninsured motorist section of the policy provided in pertinent part as follows:

“The company will pay all sums which the insured *** shall be legally entitled to recover as damages from the owner or operator of an uninsured highway vehicle because of bodily injury sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured highway vehicle ***.”

The term “uninsured highway vehicle” included the term “hit-and-run vehicle,” which was defined as one “which causes bodily injury to an insured arising out of physical contact of such vehicle with the insured or with the vehicle which the insured is occupying at the time of the accident ***.”

After defendant refused to honor their uninsured motorist claim, plaintiffs filed a lawsuit. On September 16, 1982, the trial court, on defendant’s motion, dismissed plaintiffs’ complaint with prejudice. Plaintiffs appeal.

The first issue raised by plaintiffs is whether the physical contact requirement is an impermissible limitation on the uninsured motorist statute (Ill. Rev. Stat. 1979, ch. 73, par. 755a) and is contrary to legislative intent and public policy. Plaintiffs argue that the purpose of the statute is to compensate persons who are damaged through wrongful conduct of motorists who, because they are uninsured or not financially responsible, cannot be made to respond in damages. Plaintiffs contend that the uninsured motorist statutes are remedial in nature and should be liberally construed to provide broad protection to the insured against all damages resulting from bodily injuries sustained by the insured which were caused by the acts of the uninsured motorist. Plaintiffs cite case law from 17 other jurisdictions which hold that the physical contact requirement is an impermissible limitation.

Plaintiffs next argue that physical contact does not provide meaning to the term “hit-and-run” but is a way of preventing fraudulent claims. However, the prevention of fraud is not a valid reason to frustrate the uninsured motorist statute. According to plaintiffs, adversary proceedings can eliminate fraudulent claims.

In Ferega v. State Farm Mutual Automobile Insurance Co. (1974), 58 Ill. 2d 109, 317 N.E.2d 550, and Finch v. Central National Insurance Group (1974), 59 Ill. 2d 123, 319 N.E.2d 468, our supreme court considered the precisé issues raised by this appeal. In Ferega, plaintiff was injured when he attempted to avoid a collision with a vehicle which was never identified nor its driver apprehended. Plaintiff argued that the language in his automobile insurance policy should be modified so as to eliminate the requirement of physical contact in a hit-and-run and that the requirement of physical contact is against public policy. In Finch, plaintiff was injured by a driver who was trying to avoid a collision with an unidentified driver. In Finch, the supreme court reiterated its holding in Ferega that the physical contact between the vehicle of the insured and that of a hit-and-run driver was required under the insurance policy and inclusion of a provision to that effect was valid under the Illinois insurance statute. Finch v. Central National Insurance Group (1974), 59 Ill. 2d 123, 124.

Plaintiffs urge that this court foUow a recent trend in 17 jurisdictions which hold that the physical contact requirement is an impermissible limitation on public policy and is therefore invalid. However, even if we were in sympathy with plaintiffs’ contention, it is not for this court to reverse the opinions of the Illinois Supreme Court. (Mentesana v. La-Franco (1979), 73 Ill. App. 3d 204, 210, 391 N.E.2d 416, 421.) Therefore, we hold that the trial court properly dismissed plaintiffs’ complaint for uninsured motorist coverage where it alleged no physical contact.

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

Affirmed.

ROMITI, P.J., and JIGANTI, J., concur.


author: PRESIDING JUSTICE BUCKLEY

text:
      In re CUSTODY OF ANGELA MENCONI, a Minor—(Ozzie Menconi, Sr., et al., Petitioners-Appellees, v. Ozzie Menconi, Jr., Respondent-Appellant).
    First District (1st Division)
    No. 83 — 482
    Opinion filed August 22, 1983.

      John T. Carr and Mel Sloan, both of Chicago (Jerome Marvin Kaplan and Linda S. Kagan, of counsel), for appellant.
    Feiwell, Galper & Lasky, Ltd., of Chicago (David H. Levy and Andrew D. Eichner, of counsel), for appellees.
    Georgiana Daskais, of Chicago, guardian ad litem.

   PRESIDING JUSTICE BUCKLEY

delivered the opinion of the court:

Respondent, Ozzie Menconi, Jr., appeals from a judgment of the circuit court awarding permanent custody of his eight-year-old daughter, Angela, to the child’s grandparents, Ozzie Menconi, Sr., and Leota Menconi (petitioners). The record reveals that Angela was born on October 19, 1974, and her mother died shortly thereafter on December 20, 1974. After his wife’s death, Menconi Jr. asked his parents, petitioners herein, to care for the child. From the time of her mother’s death until April 11, 1981, Angela lived for the most part in the care and custody of her grandparents. There were several instances in the past when the child was returned to the father at his request, but he kept Angela for only short intervals — at the most, several weeks. He would then return the child to the petitioners, stating he was unable to properly care for her.

On April 11, 1981, the father forcibly removed Angela from the home of her grandparents and refused to return the child when requested to do so. Four days after the abduction of the child, the grandparents filed a petition for custody pursuant to section 601(b)(2) of the Illinois Marriage and Dissolution of Marriage Act (IMDMA). (Ill. Rev. Stat. 1981, ch. 40, par. 601(b)(2).) On March 18, 1982, the father filed a motion to strike and dismiss the grandparents’ third amended petition, arguing the petition failed to state a cause of action. Respondent contended that since he had actual physical possession of Angela when the petitioners initiated the custody litigation, the grandparents lacked standing under section 601(b)(2). The trial court rejected the father’s jurisdictional challenge and denied his motion to strike and dismiss. On January 3, 1983, following a hearing on the merits, the trial court awarded permanent custody to the petitioners.

The only issue raised on appeal is whether the grandparents had standing to file the petition under section 601(b)(2) of the IMDMA and the trial court jurisdiction to award custody of Angela to the petitioners where the child was in the actual physical possession of the father when the custody proceedings were initiated.

Section 601(b) delineates the standing requirements in a child custody action for both parents and non-parents and provides in relevant part:

“(b) A child custody proceeding is commenced in the court:
(1) by a parent, by filing a petition:
(1) for dissolution of marriage or legal separation or declaration of invalidity of marriage; or
(ii) for custody of the child, in the county in which he is permanently resident or found; or
(2) by a person other than parent, by filing a petition for custody of the child in the county in which he is permanently resident or found, but only if he is not in the physical custody of one of his parents." (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 40, par. 601(b).)

Once the standing and jurisdictional requirements set forth in the IM-DMA and the Uniform Child Custody Jurisdiction Act (UCCJA) (Ill. Rev. Stat. 1981, ch. 40, par. 2101 et seq.) are met, the court is directed to “determine custody in accordance with the best interest of the child” (Ill. Rev. Stat. 1981, ch. 40, par. 602).

A nonparent third party that fails to meet the section 601(b)(2) standing requirements is forced to proceed under the stricter standards of the Adoption Act (Ill. Rev. Stat. 1981, ch. 40, par. 1501 et seq.) or the Juvenile Court Act (Ill. Rev. Stat. 1981, ch. 37, par. 701— 1 et seq.). Before a third party can adopt the child of a nonconsenting parent pursuant to the Adoption Act, he or she is required to prove by clear and convincing evidence that the parent is “unfit.” (See Ill. Rev. Stat. 1981, ch. 40, pars. 1501(D), 1510; In re Adoption of Markham (1981), 91 Ill. App. 3d 1122, 414 N.E.2d 1351.) Only after this showing has been made will the court apply the best-interests-of-the-child standard to determine whether custody should be awarded to the third party. (In re Abdullah (1981), 85 Ill. 2d 300, 423 N.E.2d 915.) The Juvenile Court Act requires a showing that a minor child is delinquent, in need of supervision, neglected, or dependent (see Ill. Rev. Stat. 1981, ch. 37, par. 702 — 1) and then a child should be removed from the custody of his parents “only when his welfare or safety or protection of the public cannot be adequately safeguarded without removal.” Ill. Rev. Stat. 1981, ch. 37, par. 701 — 2(1).

