text:
    ANNA SZARAT, Plaintiff-Appellant, v. THE CITY OF CHICAGO, Defendant-Appellee.
    First District (5th Division)
    No. 82 — 1777
    Opinion filed September 9, 1983.
    Frank M. Bonifacio and Lawrence T. Stanner, both of Madigan, Stanner, Kahn, Bonifacic & Getzendanner, of Chicago, for appellant.
    Stanley Garber, Corporation Counsel, of Chicago (Jerome A. Siegan and Cheryl L. Smalling, Assistant Corporation Counsel, of counsel), for appellee.
   PRESIDING JUSTICE WILSON

delivered the opinion of the court:

Plaintiff brought suit against the city of Chicago for injuries suffered from a fall on a city sidewalk. The jury found for plaintiff and against defendant on the issue of liability, assessing the total amount of damages suffered by plaintiff as a proximate result of the occurrence to be $20,000, then reduced that amount to $5,000 actual recoverable damages pursuant to a finding that plaintiff was 75% contributorily negligent. Plaintiff appeals the award of damages, contending that: (1) the trial court erred in denying plaintiff’s motion for a directed verdict on the issue of contributory negligence; (2) assuming arguendo that the issue of contributory negligence was properly submitted to the jury, the jury’s finding that plaintiff was 75% contributorily negligent was against the manifest weight of the evidence; (3) the trial court erred in submitting erroneous and confusing jury instructions on the issue of comparative negligence; and (4) defendant’s reference during closing argument to a nonappearing occurrence witness was improper and prejudicial to plaintiff. For the following reasons, we reverse the judgment of the trial court as to plaintiff’s contributory negligence and remand the cause with directions that the trial court enter judgment in the full amount of the jury’s award of damages.

On April 7, 1980, plaintiff refiled her negligence action against the city of Chicago which had been previously dismissed without prejudice. Thereafter, on December 1, 1981, pursuant to the Illinois supreme court’s adoption of the comparative negligence doctrine (Alvis v. Ribar (1981), 85 Ill. 2d 1, 421 N.E.2d 886), defendant filed the following “affirmative defenses,” alleging plaintiff’s contributory negligence:

(a) Plaintiff carelessly and negligently failed to look when she should have looked and seen that which was within her range of vision;

(b) Plaintiff carelessly and negligently walked upon an area which she should have known, in the exercise of due care, would cause her some danger;

(c) Plaintiff carelessly and negligently walked upon an area which she knew or should have known, in the exercise of due care, presented some danger to her when she could have used another area which presented no danger to a reasonably prudent person;

(d) Plaintiff carelessly and negligently failed to avoid the area which she, in the exercise of due care, should have avoided;

(e) Plaintiff carelessly and negligently failed to anticipate a danger to herself when she knew or should have known, in the exercise of due care, that a danger existed.

At trial, plaintiff, age 72, testified that on February 11, 1972, approximately 2:30 p.m., she and a neighbor, Albina Bavasik, were walking to a nearby grocery store in Chicago when plaintiff’s “right foot got caught in the sidewalk” in front of 6608 South Kolin, causing her to fall face down on the sidewalk and injure her right shoulder. Bavasik and two neighborhood girls helped plaintiff to her feet and assisted her in walking back to her house. Plaintiff’s son then drove her to the hospital.

Plaintiff described the day of the accident as sunny and bright. Although there was approximately an inch of snow over the ground from the previous night’s snowfall, the ground was not slippery or icy. She was wearing a winter coat and rubber boots with low heels.

When shown photographs taken by her husband of the scene of the accident, plaintiff stated that they accurately portrayed the condition of the sidewalk on the day that she fell. Plaintiff thought that her husband took the photographs either the night of the accident or the next day. However, she was not sure because she had been in the hospital for 10 days following the accident and had not gone with him. She did not recall how he knew exactly where the accident had occurred. After being released from the hospital, plaintiff drove with her husband to the scene of the accident.

On cross-examination, plaintiff stated that although she has lived at 6733 South Kolin for approximately 32 years, she had never walked on the west side of Kolin, where the defective sidewalk was located, until the day of the accident. At the time of her fall, she was looking ahead, walking slowly, and talking with her neighbor. Plaintiff described the sidewalk defect as an elevation between slabs which at the time was obscured by the snow.

Plaintiff’s husband, Henry Szarat, testified that although he had not witnessed the accident, he obtained the address of the occurrence from a police report at the hospital and went to the scene immediately upon leaving the hospital on the night of the occurrence. Szarat identified the photographs he had taken of the sidewalk and the building at 6608 South Kolin, stating that he had taken the photographs “a couple of months later,” and that, except for. the lack of snow in the photographs, they accurately portrayed the condition of the sidewalk as it was on the night of the accident.

On cross-examination, Szarat testified that when he inspected the scene of the accident on the night of the occurrence, there was a light dusting of snow on the sidewalk. The temperature was in the 30’s and the snow was melting. Szarat further stated that the sidewalk was sloped approximately 21k inches, but had no holes.

Next, Jeanne Benz, plaintiff’s neighbor, testified as a condition witness on plaintiff’s behalf. Benz did not know plaintiff, nor had she witnessed the accident. However, Benz was able to identify the photographs taken by plaintiff’s husband of the accident scene as accurately portraying the condition of the sidewalk at the time of the accident. Further, Benz stated that the sidewalk had been in that condition since the late 60’s.

At the close of plaintiff’s evidence, defendant moved for a directed verdict which the court denied. Thereafter, without putting on any witnesses or presenting evidence of any kind, defendant rested its case. Plaintiff then moved for a directed verdict on the issue of contributory negligence, stating:

“Defendant has rested. He has put on no evidence whatsoever as to possible contributory negligence. He has not made it an issue before this Court or before the jury, and even on the basis of circumstantial evidence of fail [sic] to believe the plaintiff.
The only testimony we have here is it was a defect in the sidewalk covered by snow which the plaintiff could not see. The issue of contributory negligence has not been raised. It is not before the Court and at this time, I believe the plaintiff is entitled to a directed finding on the issue of contributory negligence.”

In response, defendant argued that: (1) plaintiff did not know what caused her to fall because the sidewalk was covered with snow and there was no opportunity for her to see underneath the snow; and (2) in her original notice, plaintiff stated that she fell into a hole, then later altered that statement to indicate that she had tripped over an uneven sidewalk. At this point, the trial court interrupted defense counsel and stated:

“Well, before you get any further, I find that there is sufficient evidence to go to the jury with respect to whether or not the plaintiff was free from contributory negligence so the motion for directed verdict with respect to that is denied.”

Thereafter, a discussion regarding jury instructions commenced in chambers, after which closing arguments ensued. Subsequently, the jury returned with its verdict for plaintiff and against defendant on the issue of liability, assessing the total amount of damages at $20,000, then reducing that amount to $5,000 as a result of its finding that plaintiff was contributorily negligent. Upon denial of all post-trial relief, plaintiff filed her timely appeal on the issue of damages.

Opinion

We shall first address plaintiff’s contention that she was entitled to a directed verdict on the issue of her contributory negligence on the ground that no evidence whatsoever was presented at trial tending to prove that plaintiff was in any way negligent.

It is well established in Illinois that verdicts are to be directed and judgments n.o.v. entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on the evidence could ever stand. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504.) Thus, in passing on the propriety of a directed verdict for a plaintiff, as in the case at bar, courts of review must consider the defendant’s evidence in its most favorable light together with all the inferences in its favor which can be legitimately drawn therefrom. (Block v. Michael Reese Hospital & Medical Center (1981), 93 Ill. App. 3d 578, 580, 417 N.E.2d 724, 726.) However, it is proper to direct a verdict for plaintiff at the close of all evidence when the plaintiff has made a case and there is no evidence contradicting or tending to contradict plaintiff’s evidence on that issue. Sughero v. Jewel Tea Co. (1966), 66 Ill. App. 2d 353, 360, 214 N.E.2d 512, aff'd (1967), 37 Ill. 2d 240, 226 N.E.2d 28.

In the case at bar, defendant originally alleged five acts of negligence committed by plaintiff as grounds for diminution of damages under the comparative negligence doctrine. Upon plaintiff’s motion, the trial court rejected four of the five allegations on the ground that no evidence regarding those four had been introduced. Thus, only the following allegation of contributory negligence remained to be considered by the jury: “[plaintiff cjarelessly and negligently failed to look when she should have looked and seen that which was within her vision.” Thus, in analyzing the evidence for a determination as to whether a directed verdict should have been granted on the question of contributory negligence, we need only address ourselves to that which concerns plaintiff’s failure to look.