The strict requirements imposed by the Adoption Act and the Juvenile Court Act have been construed as embodying a policy which favors the presumed superior right of natural parents over the competing claims of third persons seeking custody. (In re Custody of Townsend (1981), 86 Ill. 2d 502, 508-09, 427 N.E.2d 1231.) Similarly, the limitation on nonparent standing contained in section 601 has been construed as evincing a policy favoring parental custody rights by permitting third-party standing and the consequent application of the less stringent best interests standard only in those cases where the parent does not have physical custody. In re Custody of Barokas (1982), 109 Ill. App. 3d 536, 543, 440 N.E.2d 1036.

Respondent argues that the superior right of a parent to the custody of his children requires us to strictly construe section 601(b) in favor of the parent and against third-party standing. He contends that since he had physical possession of his child, petitioners should be precluded from proceeding under the IMDMA and should rather have to satisfy the more stringent requirements of the Adoption Act or the Juvenile Court Act. Petitioners argue that “physical custody” as that term is used in section 601(b)(2), means more than mere physical possession of the child and further contend the father cannot deprive the grandparents of physical custody of Angela, nor gain physical custody himself, so as to deprive the grandparents of standing under 601(b)(2), by taking the child by force from the grandparents’ home. Both petitioners and respondent cite In re Custody of Barokas (1982), 109 Ill. App. 3d 536, 440 N.E.2d 1036, in support of their respective positions.

In Barokas, the mother had temporarily placed her child in the care of her sister. A third party removed the child from the home of the sister and filed a custody petition under the IMDMA. There, we construed physical custody as the term is used in section 601(b)(2) to mean more than physical possession of the child, and stated:

“We are not convinced under the circumstances of this case that the manner in which petitioners acquired the child satisfied the standing requirement of section 601(b)(2). Overnight contact with third parties fails to fulfill the statutory provision that the child not be in the physical custody of one of her parents. A parent’s ‘actual possession and control of a child’ (Ill. Rev. Stat. 1979, ch. 40, par. 2103.08) is not lost every time the child visits or spends a vacation with a relative or friend. We do not accept petitioners’ theory that physical custody may be relinquished by default if a parent performs the task of parenting in a less than adequate manner. Petitioners cannot deprive respondent of physical custody of her child so as to acquire standing under section 601(b)(2) by taking the child from the home of her adult sister where respondent had placed her.” 109 Ill. App. 3d 536, 544.

As respondent correctly points out, our decision in Barokas was predicated on a parent’s superior right to the care, custody, and control of his child and the corresponding necessity for strict compliance with the statutory provisions of the IMDMA for third party standing in custody disputes. (109 Ill. App. 3d 536, 545.) While we recognize that a natural parent has a superior right to the custody of his child, that right is not absolute (see People ex rel. Edwards v. Livingston (1969), 42 Ill. 2d 201, 209, 247 N.E.2d 417) and does not require a rigid and unthinking construction of section 601(b)(2).

The statutory scheme in Illinois as enacted in the IMDMA and the UCCJA evinces twin policies favoring the superior rights of natural parents to the custody of their children and of fostering greater stability in the home environment by deterring abductions and other unilateral removals of children. (Ill. Rev. Stat. 1981, ch. 40, pars. 601, 2102(a)(4), 2102(a)(5).) In Barokas, both of these policies were served by favoring the parent, since a third party had unilaterally removed the child from the custody of the parent and thereby sought to obtain standing under section 601(b)(2). In the present case, these policies are brought into direct conflict. Angela was raised from infancy by petitioners and the father’s forcible removal of the child disrupted the de facto family relationship which existed between the child and her grandparents. We note that had the father sought legal redress of this custody dispute by way of habeas corpus relief or by proceeding under the custody provisions of the IMDMA, the court would have applied the best interests standard in resolving the dispute. (Ill. Rev. Stat. 1981, ch: 40, par. 602; In re Custody of Townsend (1981), 86 Ill. 2d 502, 509-11; People ex rel. Edwards v. Livingston (1969), 42 Ill. 2d 201, 209.) We will not now confer an advantage on the father by requiring the grandparents to proceed under the more rigorous standards set forth in the Adoption Act or the Juvenile Court Act.

Under the circumstances of this case, it is clear that the father had voluntarily relinquished physical custody of Angela in favor of the petitioners. The child lived in the virtually uninterrupted care and custody of her grandparents for 6^2 years. The report of the court appointed psychologist indicates that Angela was firmly integrated into the grandparents’ household which she considered to be her home and the relationship between the child and the grandmother was one of mother to daughter. In contrast, the father’s contact with his daughter can only be described as sporadic. We find the voluntary nature of the initial transfer of the child, coupled with the lengthy period of care by the grandparents and the corresponding integration of the child into the home of her grandparents, sufficient to divest the father of physical custody of the child. Accordingly, petitioners clearly would have had standing under section 601(bX2) prior to the time of the abduction of the child by the father. On these facts, we find the lapse of four days between the time of the abduction and the filing of the custody petition insufficient to reinvest the father with physical custody so as to deprive petitioners of standing.

For the foregoing reasons, we find petitioners had standing to bring this custody action pursuant to section 601(bX2) of the IMDMA and we therefore affirm the judgment of the circuit court.

Affirmed.

McGLOON and CAMPBELL, JJ., concur.


author: PRESIDING JUSTICE WILSON

text:
    CERES TERMINALS, INCORPORATED, Plaintiff and Counterdefendant-Appellant, v. CHICAGO CITY BANK AND TRUST COMPANY, Trustee, et al. Defendants and Counterplaintiffs-Appellees.
    First District (5th Division)
    No. 82 — 1445
    Opinion filed August 12, 1983.

      Lord, Bissell & Brook, of Chicago (Robert A. Knuti and Wendy S. Dorman, of counsel), for appellant.
    Wexler, Siegel and Shaw, Ltd., of Chicago (Stuart Smith, of counsel)/ for appellees.
   PRESIDING JUSTICE WILSON

delivered the opinion of the court:

Plaintiff, as lessee, brought this two-count action in the circuit court of Cook County seeking: (1) declaratory relief as to maintenance and repair obligations under a lease, and (2) specific performance of the renewal option clause in the lease, which it had failed to exercise timely. Defendants filed a counterclaim seeking essentially the same relief sought by plaintiff as to count I and, in addition, moved for summary judgment as to count II. The trial court granted defendants’ summary judgment motion, finding that, as a matter of law, plaintiff had forfeited its rights under the lease by failing to exercise timely the renewal option. On appeal, plaintiff claims that the trial court erred in its application of Illinois law and should have granted specific performance based upon the special circumstances present. For the reasons that follow, we affirm the trial court.

In February 1957, Overseas Shipping, Inc. (Overseas), predecessor to plaintiff, entered into a 20-year lease with Manor Real Estate Co. (Manor), defendants’ grantor, for the use of 18 of 32 acres owned by Manor. The lease contained an option clause granting Overseas the right to renew the lease for four successive five-year periods. Written notice of election to renew was required at least 12 months prior to the expiration of the current term.

In June 1975, Manor deeded the entire 32 acres of Lake Calumet property, subject to the lease with Overseas, to Scrap Corporation of America (SCA), a broker and processor of scrap metal. SCA, in turn, deeded the 32-acre site, through a nominee, to Chicago City Bank and Trust Company, as trustee, with Calumet Harbor Properties (CHP) as sole beneficiary.

On January 13, 1976, pursuant to written notice, Overseas exercised the first five-year renewal option for the period to commence February 1, 1977. Later that year, Overseas merged with Ceres Terminals, Inc., plaintiff, a corporation engaged in stevedoring and terminal activities. Subsequently, as the result of its own negligence, plaintiff failed to exercise timely the second five-year option which expired January 31, 1981. Approximately three weeks after the notice period expired, plaintiff realized its oversight and attempted to exercise the option via written notice, dated February 23, 1981. Defendants, however, refused to accept the late notice and notified plaintiff that the lease would expire on January 31, 1982. Plaintiffs thereafter filed an action for specific performance of the renewal option, in response to which defendants filed their motion for summary judgment.

In granting summary judgment to defendants, the trial court noted that, although theré' is a trend in other jurisdictions toward equitable mitigation of late option renewals, Illinois has not yet embraced the doctrine. Instead, Illinois follows the rule set forth in Dikeman v. Sunday Creek Coal Co. (1900), 184 Ill. 546, 56 N.E. 864 (Dikeman), that strict compliance with the terms of a lease is required in the exercise of an option. Upon finding Dikeman “on point” to the facts at bar, the trial court reluctantly held for defendants, adding that any deviation from Dikeman’s strict common law principles relating to lease options must originate from the appellate court.

Opinion

In arguing for reversal of the summary judgment order, plaintiff claims that the trial court misconstrued Dikeman and that Illinois law does embrace the equitable doctrine followed in other jurisdictions regarding lease renewal options. Further, plaintiff cites an impressive number of cases from other jurisdictions as support for its position that the trend of modern equity jurisprudence favors balancing of the respective hardships to lessors and lessees caused by the late exercise of renewal options in commercial leases. Because we agree with plaintiff that Dikeman does not preclude equitable mitigation of late renewal options, we need not look to the law in other jurisdictions for resolution of the issue at bar.

In Dikeman, tenants had a 10-year lease allowing them to remove coal from the lessor’s land. The lease contained an option to renew for an additional 10-year period, to be exercised in writing at least 20 days before the expiration of the original 10-year term. Through their own carelessness, the tenants failed to provide written notice until 13 days before the end of the 10-year term. The trial court denied tenants’ request for specific performance of the option to renew. The appellate court reversed and the supreme court reversed the appellate court. In arriving at its decision to deny equitable relief, the supreme court stated that, absent waiver or just excuse for noncompliance, right and justice usually require strict compliance with conditions precedent to the exercise of an option to renew a lease. Moreover, because the value of consideration given by the tenant for the option to renew compensated the lessor only for the value of the time the option was held open, the court found that the option granted to the tenant was “purely a privilege *** without any corresponding right or privilege of the lessor, and the only stipulation was that the right should be exercised at a certain time.” (Dikeman v. Sunday Creek Coal Co. (1900), 184 Ill. 546, 551.) Therefore, the court concluded, because lessor failed to comply with the time stipulation, and had not established waiver or just excuse, it lost any legal rights it had had under the lease.

As the foregoing discussion indicates, the Dikeman court recognized that allegations of “just excuse” may operate to invoke the equitable powers of the court. However, the plaintiff in Dikeman failed to establish such an excuse. Simply because the plaintiff failed to impress the court with the equities of the situation does not mean, as the trial court would have us believe in our case, that the supreme court ruled out equitable considerations in actions on lease renewal options. It is our opinion that Dikeman more accurately stands for the proposition that undue hardship to lessee must be established before equity will come to the aid of the negligent. Guidance for the degree of hardship necessary to invoke equitable considerations is found in Cordell v. Solomon (1924), 234 Ill. App. 430, and Linn Corp. v. La Salle National Bank (1981), 98 Ill. App. 3d 480, 424 N.E.2d 676.

In Cordell, tenant operated a grocery store and meat market on the leased premises. In addition to the standard lease provisions, tenant was permitted to make certain improvements on the building, including the construction of an addition and a loading platform. All such alternations, however, were to be made at tenant’s own expense and once made, became part of the realty and, thus, inured to the benefit of the lessor upon termination of the lease. The lease further provided that if the building addition were constructed prior to a specific date, tenant would be given the option to extend the terms of the lease for an additional five years. Said option was to be exercised by written notice no later-than January 1, 1924. In reliance upon the lease, tenant built the addition and made extensive improvements to the property within the specified period. In December 1922, approximately 15 months prior to the expiration of the original term, lessor sold the property, subject to the lease, to defendants. At the time of their purchase, defendants had received verbal notice from tenant that it intended to exercise the five-year renewal option for the period commencing May 1, 1924. Approximately four months before the option expired, tenant sent written notice to defendants confirming their decision to exercise the renewal option. The notice was mailed to defendants at the same address to which tenant had been mailing the rent checks. Six weeks after the option expired, tenant learned that defendants had never received the written notice to renew, and immediately hand-delivered a second written notice which defendants refused to recognize. Thereafter, defendants notified tenant that it must vacate the premises immediately. When tenant refused to do so, an action in forcible detainer commenced. Tenant then moved for a preliminary injunction pending a hearing on the merits, which the trial court granted. Defendants appealed.

In affirming the judgment of the trial court, the reviewing court took notice of the special circumstances present in the situation which warranted the granting of equitable relief. In addition to tenant’s expenditures for improvements that would inure to the benefit of lessor, the court noted that lessees had not only mailed timely written notice of their election to exercise the renewal option, but also, upon learning of defendant’s failure to receive the first notice, had immediately hand-delivered a second notice.

Similar special circumstances were present before the court in Linn Corp. v. La Salle National Bank (1981), 98 Ill. App. 3d 480, 424 N.E.2d 676 (Linn Corp.). In Linn Corp., tenants entered into a two-year/three-month lease of property owned by defendants for the operation of a restaurant. Under the lease, plaintiffs were to make substantial improvements to the premises which would become the property of lessor at the expiration of the lease term or any renewal thereof. The lease further provided for two five-year options to renew which were to be exercised by written notice not less than one year prior to the expiration of the current term. In compliance with the terms of the lease, tenants spent approximately $200,000 for property improvements during the original term. Tenants verbally notified defendants several times that it intended to exercise the five-year option, however, written notice was never given. As a result of tenants’ failure to provide written notice, defendants notified tenants that their lease would expire at the end of the original term. When tenants’ subsequent attempt to give written notice was rejected by defendants, tenants filed an action for specific performance of the renewal option, which was dismissed upon defendant’s motion.

On appeal, the reviewing court distinguished DiJceman from the facts before it and found that the special circumstances surrounding the lease warranted exercise of the court’s equitable powers to excuse strict compliance with the one-year notice provision. In particular, the Linn Corp. court noted that, unlike the situation in Diiceman where the option granted to .the tenant was purely a privilege, the renewal option in Linn Corp.’s lease could be construed to be consideration for the improvements made by tenant.

In the case at bar, plaintiff alleges that the conditions demanding equitable relief are so manifest that not to grant specific performance of the renewal option would be unconscionable. In particular, plaintiff claims that: (1) the delay in giving written notice was slight and was the result of “mere neglect,” not wilful or gross negligence; (2) the lessor suffered no prejudice by the slight delay; (3) the hardship to be suffered by plaintiff if the lease were terminated would be substantial. In support of its position, plaintiff urges this court to adopt the rationale of F.B. Fountain Co. v. Stein (1922), 97 Conn. 619, 118 A. 47, a leading case on the issue of renewal options.

In Fountain, plaintiff leased property for a term of five years commencing May 1, 1911, with four five-year renewal options which were to be exercised by written notice 30 days prior to the beginning of each renewal period. During the original term, plaintiff and its sub-lessees made costly improvements to the property. Plaintiff timely exercised the first renewal option, but forgot to exercise the second option within the prescribed time. As a result, lessor advised plaintiff that the lease would not be renewed and instituted a forcible entry and detainer action. Plaintiff then served lessor with a back dated written notice exercising its option. When lessor refused to accept the late notice, lessee sought an injunction ordering the lessor to renew the lease. The trial court denied injunctive relief. The appellate court remanded the case for a hearing of the evidence pertaining to the equitable considerations.

In our opinion, Fountain is analogous to Linn Corp. v. La Salle National Bank (1981), 98 Ill. App. 3d 480, 424 N.E.2d 676, in that both decisions turn on the presence of special circumstances which would result in undue hardship to lessee if the lease renewal option were strictly construed. Because of the similarity between the two cases, we find it unnecessary to further address Fountain, a case outside our jurisdiction, and, instead, focus our attention on Dikeman and Linn Corp., which, together, we find dispositive of the issue before us.

The legal analysis in both Dikeman and Linn Corp. builds from the same basic premise, i.e., a lessee has no right to equitable relief in a renewal option action unless it can establish waiver of the time provision or such hardship as will invoke the equitable powers of the court. In Dikeman, such hardship was not established. Thus, the renewal option was strictly construed as a matter of law. In Linn Corp., undue hardship was established. As a result, equitable relief was granted. In our opinion, a comparative analysis of both cases provides a gauge for measuring the degree of hardship necessary to invoke equitable relief.