Upon review of the record, it appears that plaintiff’s failure to look was never even a relevant issue in this case because both parties agree that even if she had looked, plaintiff could not have seen the defect because it was obscured by snow. For example, during the jury instructions conference, defendant admitted that plaintiff had no opportunity to see the defect in the sidewalk. To wit, defendant argued:

“Well, the statement of the plaintiff herself indicates that she didn’t know what caused her to fall. All she knew was that she fell on the sidewalk. She never saw the sidewalk. She only saw snow. The only defect she was aware of is the one that her husband pointed out to her after she came out of the hospital.
She admitted there was over an inch of snow on the sidewalk, covering the sidewalk so that there was no opportunity for her to see what was underneath that.”

We conclude that defendant’s acquiescence to plaintiff’s testimony coupled with defendant’s express admission during oral argument that no evidence of plaintiff’s contributory negligence was presented at trial so overwhelmingly favors plaintiff’s motion for a directed verdict on the issue of contributory negligence that no contrary verdict could reasonably stand. Therefore, we find that the trial court erred in denying plaintiff’s motion for a directed verdict on the issue of contributory negligence.

Accordingly, we note that the discrepancies in testimony which defendant raised in its brief refer solely to the question of liability, an issue not raised on appeal. Defendant’s confusion of the issues is evidenced by its statement that “[b]ecause the evidence in this case was conflicting, a directed verdict was not warranted.” It is clear that there was no evidence presented as to plaintiff’s contributory negligence.

Our decision that the trial court erred in not directing a verdict in favor of plaintiff on the issue of her contributory negligence obviates the need to discuss plaintiff’s alternative argument that the jury’s finding that plaintiff was 75% contributorily negligent was against the manifest weight of the evidence or her argument that the court submitted erroneous and misleading jury instructions on the issue of comparative negligence. Further, because plaintiff’s contention regarding prejudicial comments made during defendant’s closing argument concerns only the question of liability, which is not at issue on this appeal, we purposely refrain from addressing that argument on the ground that it is irrelevant.

For the reasons stated, we reverse the judgment of the circuit court of Cook County as to plaintiff’s contributory negligence and remand with directions that the trial court enter judgment in the full amount of the jury’s award of damages.

Reversed and remanded with directions.

LORENZ and SULLIVAN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE JIGANTI

license: Public Domain

text:
    ERLENE MORGAN, Plaintiff-Appellant, v. DALTON MANAGEMENT COMPANY, Defendant-Appellee (David Hunter, Defendant).
    First District (4th Division)
    No. 82 — 2878
    Opinion filed September 8, 1983.
    William D. Maddux & Associates, of Chicago (Bruce M. Lane, of counsel), for appellant.
    Jacobs, Williams and Montgomery, Ltd., of Chicago (Barry L. Kroll, Lloyd E. Williams, Jr., and Edward J. Murphy, of counsel), for appellee.
   JUSTICE JIGANTI

delivered the opinion of the court:

This action requires the court to determine whether a landlord owes a duty to his tenant to prevent other tenants from tortiously injuring her in common areas of an apartment building. The plaintiff, Erlene Morgan, brought suit for personal injuries and permanent disfigurement against her landlord, Dalton Management Company, and her assailant, David Hunter. The circuit court dismissed the count of the plaintiff’s complaint pertaining to Dalton because it found that no legal duty flowed from Dalton to the plaintiff to prevent Hunter from harming the plaintiff. The plaintiff now appeals from the trial court’s dismissal of the count of her complaint relating to Dalton. Dalton is the only defendant who is a party to this appeal.

Both the plaintiff and Hunter were tenants in the same apartment building. The building was managed and maintained by the defendant Dalton. Another individual named Tony McClerty lived with Hunter and apparently was a nontenant who had not signed a lease with Dalton. In September 1979, McClerty kicked in the locked door of the plaintiff’s apartment. The plaintiff reported this incident to Dalton and to the police. This incident between McClerty and the plaintiff is the only altercation which occurred between the two individuals. Hunter twice threatened to harm the plaintiff if she did not avoid Mc-Clerty. The record is void of any reference as to where these threats took place. The plaintiff reported the two incidents to a maintenance engineer who was employed by the defendant and who was stationed in the apartment building. During neither threatening incident did Hunter attempt to harm the plaintiff on her property. On October 31, 1979, Hunter threw acid at the plaintiff while they were both riding in an elevator in the apartment building. The plaintiff suffered personal injuries and disfigurement.

Clause 8 of the plaintiff’s lease with Dalton provides:

“8. TENANT’S USE OF APARTMENT. The Apartment shall be occupied solely, for residential purposes by Tenant, those other persons specifically listed in the Application for this Lease, and any children which may be born to or legally adopted by Tenant. Unless otherwise agreed in writing, guests of Tenant may occupy the Apartment in reasonable numbers for no more than three weeks each during each year of the Term hereof. Neither Tenant nor any of these persons shall perform nor permit any practice that may damage the reputation of or otherwise be injurious to the Building or neighborhood or be disturbing to other tenants, be illegal, or increase the rate of insurance on the Building.”

On appeal, the plaintiff raises three arguments in support of her contention that Dalton owed a legal duty to her to prevent Hunter from harming her. First, the plaintiff maintains that such a duty arose because Hunter and McClerty violated the lease agreement and therefore, her injury was causally connected to the apartment building. Second, the plaintiff argues that, because the lease disclosed a voluntary undertaking by Dalton to preclude tenants from disturbing each other, Dalton negligently performed its affirmative undertaking by failing to prevent the plaintiff’s injuries. In support of her first two arguments, the plaintiff contends that Dalton had notice of Hunter’s prior threats and of the door kicking incident perpetrated by Mc-Clerty; that the attack upon the plaintiff in a common area of the building was foreseeable; and that despite Dalton’s knowledge that the plaintiff feared for her safety, Dalton did nothing to prevent the attack on October 31. As a final and alternative argument, the plaintiff asks this court to find that the landlord-tenant relationship is a “special relationship,” such as that recognized in regard to such business relationships as carrier-passenger and inn-keeper-guest, in which the landlord would possess a more rigorous duty to protect his tenants.

Both the plaintiff and the defendant agree that in Illinois, a landlord generally has no duty to safeguard its tenants from the criminal acts of third persons. (Pippin v. Chicago Housing Authority (1979), 78 Ill. 2d 204, 399 N.E.2d 596; Cross v. Chicago Housing Authority (1979), 74 Ill. App. 3d 921, 393 N.E.2d 580, aff’d (1980), 82 Ill. 2d 313, 412 N.E.2d 472.) However, exceptions have been carved from the general rule and it is in the application of those exceptions that the plaintiff and the defendant part company. The plaintiff relies upon the duty that was imposed upon the landlord in Stribling v. Chicago Housing Authority (1975), 34 Ill. App. 3d 551, 340 N.E.2d 47. In Stribling, the apartments on either side of the plaintiffs’ apartment were vacant and unsecured. The plaintiffs were burglarized three times when third parties demolished a common wall between the plaintiffs’ apartment and one of the vacant apartments. The landlord knew of the condition of the vacant apartment after the first burglary but did nothing. The court found that the landlord had no duty to protect against the first burglary. However, the court found that the complaint alleged a duty to protect against the second and third burglaries under these “bizarre” facts and that such a duty arose because, “after defendants had notice of the original burglary and the means used in effecting the burglary, the fact that another burglary could happen in the same fashion became eminently foreseeable.” (Stribling v. Chicago Housing Authority (1975), 34 Ill. App. 3d 551, 556, 340 N.E.2d 47, 50.) A later decision observed that the duty recognized in Stribling arose due to the direct connection between the plaintiffs’ injuries and the physical condition of the leased property itself. See Smith v. Chicago Housing Authority (1976), 36 Ill. App. 3d 967, 344 N.E.2d 536.

It is fundamental that there can be no recovery in tort for negligence unless the defendant has breached a duty owed to the plaintiff. (Boyd v. Racine Currency Exchange, Inc. (1973), 56 Ill. 2d 95, 306 N.E.2d 39.) Whether such a duty exists is a question of law to be decided by the trial court. (Fancil v. Q.S.E. Foods, Inc. (1975), 60 Ill. 2d 552, 328 N.E.2d 538.) In determining the existence of a duty, the court must consider the foreseeability of the injury, the magnitude of the burden of guarding against the injury and the consequences of placing that burden upon the defendant. Trice v. Chicago Housing Authority (1973), 14 Ill. App. 3d 97, 302 N.E.2d 207; see also Cunis v. Brennan (1974), 56 Ill. 2d 372, 308 N.E.2d 617.

In the instant case the plaintiff argues that her injuries were causally connected to the premises in the same manner in which the Stribling plaintiffs’ loss was a result of the condition of the property itself and that therefore, Dalton breached a legal duty to her when it failed to protect her against her injury. Specifically, the plaintiff maintains that the causal connection arose when Hunter and McClerty allegedly violated clause 8 of the lease agreement and when Dalton thereafter did nothing to prevent them from residing on the premises or from harming the plaintiff.

We do not believe that Dalton possessed a duty to protect the plaintiff from her injuries. First, the injury complained of by the plaintiff must have been reasonably foreseeable in order to impose a duty upon Dalton. (Cunis v. Brennan (1974), 56 Ill. 2d 372, 308 N.E.2d 617.) In other words, there must have been more than a simple possibility of the injury’s occurrence, and the incident must have been foreseeable as likely to happen by a reasonably prudent person. (Cunis v. Brennan (1974), 56 Ill. 2d 372, 308 N.E.2d 617.) In Stribling the landlord’s duty was derived directly from the nature of the physical premises itself. (See Smith v. Chicago Housing Authority (1976), 36 Ill. App. 3d 967, 344 N.E.2d 536.) However, in the instant case, the plaintiff points only to the lease and its alleged violation by Hunter and McClerty to support her argument that her injury was causally connected to the premises. Negligent maintenance of the apartment building did not lead to the plaintiff’s injuries as it led to the plaintiffs’ loss in the Stribling case. If the landlord in the Stri bling case had secured the vacant apartments, it was apparent that the burglaries in the plaintiffs’ apartment would cease. The subsequent burglaries were reasonably foreseeable because an unoccupied apartment had been used as a conduit for an identical type of burglary in the past. However, in the instant case, we do not think it similarly foreseeable that Hunter would severely injure the plaintiff simply because he had twice threatened her to leave McClerty alone. Reasonable foreseeability must be judged by what was apparent to Dalton at the time of the now complained of conduct and not by what may appear through the exercise of hindsight. (Cunis v. Brennan (1974), 56 Ill. 2d 372, 308 N.E.2d 617.) While there may have been a possibility that Hunter would harm the plaintiff, we do not think the injury that occurred in this case would have been reasonably foreseeable by a reasonably prudent person.

Furthermore, we must also assess the magnitude of the burden of guarding against the injury complained of here and the consequences of placing such a burden upon Dalton. (Trice v. Chicago Housing Authority (1973), 14 Ill. App. 3d 97, 302 N.E.2d 207.) The injury in the instant case flowed from the interrelationships of three persons who happened to live in the same apartment building. While it may have been understandable for the Stribling court to impose a duty upon the landlord to maintain the physical property in a non-negligent manner, we do not think it similarly feasible to require the landlord in this case to effectively referee the tensions between two tenants and an apparent nontenant. A landlord is ordinarily entrusted with the responsibility of maintaining the premises in a nonnegligent manner. However, he is not normally required to act as an intermediary in the disputes that arise between his tenants. We therefore think that the burden and the consequences of imposing a duty upon a landlord, such as Dalton, to guard against an injury such as the plaintiff’s are both unreasonable and overly intrusive.

We consequently believe that the connection to the premises in this case is too tenuous to impose a duty upon Dalton to have protected the plaintiff from her attack by Hunter. More specifically, we do not think that the injury in this case was reasonably foreseeable, that the magnitude of the burden of guarding against the injury was slight or that the consequences of placing the burden upon the defendant were inconsiderable.

The plaintiff next argues that clause 8 of the lease agreement indicates a voluntary undertaking on behalf of Dalton to safeguard its tenants from the criminal acts of one another. The plaintiff maintains that because Dalton assumed this affirmative undertaking, it had the duty to somehow prevent the plaintiff’s injuries. The plaintiff cites Phillips v. Chicago Housing Authority (1982), 89 Ill. 2d 122, 431 N.E.2d 1038, and Cross v. Wells Fargo Alarm Services (1980), 82 Ill. 2d 313, 412 N.E.2d 472, in support of her argument. In Phillips, the landlord sealed off vacant floors of a building in a negligent manner and unauthorized persons consequently gained access to these areas. The plaintiff’s decedent was assaulted and killed on one of the negligently secured floors. In Cross, the landlord hired a guard service to patrol the building during certain hours of the day. The court found that the landlord had consequently increased the danger to tenants during the other nonpatroled hours of the day. In the instant case, we do not see where the landlord engaged in any such affirmative undertaking to protect its tenants, we do not think that the wording of the lease is analogous to the affirmative actions taken by the landlords in the Cross and Phillips cases. Therefore, we find that Dalton had no duty to protect against the plaintiff’s injuries where it did not affirmatively undertake some action to protect her.

Finally, the plaintiff contends that the landlord-tenant relationship should constitute a “special relationship” so that a landlord would be responsible and liable for the criminal acts of a third party. However, the Illinois Supreme Court has specifically observed that the “special relationship” exception does not apply to the case of a landlord-tenant relationship. (Pippin v. Chicago Housing Authority (1979), 78 Ill. 2d 204, 399 N.E.2d 596.) Therefore, where our supreme court has spoken as such on this matter, we will not consider the merits of the plaintiff’s arguments. See Rickey v. Chicago Transit Authority (1983), 98 HI. 2d 546.

For the foregoing reasons, we affirm the trial court’s dismissal of the count of the plaintiff’s complaint relating to the defendant Dalton.

ROMITI, P.J., and JOHNSON, J., concur.


author: JUSTICE WHITE

text:
    HAROLD C. DYKSTRA, Plaintiff-Appellant, v. CRESTWOOD BANK, Defendant-Appellee.
    First District (3rd Division)
    No. 82 — 996
    Opinion filed September 7, 1983.
    Michael D. Walsh, of Gierach & Schussler, Ltd., of Oak Lawn, for appellant.
    Thomas K. McQueen, of Chicago (Jenner & Block and Vincent J. Biskupie, of counsel), for appellee.
   JUSTICE WHITE

delivered the opinion of the court:

Plaintiff, Harold C. Dykstra, appeals from the final order of the circuit court of Cook County which dismissed his amended complaint against defendant, Crestwood Bank. The principal issue raised on appeal is whether plaintiff’s amended complaint states a cause of action in tort for retaliatory discharge.

Dykstra’s amended complaint contains two counts. Count I alleges: that prior to April 9, 1979, incorporators of Crestwood Bank offered Dykstra a job as “Vice-President and Cashier” and agreed to pay him $18,000 per year and to provide insurance coverage for him and his family; that on April 9, 1979, he accepted the offer; that he began his employment as vice-president and cashier on May 1, 1979; that during the period of his employment, Crestwood Bank was being organized under the laws of the State of Illinois; that on August 8, 1979, Crestwood Bank received approval from the State of Illinois to begin its business as an Illinois Banking Corporation; that on August 9, 1979, Crestwood Bank “unlawfully, wrongfully, without just cause and in bad faith” discharged him; that Crestwood Bank “unlawfully and wrongfully discharged [him] because of his age (63), which is in violation of the stated public policy of the State of Illinois, as is embodied in Section 881 et seq. of Chapter 48 of the Illinois Revised Statutes”; and that he has been compelled to accept employment for substantially lower pay. In the prayer for relief in this count, Dykstra asks for compensatory damages in excess of $15,000, $100,000 in punitive damages, and an order reinstating him to his former position.

Count II realleges those allegations of the first count regarding the offer of employment to Dykstra and the acceptance of that offer by him. It also alleges: that as a result of the actions of the parties, an oral contract of employment existed between Dykstra and Crestwood Bank; that the employment contract contained implied covenants that Crestwood Bank would act in good faith and that the bank would not discharge Dykstra without good cause; that on August 9, 1979, Crestwood Bank “unlawfully, wrongfully, without just cause and in bad faith” discharged him; that because of its action, Crestwood Bank breached its implied covenant of good faith; and that he has been compelled to accept employment for substantially lower pay. The prayer for relief contained in count II is identical to the prayer for relief in count I.