Viewing the case at bar in light of both the Dikeman and Linn Corp. decisions, we conclude that plaintiff has not established the degree of special circumstances necessary to warrant equitable relief. Plaintiff’s allegations that, in reliance upon the renewal options in the lease, it spent “thousands of dollars” on maintenance, improvements, equipment, advertising and leases for adjacent property represent nothing more than normal business costs which could be alleged as losses by any lessee who has failed to exercise properly a lease option. Contrary to those situations present in Cordell and Linn Corp. which invoked equitable relief, the record reveals that none of the expenses incurred by plaintiff inured in any way to the benefit of the lessor, and, with the exception of maintenance costs, none were required under the lease. It is axiomatic that equitable relief is never justified by the mere fact that the tenant will suffer some sort of economic detriment. J.N.A. Realty Corp. v. Cross Bay Chelsea, Inc. (1977), 42 N.Y.2d 392, 397 N.Y.S.2d 958, 366 N.E.2d 1313.

Furthermore, although we disagree with the trial court’s strict interpretation of Dikeman, we concur with its finding that Dikeman is factually “on point” to the case at bar. As in Dikeman, plaintiff’s option provision was only a privilege, dependent upon the condition precedent of timely renewal, and did not present a corresponding right or privilege to lessor. Thus, when plaintiff failed through its own negligence to satisfy the condition precedent, plaintiff lost its legal right to the use of the property, as a matter of law. To relieve plaintiff of its negligent failure to exercise its option would be to upset established precedent, introduce instability in business transactions, and disregard commercial realities. J.N.A. Realty Corp. v. Cross Bay Chelsea, Inc. (1977), 42 N.Y.2d 392, 407, 397 N.Y.S.2d 958, 967, 366 N.E.2d 1313, 1318.

Regarding plaintiff’s claim that it had given verbal notice of renewal to defendants in 1975, we need only comment that it would be preposterous to expect defendants to have relied upon a statement made in the course of a general discussion four years prior to the expiration of the lease option. This is especially true when one considers that in that four-year period, the parties were engaged in continuous litigation regarding terms of the lease.

Further, regarding plaintiff's claim that defendants suffered no prejudice from the delay in renewing the lease, we note that it is not incumbent upon defendant to establish prejudice as a means to preclude equitable relief. Rather, it is plaintiff’s burden to establish the degree of special circumstances necessary to invoke the equitable powers of the court before any balancing of equities occurs.

In conclusion, we find that Illinois law does permit equitable mitigation of late renewal options provided that special circumstances rising to the level of undue hardship to lessee are established. Because plaintiff failed to establish such special circumstances in the case at bar, we hold that the circuit court properly granted defendants’ motion for summary judgment.

Affirmed.

SULLIVAN and LORENZ, JJ., concur.

      Scrap Corporation of America was subsequently dismissed as a party to this action.


author: JUSTICE McGLOON

text:
    SAWYER FRUIT AND VEGETABLE CO-OPERATIVE CORPORATION, Plaintiff-Appellant, v. LUMBERMENS MUTUAL CASUALTY COMPANY, Defendant-Appellee.
    First District (1st Division)
    No. 82 — 1955
    Opinion filed August 22, 1983.
    Beryl A. Birndorf, of Chicago (Robert M. Birndorf, of counsel), for appellant.
    Clausen, Miller, Gorman, Caffrey & Witous, P.C., of Chicago (James T. Ferrini, Gregory S. Smith, and Lisa D. Marco, of counsel), for appellee.
   JUSTICE McGLOON

delivered the opinion of the court:

Plaintiff Sawyer Fruit and Vegetable Co-operative Corporation (Sawyer) filed a declaratory judgment action seeking a determination that a policy issued by defendant Lumbermens Mutual Casualty Company (Lumbermens) provided coverage for damage to plaintiff’s refrigeration system. Defendant’s motion for summary judgment was granted and plaintiff appeals. On appeal, plaintiff contends that certain policy exclusions do not bar recovery of its claim.

We affirm.

Plaintiff’s complaint alleged the following facts. During the night of April 5 and early morning of April 6, 1979, a plywood covering to a ventilation panel located in a room in which compressors were mounted was dislodged during a storm. The compressors were part of plaintiff’s refrigeration system. A power failure also occurred between 3 a.m. and 7 a.m. that morning. As a result of these events, three compressors were exposed to snow and freezing temperatures and thereby damaged beyond repair. Plaintiff filed a claim with defendant. Defendant refused to pay on the ground that the damage from the occurrence was excluded from coverage under the terms of the policy.

Defendant relied on certain exclusion provisions of the policy in denying coverage and in defending the action filed by plaintiff. The provisions state:

“This policy does not apply: ***
4. Under coverages A and B to loss ***
■ (g) from an Accident caused directly or indirectly by wind including but not limited to cyclone, tornado or hurricane,
(i) from lack of power, light, heat, steam or refrigeration * * * ”

On appeal, plaintiff contends that the immediate and proximate cause of its loss was below freezing temperatures. Plaintiff therefore contends that the policy provided coverage for its loss because damage from freezing was not expressly excluded from coverage. In support of their interpretation of the policy, plaintiff cites Abady v. Hanover Fire Insurance Co. (4th Cir. 1959), 266 F.2d 362, and Williams v. Liberty Mutual Fire Insurance Co. (1956), 334 Mass. 499, 135 N.E.2d 910.

In Abady and Williams, wind dislodged coverings on roofs, thereby exposing pipes to freezing temperatures. Plaintiffs sought to recover under policies providing insurance for damage caused directly by windstorm. The courts interpreted the term “direct cause” as immediate cause of damage resulting from the force or effect of wind and found that defendants were not liable for damage to the pipes because such damage was not the direct result of the windstorm. However, these cases, unlike the case at bar, only involved the interpretation of the term “direct.” Here, the policy exclusions pertain to damage directly or indirectly caused by wind or to damage caused by lack of power, heat, light, refrigeration or steam. Thus, the applicability of Abady and Williams is very limited and the cases are not controlling on the issues presented in this appeal.

Construction of insurance policies present questions of law to be decided by the court. (Illinois Casualty Co. v. Peters (1979), 73 Ill. App. 3d 33, 391 N.E.2d 547; Rivota v. Kaplan (1977), 49 Ill. App. 3d 910, 364 N.E.2d 337.) In interpreting insurance contracts, the entire document should be examined. (United States Fire Insurance Co. v. Schnackenberg (1981), 88 Ill. 2d 1, 429 N.E.2d 1203; Weiss v. Bitumi nous Casualty Corp. (1974), 59 Ill. 2d 165, 319 N.E.2d 491.) The language of the policy as well as the subject matter and purpose of the contract may be considered. Estes Co. v. Employers Mutual Casualty Co. (1979), 72 Ill. App. 3d 509, 391 N.E.2d 201, aff’d (1980), 79 Ill. 2d 228, 402 N.E.2d 613.

Here, plaintiff purchased boiler and machinery insurance. Such insurance is generally obtained to insure against losses caused by explosion, rupture or similar damage to the machinery and consequential damage to surrounding property. (J. Long & D. Gregg, Property and Liability Insurance Handbook 619, 622 (1965).) The condition stated in the policy involved in this case that plaintiff was to purchase multiperil insurance also indicated the limited purpose of the insurance. The policy did not insure plaintiff against all damage to its refrigeration system, and the list of exclusions conclusively determines this fact. We further find that the cause of plaintiff’s loss falls under the specified exclusions in the policy. Plaintiff stated that wind, loss of power, and the consequent loss of heat caused the damage to its compressors. The contract plainly, clearly, and unambiguously states that loss caused indirectly by wind or from loss of power and heat is not covered by the policy. When plaintiff contracted to exclude damage from loss of power and heat, we may reasonably assume that they also contracted with reference to what would follow if power and heat were lost in freezing weather. We cannot ignore the language in and the purpose of the policy and impose liability for a loss not contemplated by the parties. (Western States Mutual Insurance Co. v. Verucchi (1976), 38 Ill. App. 3d 266, 347 N.E.2d 63.) Also, because no genuine issue of material fact has been presented, we find the trial court did not err in granting defendant’s motion for summary judgment. Coomer v. Chicago & North Western Transportation Co. (1980), 91 Ill. App. 3d 17, 414 N.E.2d 865.