Crestwood Bank filed a motion to dismiss the amended complaint, and after a hearing on the motion, the circuit court entered an order which dismissed with prejudice the amended complaint. The circuit court reasoned that Teale v. Sears, Roebuck & Co. (1976), 66 Ill. 2d 1, 359 N.E.2d 473, “controls the issue of whether a private right of action for retaliatory discharge for an alleged firing due to age exists under the Age Discrimination Act, ch. 48, Ill. Rev. Stat. secs. 881 et seq.” and that since Teale “held that no such private right of action exists, the instant complaint must be dismissed.” We also believe that our supreme court’s decision in Teale compels the conclusion that an employee cannot maintain an. action in tort for retaliatory discharge for a discharge in violation of the public policy set forth in the Age Discrimination Act.

Section 1 of the Age Discrimination Act (Ill. Rev. Stat. 1979, ch. 48, par. 881, repealed by Pub. Act 81 — 1216) contained the following declaration of public policy:

“(a) The General Assembly declares that the practice of discriminating in employment against properly qualified persons because of their age is contrary to American principles of liberty and equality of opportunity, deprives the State of the fullest utilization of its capacities for production and endangers the general welfare.
(b) Hiring bias against workers over 45 years of age deprives the State of its most important resource of experienced employees, adds to the number of persons receiving public assistance and deprives older people of the dignity and status of self-support.
(c) The right to employment otherwise lawful without discrimination because of age, where the reasonable demands of the position do not require such an age distinction, is hereby recognized as and declared to be a right of all the people of the State which shall be protected as provided herein.
(d) It is hereby declared to be the policy of the State to protect the right recognized and declared in paragraph (c) of this Section and to eliminate all such discrimination to the fullest extent permitted. This Act shall be construed to effectuate such policy.”

Section 4 of the Act (Ill. Rev. Stat. 1979, ch. 48, par. 884, repealed by Pub. Act 81 — 1216), made it an unlawful employment practice for an employer to discharge any individual because of his age, when the reasonable demands of the position did not require such an age distinction, and section 7 of the Act (Ill. Rev. Stat. 1979, ch. 48, par. 887, repealed by Pub. Act 81 — 1216) provided that “[a]ny person who wilfully fails, neglects or refuses to comply with this Act shall be guilty of a petty offense and fined not less than $50 nor more than $100 for each offense.”

In Teale, our supreme court held that a discharged employee had no cause of action for damages for discharge from employment in violation of the Age Discrimination Act. The court noted that the Act did not expressly authorize a civil action for damages and quoted section 7 of the Act, which provided a criminal penalty for violation of the Act. In holding that no civil action for damages existed for a violation of the statute, the court reasoned:

“In its declaration of legislative policy, the General Assembly stated that'the right which the present statute created ‘shall be protected as provided herein.’ This internal restriction strongly militates against, if indeed it does not preclude, expansion of the statutory sanction by implication. And when we look beyond the terms of this statute and examine the civil remedies which the General Assembly has expressly provided for other types of discrimination, the restrictive inference that flows from the language of the statute itself becomes conclusive.” 66 Ill. 2d 1, 5.

Dykstra contends that Teale is distinguishable. He argues that because Illinois first recognized a cause of action in tort for retaliatory discharge in Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 384 N.E.2d 353, and the supreme court’s opinion in Kelsay was filed nearly two years after its opinion in Teale was filed, the cause of action upon which count I of the amended complaint is based did not exist and was not available to the plaintiff in Teale. Thus, according to Dykstra, Teale is clearly distinguishable. We disagree. In Kelsay, our supreme court held that an employee whose employment had been terminated as retaliation for filing a workmen’s compensation claim had a cause of action for retaliatory discharge. In reaching this conclusion, the court purported to distinguish Teale on the basis of language in the Age Discrimination Act which declared that the right to employment without discrimination because of age “shall be protected as provided herein.” (See Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 185-86.) According to our supreme court, there was no language in the Workmen’s Compensation Act which precluded an action for retaliatory discharge. (See Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 184.) Since our supreme court distinguished, rather than overruled Teale, we are bound by that decision. In our opinion, Teale prevents Dykstra from maintaining a cause of action in tort for retaliatory discharge based upon the public policy embodied in the Age Discrimination Act, because in announcing that public policy, the legislature specifically restricted the remedies available for violation of that public policy. The statement by our supreme court in Teale that “it would be incongruous to derive by implication a right to recover unlimited damages for a violation of this statute” is dispositive of this issue. 66 Ill. 2d 1, 6.

Dykstra also contends that Teale should not affect the viability of his cause of action because his original complaint was filed after the effective date of the repeal of the Age Discrimination Act. Relying on Blough v. Ekstrom (1957), 14 Ill. App. 2d 153, 160-61, 144 N.E.2d 436, he argues that if statutorily created actions are abated by repeal, any restrictions imposed on Dykstra’s cause of action necessarily abated with the repeal. We observe that Dykstra did not make this argument in his initial brief in this court and that he raised it for the first time on appeal in his reply brief. Thus, he has waived this point. (See 87 Ill. 2d R. 341(e)(7).) Moreover, we note that count I of Dykstra’s amended complaint relies upon the public policy stated in the Age Discrimination Act in attempting to state a cause of action for retaliatory discharge. Assuming that the effect of the repeal of the Act was to obliterate the Act as completely as if it had never been passed (See Blough v. Ekstrom (1957), 14 Ill. App. 2d 153, 160-61), then the amended complaint failed to allege the existence of a clear public policy, which is a necessary element of a cause of action for retaliatory discharge. See Palmateer v. International Harvester Co. (1981), 85 Ill. 2d 124, 131, 421 N.E.2d 876.

Dykstra’s last argument is that Teale, if applicable, would only affect count I of the amended complaint. According to him, count II states a cause of action for breach of the implied covenant of good faith contained in an oral contract of employment between Dykstra and Crestwood Bank. Once again, we observe that this issue was not raised in Dykstra’s original brief and that he raised it for the first time on appeal in his reply brief. Thus, this issue has also been waived. Even if the issue had not been waived, however, we believe that count II was properly dismissed for failure to state a cause of action.

•3 While every contract implies good faith and fair dealing between the parties to it (Martindell v. Lake Shore National Bank (1958), 15 Ill. 2d 272, 286, 154 N.E.2d 683; Criscione v. Sears, Roebuck & Co. (1978), 66 Ill. App. 3d 664, 668, 384 N.E.2d 91), count II of the amended complaint contains no factual allegations giving any indication of bad faith dealing on the part of Crestwood Bank. It merely states the conclusory allegation that Crestwood Bank “unlawfully, wrongfully, without just cause and in bad faith” discharged him. Count II does not even allege that there was a breach of the implied covenant of good faith because Dykstra was discharged on the basis of his age. This, in our opinion, was a fatal deficiency. (See Criscione v. Sears, Roebuck & Co. (1978), 66 Ill. App. 3d 664, 668-69.) Moreover, we are reluctant to create an exception sounding in contract to the general rule that an at will employment is terminable at any time for any or no cause that would be broader than the exception to that rule created by our supreme court when it recognized the tort of retaliatory discharge.

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

Affirmed.

McNAMARA, P.J., and McGILLICUDDY, J., concur.

      The Illinois Human Rights Act (Ill. Rev. Stat. 1981, ch. 68, par. 1 — 101 et seq.), which was approved by Public Act 81 — 1216, now provides protection for employees who are victims of age discrimination.

      In Kelsay, the employer argued that the exclusivity provision of section 11 of the Workmen's Compensation Act (Ill. Rev. Stat. 1973, ch. 48, par. 138.11), which provides that the provisions of the Act “shall be the measure of the responsibility of any employer,” precluded an action for retaliatory discharge. Our supreme court disagreed for two reasons:
      “First, that section was meant to limit recovery by employees to the extent provided by the Act in regard to work-related injuries, and was not intended to insulate the employer from independent tort actions. Second, we cannot accept a construction of section 11 which would allow employers to put employees in a position of choosing between their jobs and seeking their remedies under the Act. *** Accordingly, we feel it is improper to interpret section 11 in the manner suggested by the employer.” Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 184.

      We note that in an opinion subsequent to Kelsay, our supreme court followed its decision in Teale, holding that at the time covered by the complaint involved in that case, a private cause of action could not be maintained under the Retail Installment Sales Act (Ill. Rev. Stat. 1973, ch. 121½, par. 501 et seq.). Hoover v. May Department Stores Co. (1979), 77 Ill. 2d 93, 97, 395 N.E.2d 541.


author: PRESIDING JUSTICE ROMITI

text:
    ARLENE SHIMKUS, Plaintiff-Appellee, v. BOARD OF REVIEW OF THE ILLINOIS DEPARTMENT OF LABOR et al., Defendants-Appellants.
    First District (4th Division)
    No. 82 — 1939
    Opinion filed September 1, 1983.

      Tyrone C. Fahner, Attorney General, of Springfield (Kathleen M. Lien, Assistant Attorney General, of counsel), for appellants.
    Frank M. Grenard, of Lafontant, Wilkins, Jones & Ware, of Chicago, for appellee.
   PRESIDING JUSTICE ROMITI

delivered the opinion of the court:

Plaintiff after her discharge from employment received unemployment compensation insurance. She filed a civil rights suit (42 U.S.C. sec. 1981 et seq. (1976)), against the employer. This suit was settled. The agreed order while specifically for “damages” was keyed to her salary; she was also restored to her position and her employment benefits were restored. The employee’s list of losses for which she sought reimbursement if the case was settled listed as the major claim salary loss of $17,600. The Department of Labor found that the settlement was in fact for back pay or wages and thus that she was required to return the $5,229. The circuit court reversed. We reverse and render judgment for the Department of Labor.

Arlene Shimkus, plaintiff, was discharged from her position as an administrative assistant at Cermak Memorial Hospital on November 8, 1979. Claiming that she was wrongfully discharged, plaintiff filed a civil rights action in the United States District Court for the Northern District of Illinois against Cook County Hospital, Cook County Prison Health Services, Cook County Board, William J. Silverman, individually and as an agent of Cook County Hospital, and Robert Dean, individually and as an agent of Cook County Hospital and Cook County Prison Health Services.

During negotiations to settle the civil rights claim, plaintiffs attorney sent a letter to the assistant State’s Attorney representing the defendants, listing the losses sustained by plaintiff for which reimbursement was sought in order to settle the claim. The letter reads as follows:

“Pursuant to our conversation, I am listing herein the losses sustained by Arlene Shimkus for which she seeks reimbursement in the event we are able to settle this cause of action:
Please call if you have any questions. In the event we are able to resolve this matter based upon the payment of the above listed expenses, without the necessity of litigation, please advise.”

The civil rights claim was settled against all parties except Robert Dean individually. Dean was the only party, as the Federal district court ruled in its order, against whom a claim for punitive damages could be brought. Pursuant to the settlement, Judge Frank J. McGarr of the United States District Court for the Northern District of lilinois entered a judgment order to (a) dismiss defendants, except Dean, (b) to pay plaintiff $22,885.69 “for damages and compensation,” (c) to restore plaintiff to her position of employment and to all benefits she was entitled to but for the discharge, and (d) to increase the monetary consideration awarded by any salary adjustment to which she would have been entitled and would have received had she been in the continuous employment of the defendant. It was further provided that the monetary conditions were settlements “as and for damages.”

The claim being settled, the assistant State’s Attorney sent a letter to the Cook County Commissioners advising them that the claim had been settled and asking them to have a check made payable to plaintiff in the amount of $18,033.98 for “back pay and actual damages.” The letter further stated that the check for plaintiff was “net of taxes which are $4,312.63 (Federal) and $539.08 (State) and which must be forwarded by us to the taxing agencies.” While counsel for plaintiff stated to the circuit court that such taxes were refunded, we have been unable to find any evidence in the record of this fact— though this would not affect our decision since the Department of Labor is not bound by the determinations of the Internal Revenue Service or the Illinois Department of Revenue.

During the pendency of the civil rights suit, Shimkus had been paid $133 weekly unemployment compensation benefits for the weeks of April 19, 1980, through January 10, 1981. After the settlement the Department of Labor sought to recoup the monies paid, relying on section 900(D) of the Unemployment Insurance Act (Ill. Rev. Stat. 1979, ch. 48, par. 490(D)), which provides:

“D. Whenever, by reason of a back pay award made by any governmental agency or pursuant to arbitration proceedings, or by reason of a payment of wages wrongfully withheld by an employing unit, an individual has received wages for weeks with respect to which he has received benefits, the amount of such benefits may be recouped or otherwise recovered as herein provided.”

Wages are defined in section 234 (Ill. Rev. Stat. 1981, ch. 48, par. 344) as:

“Sec. 234. Subject to the provisions of Section 235 and 245C, ‘wages’ means every form of remuneration for personal services, including salaries, commissions, bonuses, and the reasonable money value of all remuneration in any medium other than cash.”

At the administrative hearing, besides the aforementioned evidence, there was testimony from the employer’s witness that the settlement was negotiated over the categories of alleged losses enumerated in the letter her attorney had sent. The settlement was reached by adding together her various losses including back pay. The Department of Labor ruled that the settlement was based on back pay. The circuit court reversed on the grounds that the purpose of the Civil Rights Act was to pay damages but also to penalize officials, the judgment said it was for damages and not for specific losses (this is inaccurate as there was no such statement in the order), the purpose of the order was not to reimburse her for back pay, and the Director of Labor was bound by the settlement order.

I

Shimkus first contends that the Department of Labor was bound by the Federal court adjudication. But the Department of Labor was not a party to that lawsuit, and it is hornbook law that a person’s rights cannot be precluded by litigation to which it is a stranger. The doctrine of collateral estoppel can only be applied against a person who was either a party to the first lawsuit or in privity therewith. (Claiborne v. Hutchinson (1978), 67 Ill. App. 3d 374, 385 N.E.2d 29.) Plaintiff contends in her brief that of course the Department of Labor was in privity with the employer. However, she cites no authority for this proposition. Certainly a taxing body is not in privity with the one taxed merely because it receives money from him or her. Nor is one agency of the government in privity with another agency of another government. It appears from plaintiff’s brief that she rests her contention on the supposition that since the county was a nonprofit organization, it would recover back any money recouped by the Department. Plaintiff in her brief has cited no evidence in the record establishing that the employer had elected to make payments in lieu of contributions under section 1405 of the Act (Ill. Rev. Stat. 1979, ch. 48, par. 555), and it would appear from section 1404 of the Act (Ill. Rev. Stat. 1979, ch. 48, par. 554) that only such employers would recover back the full amount paid. In any event, the Act does not make the Department’s right to recover dependent on the right of the employer, although, of course, the employer’s right is dependent on the right of the Department, and we cannot read such a requirement into the statute. At most the county’s conduct could bar its own recovery from the Department or render it liable to the employee but particularly in light of the fact that the doctrines of estoppel and waiver are rarely applied to governmental agencies (People ex rel. Department of Transportation v. Fansler (1982), 103 Ill. App. 3d 149, 430 N.E.2d 741; County of Cook v. Patka (1980), 85 Ill. App. 3d 5, 405 N.E.2d 1376), it would be improper to allow an unrelated agency by its conduct to destroy a clearly provided statutory right.

II

Whether the Department can, under any circumstances, be considered bound by the judgment is, however, immaterial since we conclude that the Department’s finding that the judgment was to indemnify the plaintiff for lost wages was supported by the evidence. The judgment stated that the award was for damages and compensation; back pay was never excluded as an element of damages. An award of back pay and an award of damages are not necessarily mutually exclusive since lost wages are frequently part of an award for damages. In this case the precise amount of the money award was governed by the amount of salary adjustments. This makes no sense unless the award was for lost wages. Thus even if we consider only the four corners of the judgment itself we find the decision of the Department reasonable.

This conclusion is rendered inescapable when one considers the settlement negotiations. As the district court ruled, plaintiff in the civil rights suit could only recover compensatory damages, that is, damages for actual injuries and losses sustained. The district court could not, as the circuit court seemed to believe, award damages merely to punish the county, and before the plaintiff could recover more than nominal damages, she had to prove actual injury. (Seymore v. Readers Digest Association, Inc. (S.D.N.Y. 1980), 493 E Supp. 257.) But according to the record the only losses the plaintiff claimed she sustained were for lost wages and a few lesser job-related losses. The district court’s judgment had to have been for these losses. Loss of earnings (T & S Service Associates, Inc. v. Crenson (1st Cir. 1981), 666 F.2d 722; Waters v. Wisconsin Steel Works (7th Cir. 1974), 502 F.2d 1309, cert. denied, (1976), 425 U.S. 997, 48 L. Ed. 2d 823, 96 S. Ct. 2214) and back pay (Johnson v. Goodyear Tire & Rubber Co. (5th Cir. 1974), 491 F.2d 1364) can be awarded under the Act as appropriate measures of damages.