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

Judgment affirmed.

GOLDBERG and CAMPBELL, JJ., concur.


author: JUSTICE LORENZ

text:
    CHEF’S NO. 4, INC., d/b/a Beef N’ Burger, Plaintiff-Appellant, v. THE CITY OF CHICAGO et al., Defendants-Appellees.
    First District (5th Division)
    No. 82 — 2339
    Opinion filed August 26, 1983.
    Terrence R Le Fevour, of Chicago, for appellant.
    James D. Montgomery, Acting Corporation Counsel, of Chicago (Jerome A. Siegan and Philip L. Bronstein, Assistant Corporation Counsel, of counsel), for appellees.
   JUSTICE LORENZ

delivered the opinion of the court:

Plaintiff, Chef’s No. 4, Inc., an Illinois corporation doing business as Beef N’ Burger, filed a complaint in inverse condemnation seeking a declaratory judgment, and an injunction against defendants, the City of Chicago (the City), and Chicago Title & Trust Company (CT&T), as trustee. Plaintiff sought, inter alia, just compensation for the taking of its trade fixtures located on property formerly owned by CT&T as trustee and acquired by the City by eminent domain. The trial court granted defendants’ motions to dismiss the complaint and plaintiff appealed.

The sole issue presented for review is whether the trial court erred in granting defendants’ motion to dismiss plaintiff’s complaint for failure to state a cause of action.

The following facts are pertinent to our decision.

CT&T, as trustee, owned property located at the southwest corner of State and Van Burén Streets in Chicago, Illinois, which consisted of a parking garage and four street-level stores. In 1966, the subject property was leased to Erwin Horwitz, who in turn assigned his leasehold interest to State-Van Burén Garage Corporation (State-Van Burén) in 1968.

Article XII of the original lease between CT&T and Erwin Horwitz provided that the lessee could sell, convey, or assign its interest in the lease upon satisfaction of five preconditions: (1) the assignee would pay all real estate taxes; (2) the assignment would be delivered to CT&T; (3) the assignment would be recorded with the recorder of deeds of Cook County, Illinois; (4) the assignee would expressly agree to assume and be bound by the original lease, and (5) the assignment required prior written approval from CT&T. Article XII further provided that: “nothing herein contained shall be construed to impair the right of Lessee to sublet the leased premises *** provided only that all such sublease agreements shall be made subject to the terms and provisions of this lease. Lessor agrees that should the Lessee default in any of the covenants and agreements herein contained to be kept, observed, and performed by Lessee, Lessor will recognize and honor any and all subleases theretofore made by Lessee with the prior written approval of Lessor.”

In October 1972, State-Van Burén, as sublessor, leased one of the four stores to plaintiff, the sublessee, without the prior written consent of CT&T, the lessor.

On December 27, 1977, a rider was attached to the sublease which provided, inter alia, for a 10-year extension of the sublease from January 1, 1982, until December 31, 1991. A condemnation clause contained therein further provided that “the lease term shall cease as of the day possession shall be taken by such public authority ***. Lessee shall be entitled and shall have the right to pursue its remedies against such public authority for loss of revenues and/or its leasehold interest.”

Thereafter, plaintiff spent over $50,000 on leasehold improvements including ovens, counters, refrigerators, air conditioning units and duct work, lighting fixtures and signs. On the valuation date of the subsequent condemnation suit these leasehold improvements had a market value of approximately $35,000. Plaintiff continued to pay rent to State-Van Burén until June 1981.

On November 22, 1976, the city of Chicago filed a petition to condemn the subject property, naming CT&T and plaintiff among the party defendants. Plaintiff, however, was not served with summons, did not participate in the ensuing condemnation litigation, and initially learned of the condemnation in June of 1981 when the City demanded possession of the subject property.

Over three years after the institution of this condemnation suit, CT&T, as lessor, filed a forcible entry and detainer action on January 11, 1980, against State-Van Burén, as lessee, for nonpayment of rent. Plaintiff was not served in this action.

By an agreed order entered on December 19, 1980, the trial court held that State-Van Burén was in default and no longer entitled to the possession of the property. The order further recited that, by stipulation of the parties, “State-Van Buren Garage Corp., its successors and assigns, [agree to] completely waive and release any rights or interest it may have, if any, in the condemnation award in the City of Chicago v. Chicago Title & Trust Co., etc., et al. ***.”

On May 1, 1981, an order was entered in the condemnation suit setting the sum of $1,050,000 as full compensation to the owner or owners of and party or parties interested in the subject property. This award was deposited with the Treasurer of Cook County on May 17, 1981.

Thereafter, CT&T filed a petition for withdrawal of the entire award. On June 2, 1981, the trial court, finding that CT&T, as trustee, was owner of the subject property, and that no one else had any rights to the award, directed the treasurer to pay the full award to CT&T.

In June 1981, the City demanded possession of the property from plaintiff. Plaintiff subsequently filed a complaint in inverse condemnation for a declaratory judgment and an injunction against CT&T and the City on August 3,1981.

Various pleadings followed, and both defendants filed motions to dismiss. CT&T’s motion to dismiss alleged that plaintiff had no interest in the property or the award because (1) a sublease was not permitted under the top lease between CT&T and State-Van Burén, and (2) the order in the forcible action operated to terminate any interest plaintiff may have had in the property. The City based its motion to dismiss primarily upon its argument that plaintiff was estopped by reason of the finding in the order of withdrawal. Following a hearing, the trial court granted both motions to dismiss, and this appeal follows.

Opinion

The sole issue on review is whether the trial court erred in granting defendants’ motions to dismiss plaintiff’s complaint for failure to state a cause of action in inverse condemnation.

As a general rule, in determining the legal sufficiency of a complaint on a motion to dismiss, all well-pleaded facts are to be taken as true (Fitzgerald v. Chicago Title & Trust Co. (1978), 72 Ill. 2d 179, 380 N.E.2d 790) and a reviewing court must determine whether the allegations of the complaint, when interpreted in the light most favorable to plaintiff, are sufficient to set forth a cause of action upon which relief may be granted. (Burks v. Madyun (1982), 105 Ill. App. 3d 917, 435 N.E.2d 185.) Accordingly, we turn first to the contention of whether the complaint states a cause of action sufficient to withstand the motion.

As a preliminary matter to a consideration of plaintiffs’ case on the merits, however, we must necessarily address the issue of the court’s jurisdiction where notice and service of process were not effected upon plaintiff as a necessary party to both the forcible action and the condemnation proceeding. With respect to the condemnation suit, section 7 — 102 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 7 — 102) provides in pertinent part that “Where the right to take private property for public use, without the owner’s consent [is conferred upon a municipal authority] *** the party authorized to take *** the property so required *** may apply to the circuit court *** by filing with the clerk a complaint, setting forth, [inter alia] *** the names of all persons interested therein as owners or otherwise as appearing of record, if known, or if not known stating that fact and praying such court to cause the compensation to be paid to the owner to be assessed.”

Since we have previously held that tenants under a valid lease are “owners” in the constitutional sense and entitled to compensation in a condemnation proceeding (Illinois Central R.R. Co. v. Ferrell (1903), 108 Ill. App. 659), it is clear that a tenant in possession is a necessary party in a condemnation proceeding (4 Nichols, Eminent Domain sec. 12.42 (3d ed. 1980)), and, accordingly, a condemnation suit is void as to any necessary party in the absence of proper service by either service of process or by publication. (See Trustees of Schools v. Steele (1964) , 54 Ill. App. 2d 337, 203 N.E.2d 605, rev’d on other grounds (1965) , 33 Ill. 2d 575; St. Louis & Cairo R.R. Co. v. Postal Telegraph Co. (1898), 173 Ill. 508, 51 N.E. 382.) We therefore find that the judgment in the condemnation suit is void as to plaintiff in the present case.

We reach a similar result in our review of the judgment in the forcible action. In Illinois, it is clear that a landlord who has recovered a judgment in an action of unlawful detainer against a tenant may not dispossess a subtenant previously in possession who was neither made a party nor entered pendente lite. Marx v. Marco (1947), 331 Ill. App. 239, 73 N.E.2d 20.