It follows that the decision of the Department of Labor was supported by the substantial weight of the record and should have been affirmed. Moreover this decision is reasonable. The purpose of the Unemployment Insurance Act is to protect those who are unemployed and not receiving wages. But plaintiff, although temporarily out of work, did succeed in recovering those wages from her employer. She has no need of a double recovery.

Judgment of circuit court reversed and case remanded to circuit court with instructions to enter judgment on the award of the Department of Labor.

Reversed and remanded with instructions.

JIGANTI and LINN, JJ., concur.

      Plaintiff repeatedly states in her brief that the order provides that the settlement was for damages and not a back pay award. In fact however there was no language in the order stating it was not compensation for back pay or lost wages.

      Plaintiff’s contention that settlement negotiations are privileged and never admissible is without merit. Evidence of settlements and settlement offers is generally inadmissible as a matter of public policy and because such evidence is irrelevant. (Ross v. Danter Associates, Inc. (1968), 102 Ill. App. 2d 364, 242 N.E.2d 330; Hill v. Hiles (1941), 309 Ill. App. 321, 32 N.E.2d 933.) But where the settlement offer is relevant to the issues it is of course relevant and admissible. Smiley v. Manchester Insurance & Indemnity Co. (1977), 49 Ill. App. 3d 675, 364 N.E.2d 683, aff’d (1978), 71 Ill. 2d 306, 375 N.E.2d 118.


author: JUSTICE PERLIN

text:
    JAY EMERICH, Plaintiff and Counterdefendant-Appellee, v. BERNARD LEVITON, Defendant and Counterplaintiff and Counterdefendant-Appellant—(Dot Chere E. McAvoy, Defendant and Counterplaintiff and Counterdefendant-Appellee).
    First District (2nd Division)
    No. 82 — 2272
    Opinion filed September 6, 1983.

      Paula M. Uscian, of Collins & Amos, of Chicago, for appellant.
    Friedman & Koven, of Chicago (Lawrence M. Templer, of counsel), for appellee Dot Chere E. McAvoy.
   JUSTICE PERLIN

delivered the opinion of the court:

Plaintiff, Jay Emerich, brought an action against defendants, Bernard Levitón and Dot Chere E. McAvoy, to rescind a real estate contract he had entered into with Levitón and to recover the earnest money he had paid to McAvoy, a real estate broker who served as an escrowee. McAvoy filed a counterclaim against Levitón for a broker’s commission. Emerich obtained a default judgment against Levitón and McAvoy was ordered to return Emerich’s earnest money. No action was taken on McAvoy’s counterclaim. The default judgment and the orders based on it were subsequently vacated because Levitón had not been served. Levitón thereafter answered Emerich’s complaint and McAvoy’s counterclaim. Levitón also filed a counterclaim against Emerich and McAvoy for the earnest money.

Following a bench trial, the circuit court found that Levitón had improperly executed the contract to sell the property. The court ordered the contract rescinded and allowed Emerich to retain the earnest money McAvoy had returned to him under the orders previously issued in this matter. The court entered judgment for Emerich and McAvoy on Leviton’s counterclaims. The court also entered judgment for McAvoy on her counterclaim against Levitón for a broker’s commission and awarded her prejudgment interest. Finally, taking note of an agreement Emerich and Levitón had reached while this litigation was pending to share any commission McAvoy was ultimately awarded, the court ordered Emerich to indemnify Levitón for one-half of McAvoy’s commission.

On appeal, Levitón contends that the trial court erred in rescinding the contract; in entering judgment for McAvoy on Leviton’s counterclaim for the earnest money; in upholding McAvoy’s counterclaim against him for her commission; and in awarding her prejudgment interest. For the reasons hereinafter stated, we affirm.

This cause was tried on the following stipulation of facts:

Emerich, as purchaser, and Levitón, as seller, executed a real estate sales contract on January 4, 1978. McAvoy served as the real estate broker in the transaction. Throughout the negotiations for the sale of the property, up to and including the date on which the contract was signed, title to the subject property was held in a land trust at the Exchange National Bank under Trust No. 32779, dated August 3, 1977. Levitón was one of the two beneficiaries of the trust and held an undivided 50% interest. The other beneficiary was Nicholas A. Karris.

Under the terms of the trust, the trustee was required to “make deeds for, or otherwise deal with the title to said real estate” only on the written direction of Levitón and Karris. The trust agreement also provided that “[t]he beneficiary or beneficiaries hereunder, in his, her or their own right shall have *** control of the selling [of the property] ***.”

Before the contract for the sale of the property was executed on January 4, 1978, neither Emerich nor McAvoy knew that the property was owned in trust or that Levitón was a beneficiary of that trust. The contract did not indicate that title to the property was held in a land trust or that Levitón was a beneficiary thereof.

Paragraph 7 of the contract obligated Levitón to pay McAvoy a broker’s commission of $10,000 at closing, which was to take place on February 10, 1978. Paragraph 5 of the Conditions and Stipulations of the contract provided in part that “[i]f this contract is terminated without Purchaser’s fault, the earnest money shall be returned to the Purchaser ***.”

Emerich paid $24,500 in earnest money to McAvoy who served as an escrowee. Three days before closing, on February 7, 1978, Emerich’s attorney sent a letter to Leviton’s attorney, Nicholas A. Karris (Leviton’s cobeneficiary), stating that Emerich was repudiating the contract.

We first consider Leviton’s contention that the trial court erred in rescinding the contract to sell the property.

A beneficiary of a conventional land trust, when acting in his capacity as beneficiary, may enter into a valid contract to convey title to the trust property, if the trust agreement vests in him the sole right to direct the trustee to convey title. (See First National Bank v. Oldenburg (1981), 101 Ill. App. 3d 283, 287, 427 N.E.2d 1312, and the cases cited therein.) Where, as here, two or more beneficiaries share that right, a contract to sell the trust property is not enforceable unless all such beneficiaries consent to the sale. Celeste Italian Foods, Inc. v. Choyce (1972), 9 Ill. App. 3d 361, 363, 292 N.E.2d 177; Page v. Fosco (1980), 90 Ill. App. 3d 1113, 1115, 414 N.E.2d 89; Kurek v. State Oil Co. (1981), 98 Ill. App. 3d 6, 9-10, 424 N.E.2d 56.

There is no evidence in the parties’ stipulation of facts that Nicholas A. Karris, the other beneficiary of the trust in the instant case, agreed to sell the trust property or granted Levitón authority to execute the contract in question. (See, e.g., Penner v. Frisch (1978), 57 Ill. App. 3d 947, 373 N.E.2d 777.) We therefore conclude that the contract was not enforceable against the purchaser, Emerich. Consequently, Emerich was entitled to repudiate the contract and to retain the earnest money payments that the broker, McAvoy, had paid to him under the court orders previously entered in this cause. In light of this determination, we need not address Leviton’s second contention that the court erred in denying his counterclaim against McAvoy for the earnest money.

We next consider whether the trial court properly entered judgment in favor of McAvoy on her counterclaim against Leviton for a broker’s commission of $10,000. In Ellis Realty v. Chapelski (1975), 28 Ill. App. 3d 1008, 329 N.E.2d 370, the court stated:

“A seller engages a real estate broker to find a purchaser, and that is the extent of the broker’s undertaking. [Citation.] A real estate broker earns his commission when he produces a purchaser who is ready, -willing and able to meet his principal’s terms. [Citations.] The broker can perform the services requested of him without affecting title to or possession of the property being offered for sale. Consequently, liability for payment of the commission does not depend on whether the principal has authority to enter into a binding contract to sell or to convey.” (28 Ill. App. 3d 1008, 1011.)

Thus, in cases involving land trusts, it has been held that the mere fact that the person employing a broker owned only a part interest in the trust does not relieve him from liability to the broker for commissions whether or not he had authority to contract for his cobeneficial owner(s). (Erbach & Haunroth Realtors v. Burnett (1975), 31 Ill. App. 3d 236, 239-40, 333 N.E.2d 592; Haas v. Cohen (1973), 10 Ill. App. 3d 896, 900, 295 N.E.2d 28.) McAvoy was entitled to her commission regardless of the enforceability of the sales contract between Leviton and Emerich. See Wolfenberger v. Madison (1976), 43 Ill. App. 3d 813, 816-17, 357 N.E.2d 656.

Levitón, however, contends that McAvoy should not have received the $10,000 commission specified in the sales contract because the contract provided that the commission would be paid at closing. We disagree. Such language has been construed to fix the time of payment and not to make payment contingent upon closing. (Webster v. Hochberg (1969), 105 Ill. App. 2d 466, 477, 245 N.E.2d 529.) Moreover, even if we assumed that closing was a condition precedent to McAvoy receiving her commission, satisfaction of that condition was excused in this instance by Leviton’s own conduct which prevented the sale from being consummated (i.e., his failure to secure the consent of the cobeneficial owner). (Haas v. Cohen (1973), 10 Ill. App. 3d 896, 901, 295 N.E.2d 28.) “[T]he seller cannot take advantage of a condition precedent the performance of which he has rendered impossible.” Goldstein v. Rosenberg (1947), 331 Ill. App. 374, 375, 73 N.E.2d 171.

Finally, Levitón contends that McAvoy should not have been awarded statutory prejudgment interest on her commission because he had an oral employment contract with her and the statute requires an “instrument in writing.” (Ill. Rev. Stat. 1981, ch. 17, par. 6402.) Examination of the real estate contract, however, reveals that Levitón, Emerich and McAvoy all initialed paragraph 7 in which Leviton agreed to pay a broker’s commission of $10,000 to McAvoy at closing. In our judgment, this satisfied the requirement of an “instrument in writing.” See Hamilton v. American Gage & Machine Corp. (1976), 35 Ill. App. 3d 845, 853, 342 N.E.2d 758.

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

Affirmed.

STAMOS and HARTMAN, JJ., concur.


author: JUSTICE STAMOS

text:
    IDA HUCK, Special Adm’r of the Estate of Lawrence Huck, Deceased, et al., Plaintiffs-Appellants, v. NORTHERN INDIANA PUBLIC SERVICE COMPANY et al., Defendants—(Northern Indiana Public Service Company, Defendant-Appellee).
    First District (2nd Division)
    No. 82 — 2540
    Opinion filed September 6, 1983.
    Matthew I. Baker, of Karlin & Fleisher, Ltd., of Chicago (David A. Novoselsky, of counsel), for appellants.
    Fohrman, Lurie, Sklar & Simon, Ltd., of Chicago (Miles J. Zaremski, of counsel), for appellee.
   JUSTICE STAMOS

delivered the opinion of the court:

Plaintiffs Ida Huck and Johnny K. Hopkins sued for damages arising from the death of Lawrence Huck and from injuries sustained by Johnny K. Hopkins. The death and injuries occurred when an antenna being installed by Huck and Hopkins came into contact with power lines through which electrical current produced by defendant Northern Indiana Public Service Company (NIPSCO) was flowing. Plaintiffs sued NIPSCO and the manufacturer of the antenna. Defendant NIPSCO filed a motion to quash service of summons for lack of personal jurisdiction. The trial court granted defendant’s motion and plaintiffs appeal.

On May 2, 1981, John K. Hopkins and Lawrence Huck were attempting to install a C.B. antenna on the roof of Buck’s home in Winamac, Indiana. Huck was killed and Hopkins was injured when the antenna came into contact with power lines owned by the City of Winamac through which electrical current produced by defendant Northern Indiana Public Service Company was flowing. Plaintiffs brought suit in Illinois against NIPSCO and other defendants. NIPSCO filed a special and limited appearance and a motion to quash service of summons, claiming that the circuit court of Cook County had no personal jurisdiction over it because NIPSCO does not do business in Illinois. NIPSCO supported its motion with the. affidavit of Mr. Horace Lyle, its vice-president for electrical production. By agreement of the parties, Mr. Lyle’s deposition, which was taken in the case of Bethlehem Steel Corp. v. Northern Indiana Public Service Co. (N.D. Ill., Sept. 20, 1982), No. 82 C 118, was used concerning plaintiffs’ response to defendant’s motion to quash.

Plaintiffs base their contention that defendant is doing business in Illinois on several alleged “contacts” with this State. The following are the contacts relied upon by plaintiffs to satisfy the jurisdictional “doing business” requirement:

(1) Defendant buys and sells electrical power to Commonwealth Edison Co., an Illinois corporation, through a contract with that company and Commonwealth Edison Co. of Indiana, Inc., an unrelated Indiana corporation;
(2) Defendant buys 40-50% of its coal from Illinois coal fields and transports this coal to Indiana by seven unit coal trains, three of which are leased from an Illinois company and serviced and maintained in Illinois;
(3) Defendant uses two Chicago banks, through contractual arrangements, as depositories, disbursing agents for some of the utility’s funds, as trustees under a mortgage on certain real estate owned by defendant and located in Indiana, as trustees of defendant’s pension fund and as stock transfer agents;
(4) Defendant owns natural gas pipelines in Indiana which connect with interstate pipelines running between Illinois and Indiana and owned by entities independent of defendant, through which defendant receives gas from storage fields located in Elinois; and
(5) Defendant uses Illinois television and radio stations for advertising purposes.

The trial court granted defendant’s motion to quash, and plaintiffs appeal.

Plaintiffs contend that defendant’s activities within Illinois are sufficient to constitute doing business, thus subjecting defendant to the personal jurisdiction of the Illinois courts under sections 2 — 204 and 2 — 208 of the Code of Civil Procedure. Ill. Rev. Stat. 1981, ch. 110, pars. 2 — 204, 2 — 208.

A finding that a corporation is doing business in Illinois generally requires that the corporation conduct business in Illinois “of such a character and extent as to warrant the inference that it has subjected itself to the jurisdiction and laws of Illinois.” Maunder v. DeHavilland Aircraft of Canada, Ltd. (1983), 112 Ill. App. 3d 879, 882, 445 N.E.2d 1303.

The standards to be used in applying the doing business doctrine were set forth by the Illinois Supreme Court in Cook Associates, Inc. v. Lexington United Corp. (1981), 87 Ill. 2d 190, 429 N.E.2d 847. In Cook, the court stated that the doing business test was not to be equated with the mere satisfaction of the minimum contacts requirement under the due process clause of the fourteenth amendment to the United States Constitution. (87 Ill. 2d 190, 200-201; see Green v. Advance Ross Electronics Corp. (1981), 86 Ill. 2d 431, 436, 427 N.E.2d 1203.) The court so ruled in order to maintain the distinction between the long-arm statute and the doing business standard and to avoid tying these rules to the ever-changing due process standards. 87 Ill. 2d 190, 201.

The court premised its examination of the defendant’s activities under the doing business test as applied in Illinois with the statement that “[t]here is no all-inclusive test for determining whether a foreign corporation is doing business in this State.” (87 Ill. 2d 190, 201.) Although there may be no such all-inclusive test, almost all Elinois cases determining the existence of personal jurisdiction over foreign corporations have based their findings upon the existence of factors such as offices or sales activities in Illinois. See, e.g., Braband v. Beech Aircraft Corp. (1978), 72 Ill. 2d 548, 382 N.E.2d 252, cert. denied (1979), 442 U.S. 928, 61 L. Ed. 2d 296, 99 S. Ct. 2857; St. Louis-San Francisco Ry. Co. v. Gitchoff (1977), 68 Ill. 2d 38, 369 N.E.2d 52; Hertz Corp. v. Taylor (1959), 15 Ill. 2d 552, 155 N.E.2d 610; American Hide and Leather Co. v. Southern Ry. Co. (1923), 310 Ill. 524, 142 N.E. 200; Maunder v. Dehavilland Aircraft of Canada, Ltd. (1983), 112 Ill. App. 3d 879, 445 N.E.2d 1303.

In these cases, there was continuous and permanent activity which is absent in the case at bar. Defendant does not maintain any offices or employees in Illinois, nor does it solicit Illinois business. In fact, soliciting business in Illinois would be pointless, because defendant is not authorized by the Illinois Commerce Commission to provide utility service to any portion of Illinois.

As for the contacts between defendant and Illinois listed above, these do not rise to the level of doing business. These contacts, along with several others, were recently considered by the United States District Court for the Northern District of Illinois in Bethlehem Steel Corp. v. Northern Indiana Public Service Co. (N.D. Ill., Sept. 20, 1982), No. 82 C 118, and found to be insufficient to confer jurisdiction over defendant.