Since an elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections (Greene v. Lindsey (1982), 456 U.S. 444, 72 L. Ed. 2d 249, 102 S. Ct. 1874) we find that plaintiff has been deprived of property without the due process of law as required by the fourteenth amendment.

In the absence of such notice, plaintiff was never afforded the opportunity to fully adjudicate its rights in either the forcible action or the condemnation proceeding. Hence, the judgments rendered therein are nugatory with respect to plaintiff.

We therefore hold that the trial court erred in granting defendants’ motions to dismiss without a full evidentiary hearing on the validity and the extent of plaintiff’s leasehold interest in the subject property. We note here that plaintiff’s complaint raises questions of fact concerning the validity of the sublease where the lessor accepted rent and/or had constructive knowledge of its presence on the premises in contravention of the sublease clause of article XII requiring prior written approval by the lessor.

Because of this conclusion, we find it unnecessary to examine the remaining issues raised by plaintiff. Accordingly, the judgment of the circuit court of Cook County is reversed and remanded for further proceedings consistent with the views expressed herein.

Reversed and remanded.

SULLIVAN and MEJDA, JJ., concur.


author: JUSTICE STAMOS

text:
    JAMES M. MURPHY, Plaintiff-Appellee, v. ROPPOLO-PRENDERGAST BUILDERS, INC., Defendant-Appellant.
    First District (2nd Division)
    No. 82 — 2882
    Opinion filed August 23, 1983.
    James B. O’Brien & Associates, Ltd., of Chicago, for appellant.

      Gerard C. Heldrich, Jr. & Associates, of Chicago (Gerard C. Heldrich, of counsel), for appellee.
   JUSTICE STAMOS

delivered the opinion of the court:

James M. Murphy brought this declaratory judgment action against Roppolo-Prendergast Builders, Inc. (Roppolo), seeking the return of his down payment made pursuant to a written agreement for the purchase of a condominium unit to be built by Roppolo. The trial court, after a hearing, granted Murphy’s motion for judgment on the pleadings. Roppolo filed a motion to vacate the judgment and sought leave to amend its original answer. The motion was denied and Roppolo appeals.

On October 7, 1978, plaintiff and defendant entered into a condominium purchase agreement whereby plaintiff agreed to purchase and defendant agreed to construct and sell a unit in a condominium development then under construction. Under the terms of this agreement, plaintiff agreed to pay $72,500 for the unit and deposited $7,250 with defendant as earnest money.

The contract provided that the sale and purchase was to be closed at the time designated by the seller in a written notice to the purchaser; that the unit was to be completed within a reasonable time; and that defendant was to be exempt from liability for delays in construction caused by conditions beyond defendant’s control. The contract also required that plaintiff notify defendant within a certain time of any inability on plaintiff’s part in obtaining mortgage financing, in order for plaintiff to be excused from performance.

On January 5, 1979, Northwest Federal Savings & Loan Association approved plaintiff’s application for a mortgage loan and committed itself to lend plaintiff $57,000 for 30 years at the rate required by the contract, on the condition that plaintiff deposit $570 and sign and return a copy of the commitment letter within 10 days.

On May 8, 1980, defendant notified plaintiff by mail that the closing would be held on May 16, 1980. On May 16, plaintiff hand delivered a letter to defendant’s attorney claiming that defendant had defaulted under the contract and that plaintiff was unable to obtain financing and consequently would not close. This letter also demanded the return of the $7,250 earnest money deposit.

Plaintiff filed a complaint for a declaratory judgment, seeking the return of his deposit on the grounds that plaintiff could no longer obtain mortgage financing at the required rate and that the contract' lacked a material term, i.e., a closing date.

Defendant’s answer denied that the lack of a closing date was a material term of the contract and neither admitted or denied plaintiff’s ability to obtain financing. Plaintiff then filed a motion for judgment on the pleadings and a memorandum in support thereof, arguing that the contract provided no time for performance and therefore must be performed within a reasonable time by defendant, and that 19 months is an unreasonable time. Defendant filed a response to plaintiff’s motion for judgment on the pleadings, arguing that a material issue of fact existed as to whether the condominium unit was completed within a reasonable time.

After reviewing the pleadings and hearing arguments, the trial court entered judgment for plaintiff and in so doing found that the lapse of time amounting to 19 months was unreasonable as a matter of law.

Defendant filed a motion to vacate the judgment order and sought leave to amend its answer to emphasize issues of fact, if the court deemed necessary. After a hearing, the trial court denied the motion. Defendant appeals.

Defendant first contends that the trial court improperly entered judgment on the pleadings because material issues of fact were presented.

It is well settled that a judgment on the pleadings is proper only if questions of law and not of fact exist after the pleadings have been filed. (Walker v. State Board of Elections (1976), 65 Ill. 2d 543, 552-53, 359 N.E.2d 113.) Where there are controverted questions of fact evident from an examination of the pleadings, the trier of fact must hear evidence to determine the correct facts and may not give judgment on the pleadings alone. Department of Mental Health v. Kendall (1973), 15 Ill. App. 3d 881, 886-87, 305 N.E.2d 389.

On review of an order granting judgment on the pleadings, the court must ascertain whether the trial court correctly determined that no genuine issue as to any material fact was presented by the pleadings. Upper Avenue National Bank v. First Arlington National Bank (1980), 81 Ill. App. 3d 208, 210, 400 N.E.2d 1105; see also Crane Paper Stock Co. v. Chicago & North Western Ry. Co. (1967), 86 Ill. App. 2d 90, 94-95, 230 N.E.2d 273.

In the instant case the complaint alleged that plaintiff entered into a contract with defendant for the purchase of a condominium to be built by defendant; that plaintiff deposited $7,250 as earnest money in accordance with the agreement; and that the contract was unenforceable because plaintiff was unable to obtain mortgage financing and because the contract lacked a material term. Defendant’s answer denied that the missing term, the closing date, was material and neither admitted or denied plaintiff’s ability to obtain mortgage financing.

Since the parties agreed that the contract failed to specify a date for closing, the trial court held that the law implies a reasonable time for performance and found that 19 months was unreasonable as a matter of law.

It is well settled in Illinois that where a contract is silent as to when performance will be completed, a reasonable time for performance will be implied, and that what is a reasonable time is a matter of proof under the circumstances and conditions of each particular case. J. J. Brown Co. v. J. L. Simmons Co. (1954), 2 Ill. App. 2d 132, 139-40, 118 N.E.2d 781.

In the instant case, the issue of what is a reasonable time is a question of fact, and the trial court’s finding of unreasonableness as a matter of law was improper under the circumstances.

Defendant also contends that a question of fact exists as to whether plaintiff was unable to obtain mortgage financing, but that this question became irrelevant as a result of plaintiff’s failure to comply with the provision in the contract which requires plaintiff to notify defendant within 20 days of plaintiff’s inability to obtain financing. The contract provides that plaintiff would have been released from his obligations, and would have been entitled to the return of his earnest money, if he had so notified defendant.

The question therefore arises as to whether plaintiff in fact notified defendant of his inability to obtain financing. Only after this issue is resolved can the question be reached of whether plaintiff was able to obtain financing or whether the contract provision rendered plaintiff’s ability to obtain financing irrelevant. The existence of these factual issues on the face of the pleadings should have precluded the trial court’s disposal of this matter by judgment on the pleadings.

Defendant seeks reversal on the additional ground that the trial court abused its discretion in not allowing defendant to amend its answer after the judgment on the pleadings had been entered. Defendant sought to amend its answer so as to address the issue of plaintiff’s failure to terminate the agreement prior to the closing notice, and to present arguments justifying defendant’s delay in completing the construction of the unit.

The decision of a trial judge as to whether to allow an amendment to the pleadings should not be disturbed on review absent an abuse of discretion. (Stevenson v. Maston (1969), 107 Ill. App. 2d 65, 70, 246 N.E.2d 38.) The test to be applied in determining whether the trial court has abused its discretion is to ask whether the trial court’s decision furthers the ends of justice. North Shore Marine, Inc. v. Engel (1980), 81 Ill. App. 3d 530, 533, 401 N.E.2d 269; see Pinelli v. Alpine Development Corp. (1979), 70 Ill. App. 3d 980, 1004, 388 N.E.2d 943.

In the instant case, the issue of the reasonableness of the delay was not raised by the complaint, but rather as the result of the trial court’s findings in ruling on the motion for judgment on the pleadings. As such, the issue was not addressed in defendant’s answer. Once this issue was raised, defendant continuously addressed it throughout the course of the hearings, and then sought leave to amend its answer in its motion to vacate. It is clear that once the trial court raised the new issue of the reasonableness of the delay and decided to dispose of the case on the pleadings, it should have permitted defendant to address this issue in its answer. Under the facts of the instant case, we cannot say that the trial court’s denial of defendant’s request to amend its answer, and its resolution of the case on the pleadings as then framed, furthered the ends of justice.

The judgment of the circuit court is reversed and the cause is remanded with directions to grant defendant’s request to amend its answer and for proceedings herein on the merits of the issues, as the pleadings raise issues of fact.

Reversed and remanded with directions.

DOWNING, P.J., and BERLIN, J., concur.


text:
    LAWRENCE BERNER, Plaintiff-Appellant, v. JOSEPH W. KIELNIK, Defendant-Appellee.
    First District (5th Division)
    No. 81 — 2659
    Opinion filed August 12, 1983.

      Arnold and Kadjan, of Chicago, for appellant.
    Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (Stanley J. Davidson, Dan L. Boho, and Richard B. Rogich, of counsel), for appellee.
   PRESIDING JUSTICE WILSON

delivered the opinion of the court:

This is an action to recover damages for personal injuries sustained by plaintiff in a collision involving plaintiff’s car and defendant’s van. The accident in question occurred at approximately 3:45 p.m. on March 20, 1977, at the intersection of Western Avenue and Roscoe Street in Chicago, Illinois. Western Avenue is a north-south street. Roscoe runs east and west. The traffic is controlled by automatic signals. The jury answered a special interrogatory and returned a verdict against plaintiff finding that defendant was not negligent. The trial court, thereupon entered judgment for defendant. Plaintiff appeals from the trial court’s judgment as well as the court’s order denying his post-trial motion for a judgment notwithstanding the verdict or, in the alternative, a new trial. The questions for review are: (1) whether the jury’s finding is against the manifest weight of the evidence; (2) whether defendant was negligent as a matter of law; and (3) whether defense counsel’s comments were improper. For the reasons hereinafter discussed, we affirm.

The record submitted on appeal is incomplete. The transcript of trial testimony begins with defendant’s testimony under cross-examination on the second day of trial. Defendant stated that he was traveling north on Western and that he was the first car at the intersection. The traffic light was red. The left turn arrow was not on. Defendant stopped at the red light. He stated that he first saw plaintiff’s car before he (defendant) reached the intersection when it was north of (approaching) the traffic device. Defendant estimated that plaintiff was traveling at 30 or 35 miles per hour. He said that he saw plaintiff’s car again when it was two car lengths away. Defendant saw his green left turn arrow go on and after a regulated amount of time, it went off. When his light turned green, defendant proceeded to make a right turn to go east on Roscoe Street. Plaintiff, who was traveling south on Western Avenue, had also entered the intersection to make a left turn onto Roscoe. Defendant testified that he attempted to maneuver his vehicle on an angle in order to avoid hitting plaintiff. At this point, the vehicles collided. Plaintiff’s car was hit on its passenger side.

Next to testify was Richard Buell, plaintiff’s friend who had attended an auction that day with plaintiff and who was driving his car from the auction to a tavern where they had planned to meet. Buell testified that he witnessed the accident. He stated that when plaintiff reached the intersection, the traffic light was red and the left turn arrow was not on. Plaintiff was the third car in the left-hand turn lane. Buell was two car lengths behind plaintiff. He said that when the traffic light turned green, the left turn arrow went on. He saw plaintiff proceed through the intersection. Plaintiff was hit when he made a left turn. Buell testified further that the two cars in front of plaintiff had safely made the turn. On cross-examination he stated that the traffic light was green for southbound traffic at the same time that the left turn arrow was green.

David O’Halleran, a traffic engineer who has been employed by the Chicago Bureau of Street Traffic for 13 years, explained how the traffic signals work. He stated that the green left turn arrow at this intersection would remain on for seven seconds. When the green arrow is on to make a left turn, the light for the traffic not turning left is red. He testified on cross-examination that northbound and southbound traffic simultaneously receive either a green light to proceed north or south or a green arrow for left turns. He said that a green light and a green arrow would not be on at the same time.

Plaintiff then testified that as he made his turn, he decelerated his speed to between 10 and 15 miles per hour. He explained that prior to the accident his medical history included stiffness in his neck but because the impact of the collision jolted his neck, he experienced very sharp pains and was advised by a doctor to wear a cervical collar. Plaintiff said that he still had problems with his neck although it was not as stiff and painful now as it had been shortly after the accident. On cross-examination, he acknowledged that he had testified that when he was 100 feet from the intersection he was traveling at 30 miles per hour and that the traffic light was red. When he was approximately 95 feet from the intersection he saw the green left turn arrow come on. Plaintiff decelerated his speed and made his turn. Plaintiff was further cross-examined about his injuries and medical treatment.

Next to testify was Doctor Eric Lake Fischer, who examined plaintiff four months after the accident. Fischer explained the procedure he used to conduct his examination, which included taking X rays and rotating and bending plaintiff’s neck. His diagnosis was that plaintiff had an arthritic condition and that his spine had been pushed forward as a result of trauma, which he said can be any form of force applied to the body. After explaining the types of medications that plaintiff had been taking prior to the accident, Fischer testified that these drugs would not affect a person’s ability to operate a car or to see and react to things while operating the car. Fischer further stated that an accident or trauma would aggravate a stiff area of the body. On cross-examination, Fischer testified that plaintiff told him that the pain in his neck developed over a period of time subsequent to the accident. Upon further questioning, Fischer stated that based on his examination and plaintiff’s previous medical records, plaintiff was presently unable to bend his neck to the same degree that he could before his accident. Fischer was unsure as to whether plaintiff had sustained any head injuries at any time prior to the time of this accident. Defense counsel pointed out, however, that plaintiff’s hospital chart showed that three years before the present accident, plaintiff had hit the left side of his face against the handlebar of a motorcycle. Fischer responded that whether there would be trauma to the neck in that instance would depend on the angle of the impact. On redirect and recross-examination, Fischer was questioned about plaintiff’s X rays and the condition of his spine before and after his accident. The record reveals that the trial was then continued until 1:45 p.m.; however, those proceedings apparently were not filed. Instead, the record continues with a discussion in chambers between counsel and the trial judge two days later concerning jury instructions.

Opinion

Initially, plaintiff contends that the jury’s finding is against the manifest weight of the evidence. This contention can be addressed summarily and in this regard, we find the court’s holding in Geleto v. Giglietti (1976), 40 Ill. App. 3d 226, 352 N.E.2d 1, persuasive of our decision. The court in Geleto determined that:

“[W]e need not consider the manifest weight question because the record filed on appeal does not contain the transcript of the morning session of the trial at which plaintiffs presented their case. When a transcript is incomplete, we are bound to presume that all of the evidence heard by the jury was sufficient to support the verdict.” (40 Ill. App. 3d 226, 228.)

The absence of a report of proceedings thus deprives a reviewing court of a basis for reaching issues whose merits depend on the omitted matters including, as in the instant case, questions of the sufficiency of the evidence presented at trial. (Rosenblatt v. Michigan Avenue National Bank (1979), 70 Ill. App. 3d 1039, 1042, 389 N.E.2d 182.) Because a complete record was not tendered, we must therefore presume that the omitted evidence supported the jury’s verdict. Although a reviewing court will indulge in every reasonable presumption favorable to the judgment or ruling appealed from, any doubt arising from the incompleteness of the record will be resolved against the appellant. (Sandberg v. American Machining Co. (1975), 31 Ill. App. 3d 449, 452, 334 N.E.2d 246.) Moreover, a court of review, in determining whether the verdict is against the manifest weight of evidence, must consider not only the verdict of the jury but the fact that the trial judge also saw and heard witnesses, heard arguments of counsel and then denied the plaintiff’s motion for a new trial. (Prignano v. Mastro (1965), 61 Ill. App. 2d 65, 74, 209 N.E.2d 12.) Accordingly, we find that plaintiff’s argument on this issue is without merit.

The absence of a complete record on appeal is also fatal to plaintiff’s second contention that defendant was negligent as a matter of law.

We note at the outset that when two vehicles approach or enter an intersection from differing roadways at approximately the same time, all drivers have a duty to maintain a proper lookout and to use every precaution to avoid a collision, regardless of who has the right of way. (Olson v. Ortiz (1978), 60 Ill. App. 3d 787, 789, 377 N.E.2d 350; Ferdinand v. Yellow Cab Co. (1976), 42 Ill. App. 3d 279, 284, 355 N.E.2d 547.) The question as to which driver has the right-of-way at an open intersection must be determined by the jury, particularly where considerations of speed and distance are involved and the evidence is conflicting. (Orlandi v. Caraway (1973), 9 Ill. App. 3d 628, 631, 293 N.E.2d 337; Pfister v. West (1964), 53 Ill. App. 2d 305, 310, 203 N.E.2d 35.) It is also the jury’s function to determine whether a driver kept a proper lookout for through traffic (Moss v. Wagner (1963), 27 Ill. 2d 551, 555, 190 N.E.2d 305), whether he exercised reasonable care and whether his failure to do so proximately caused the other driver’s injury. (Lode v. Mercanio (1979), 77 Ill. App. 3d 150, 154, 395 N.E.2d 1014.) Generally, contributory negligence is a question of fact for the jury. (Orlandi v. Caraway (1973), 9 Ill. App. 3d 628, 631, 293 N.E.2d 337.) It is well-established, however, that the trial court should enter a directed verdict or a judgment notwithstanding the verdict in those cases in which all the evidence, when viewed in its aspect most favorable to the nonmovant, so overwhelmingly favors the 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.) In making this determination, the court may not substitute its judgment for that of the jury as to the credibility of witnesses nor may the court determine the preponderance of the evidence. (Roedl v. Lane (1976), 41 Ill. App. 3d 1062, 1065, 355 N.E.2d 354.) Contributory negligence thus becomes a question of law only when all reasonable minds would agree that based upon the evidence and the reasonable inferences drawn therefrom in the light most favorable to the nonmovant, judgment in the nonmovant’s favor would not be permitted to stand. Duffek v. Vanderhei (1980), 81 Ill. App. 3d 1078,1085, 401 N.E.2d 1145.

Applying the above to the case at bar, our review of the testimony at trial reveals patently conflicting testimony regarding the cause of the accident. Plaintiff acknowledged on cross-examination that when he was 100 feet from the intersection he was traveling at 30 miles per hour:

“Q: Mr. Berner, this morning, you’re telling us that you were about a hundred feet from the intersection, you saw the light change and you were going 30 miles an hour, is that correct?
A: Could you repeat that, please?
Q: Yes, didn’t you tell us just a little bit ago when we started the questioning this morning that you were going 25 to 30 miles an hour when you were about a hundred feet from the intersection when you saw the light change and the arrow come on?
A: Yes.”

However, plaintiff then agreed that he had also previously testified that he was traveling at 15 miles per hour:

“Q: And yesterday you testified, did you not, that when you were a hundred feet from the intersection you saw the red light; when you were 95 feet from the intersection you saw the green arrow come on and from the point in time that you were traveling 15 miles an hour decelerating in your own words down to 10 miles an hour at the time you got to the point of the intersection; and you said at that time, did you not, that you had your foot off the gas and brake and went into the turn, at which point your speed was about 8 to 9 miles an hour, wasn’t that your testimony yesterday?
A: Yes, it was.”

Plaintiff stated under further cross-examination that his speed was 30 miles per hour.

The discrepancies in plaintiff’s testimony were highlighted when he was then impeached with his testimony from an earlier deposition. Counsel read from plaintiff’s deposition and queried whether he had stated in his deposition that he could have been traveling at 15, 14, 10 or five miles per hour. Plaintiff responded that he had in fact answered in that manner. The record further reveals discrepancies in the testimony of plaintiff’s eyewitness, Richard Buell. Immediately before the accident, Buell stated that plaintiff’s car was also stationary, waiting to make a left turn. He testified that when the left turn arrow came on, the color of the traffic light would be green. Buell’s testimony was contradicted, however, when plaintiff’s next witness, David O’Halleran of the Chicago Bureau of Street Traffic, testified under cross-examination that a green arrow and a green light are never on simultaneously for the southern flow of traffic, which is the direction in which plaintiff was proceeding.

Clearly, this testimony raises the question of plaintiff’s negligence. It could also easily have adversely affected plaintiff’s theory of how the collision occurred and it could have damaged the credibility of plaintiff’s witnesses. Because the testimony placed plaintiff’s negligence in issue, it was a matter to be decided by the trier of fact. (Douglas v. Chicago Transit Authority (1972), 3 Ill. App. 3d 318, 321, 279 N.E.2d 44.) The record (albeit incomplete as it stands) substantially presents conflicting testimony regarding the events leading up to the collision. We therefore disagree with plaintiff’s contention that defendant was negligent as a matter of law. Questions on which reasonable men could arrive at different results should never be determined as a matter of law. (Prignano v. Mastro (1965), 61 Ill. App. 2d 65, 75, 209 N.E.2d 12.) We therefore hold that the resolution of this case was properly submitted to the jury and that its verdict was correct. Moreover, we cannot say that when the evidence is viewed most favorably to defendant it so overwhelmingly favors the plaintiff that no contrary verdict could ever stand. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504.) The evidence favorable to defendant indicates that plaintiff attempted to make a left turn after his green arrow had gone off and after defendant had proceeded to make a right turn from his lane of traffic onto Roscoe Street. Since a verdict in favor of defendant could stand, the trial court’s denial of plaintiff’s motion for a judgment notwithstanding the verdict was proper and in accordance with the Pedrick standard set forth above.

Plaintiff argues further that defendant made a judicial admission of negligence when he stated that he proceeded into the intersection after he saw plaintiffs car. Defendant testified under cross-examination that he first saw plaintiff’s blue Datsun automobile as it was approaching the traffic light and again when plaintiff was going through the intersection. In our opinion, however, this testimony is not an admission. The record reveals that defendant stated that he saw that the traffic light was red, that the left turn arrow came on and then the light turned green. He saw plaintiff’s car when plaintiff made a left turn. It is plausible that based on this testimony, plaintiff attempted to turn after his green arrow went off and when the traffic light was green. This could very well have been at or about the same time that defendant proceeded into the intersection. As we have previously explained, testimony regarding plaintiff’s speed was conflicting. Moreover, because the trial record does not include defendant’s testimony on the first day of trial nor does it include the testimony of defendant’s eyewitness, Tom Barber, we cannot say that defendant made a judicial admission.

The third issue raised on appeal is the alleged impropriety of defense counsel’s comments when, during cross-examination, he attempted to read to plaintiff a portion of his complaint which was filed eight years ago following a car accident plaintiff was involved in. We disagree with plaintiff’s contention that this colloquy constituted prejudicial error. After the trial judge admonished counsel from reading the complaint, counsel’s remarks were apparently directed to the judge in an effort to explain why he sought to question plaintiff about the injuries he allegedly had sustained. The court explained in the presence of the jury that the injuries complained of were general allegations that are contained in a form book. The jury was thereby apprised of the uniform, standard and routine language in a complaint for personal injuries. Because there was extensive testimony regarding plaintiff’s medical history as well as how the collision may have aggravated the stiffness in his neck, we fail to see how the interchange between counsel and the trial judge prejudiced the jury in its consideration of whether plaintiff sustained compensable injuries.

Accordingly, for the aforementioned reasons, the trial court’s judgment is affirmed.

Affirmed.

LORENZ and MEJDA, JJ., concur.

      A green arrow permits traffic to make an uninterrupted left turn, while a green light allows traffic to proceed forward. As will be further explained, the traffic lights for both north and southbound traffic at the intersection of Western Avenue and Roscoe Street operate simultaneously.