The record in the instant case contains, as an exhibit attached by plaintiffs to their response to defendant’s motion to quash, a copy of the deposition of defendant’s vice-president for electrical production which was taken in connection with the Bethlehem Steel case. This deposition describes defendant’s contacts with Illinois as of March 1982. The facts contained therein were the basis, in part, for the United States District Court’s ruling in Bethlehem Steel.

Plaintiffs in the case at bar argue, based on facts elicited from the deposition, that defendant has maintained a continuous and ongoing business relationship with Illinois sufficient to confer personal jurisdiction over it under the doing business standard. Any analysis of this relationship would therefore be incomplete absent an examination of the United States District Court’s consideration of the same facts in Bethlehem Steel. While Federal court decisions construing Illinois law are not binding on Illinois courts, they are nonetheless persuasive. People ex rel. Lignoul v. City of Chicago (1977), 67 Ill. 2d 480, 484, 368 N.E.2d 100.

The first contact alleged by plaintiffs is the agreement by which power could be bought and sold between defendant and Commonwealth Edison Company of Illinois. An earlier version of this contract was examined in Stephens v. Northern Indiana Public Service Co. (1980), 87 Ill. App. 3d 961, 409 N.E.2d 423, and found not to constitute doing business in Illinois. At the time of the Stephens case, the contract was an interconnection agreement between defendant and a second Indiana corporation whereby power generated in Illinois could be purchased by defendant from the second Indiana corporation, and power generated by defendant to the second Indiana corporation could be transmitted into Illinois. The Stephens court concluded that, since no purchases were actually shown to have been made in Illinois (defendant conducted all transactions solely with the second Indiana corporation), no business was being conducted in Illinois.

This agreement, however, was altered in 1979, after the cause of action in Stephens arose, so that the court’s analysis of the agreement in that decision is of no help in deciding the instant case absent a consideration of the 1979 changes. The Bethlehem Steel opinion is likewise of little assistance in resolving this issue because the plaintiff in that case failed to produce any evidence of the 1979 changes, leading the court to follow the Stephens analysis.

The only evidence contained in the record as to the current status of this agreement is the deposition of defendant’s officer taken in Bethlehem Steel, plus an affidavit by that same officer. Paragraph 6 of the affidavit describes the interconnection agreement as follows:

“(6)(a) NIPSCO has an interconnection agreement with Commonwealth Edison Company (CE), an Illinois public utility company, and its wholly owned subsidiary, Commonwealth Edison Company of Indiana, Inc. (CECI). CECI is an Indiana corporation located in Indiana which is a generating and transmission electric utility. NIPSCO will on occasion buy, sell, or interchange power with CE which will utilize the CECI transmission facilities for delivery or receipt of this electric power within the state of Indiana.
(b) NIPSCO’s physical plant, including electrical lines and related items which are devoted to and involved in said arrangement with CE is entirely within the state of Indiana. Although electrical current which might be supplied by NIPSCO to CE might move into Illinois on physical plant located in Illinois, all such physical plant is owned by a legal entity other than and independent of NIPSCO.”

It is clear from this description that no substantial ongoing business contacts between defendant and Illinois exist as a result of this agreement. As the affiant has stated, defendant owns no physical plant in Illinois, and no Illinois transmission facilities are used for the delivery of power between Illinois and Indiana.

Plaintiffs argue that the facts are sufficient to satisfy the due process requirements of World-Wide Volkswagen Corp. v. Woodson (1980), 444 U.S. 286, 62 L. Ed. 2d 490, 100 S. Ct. 559, and International Shoe Co. v. Washington (1945), 326 U.S. 310, 90 L. Ed. 95, 66 S. Ct. 154, but, as we have noted above, the due process standard represents only the outer limits beyond which a State may not go to acquire jurisdiction over nonresidents. A State is free to set its own limits in acquiring this jurisdiction within the perimeters of the due process clause. (Cook Associates, Inc. v. Lexington United Corp. (1981), 87 Ill. 2d 190, 197, 429 N.E.2d 847.) In Illinois, “doing business” is the standard, and we cannot say that defendant’s activities under this interconnection agreement constitute doing business in Illinois.

The description of this agreement in the deposition of defendant’s officer is very general, and does not disclose any substantially greater contacts with Illinois than were found by the Stephens court in the pre-1979 contract. Hence, we find no evidence in the record of any additional contacts between defendant and Illinois under the post-1979 agreement. The Stephens analysis of these facts is therefore dis-positive. The interconnection agreement, even in its present form, does not rise to the level of doing business in Illinois.

Plaintiffs next argue that defendant’s purchase of 40% to 50% of its coal from Illinois coal fields, and the transportation of that coal through Illinois by unit trains leased by defendant from a company with maintenance facilities in Illinois, constitutes doing business in Illinois. This arrangement was also addressed in Bethlehem Steel, and there has been no showing that the facts have changed since that opinion was handed down. In Bethlehem Steel, the court noted that the purchase of coal does not call for defendant’s presence in Illinois in any manner whatsoever, and that defendant’s leasing of three of its' coal trains from a company whose maintenance facilities happen to be located in Illinois does not reflect any ongoing activity on defendant’s part in Illinois. Bethlehem Steel Corp. v. Northern Indiana Public Service Co. (N.D. Ill., Sept. 20, 1982), No. 82 C 118, slip op. at 10.

Defendant’s banking activities in Illinois were examined in both Stephens and Bethlehem Steel and were found not to constitute doing business in Illinois. In Stephens, the court stated: “The banking activities carried on in Chicago do not produce revenues for defendant; they are not of the type of business for which the corporation was organized and are incidental to its main operation.” (Stephens v. Northern Indiana Public Service Co. (1980), 87 Ill. App. 3d 961, 970.) The court found that these activities could not be classified as a substantial and continuing part of defendant’s business in Illinois so as to make defendant a “resident” for jurisdictional purposes. 87. Ill. App. 3d 961, 970.

Defendant’s storage of natural gas in Illinois storage fields and its transportation of that gas by pipeline into Indiana were likewise addressed in both Stephens and Bethlehem Steel. The above mentioned deposition of defendant’s vice-president for electrical production reveals that defendant did not own any gas stored in Illinois but merely had a right to obtain gas from the Illinois storage fields, which gas would become defendant’s only upon being brought out and injected into defendant’s pipelines in Indiana. Additionally, defendant does not own any pipeline in Illinois. The Stephens court stated:

“Nor can the connection of its [defendant’s] intrastate pipeline in Indiana with an interstate pipeline running through Illinois be deemed a purposeful activity related to the forum State. The interstate pipeline no doubt runs through almost every State in the union-would that be a ‘contact’ in each of those States sufficient to assert jurisdiction there? We think not.” 87 Ill. App. 3d 961, 969.

Plaintiffs’ final alleged contact is defendant’s use of Chicago television and radio stations to advertise. Of this it is sufficient to say that, because defendant is not authorized to provide services in Illinois, these advertisements cannot be intended to solicit business in Illinois. Defendant has alleged that these advertisements are used only to reach its customers in Indiana, and plaintiffs have produced no evidence nor made any practical argument to the contrary. See Bethlehem Steel Corp. v. Northern Indiana Public Service Co. (N.D. Ill., Sept. 20, 1982), No. 82 C 118, slip. op. at 11.

Plaintiffs argue that “it would be physically impossible for [defendant] to conduct its business without the use and enjoyment of this jurisdiction”; however, this is not the standard to be used in determining the existence of in personam jurisdiction in Illinois. The standard is doing business, and we find no evidence in the record that defendant is doing business on a continuing and permanent basis in Illinois.

We also consider the fact that Illinois has no significant relationship to the subject matter of the case at bar. The burden on the defendant of litigating in Illinois should be considered in light of Illinois’ interest in adjudicating the dispute. (World-Wide Volkswagen Corp. v. Woodson (1980), 444 U.S. 286, 292, 62 L. Ed. 2d 490, 498, 100 S. Ct. 559, 564.) Plaintiffs’ cause of action arises from events occurring solely in Indiana, and any witnesses or evidence in the case will be found in Indiana. Thus, as a practical matter, Illinois is not sufficiently interested in this litigation to warrant overruling defendant’s objection to jurisdiction. See Stephens v. Northern Indiana Public Service Co. (1980), 87 Ill. App. 3d 961, 970, 409 N.E.2d 423; Bethlehem Steel Corp. v. Northern Indiana Public Service Co. (N.D. Ill., Sept. 20,1982), No. 82 C 118, slip op. at 12.

In sum, because defendant maintains no offices in Illinois, solicits no business in Illinois and has no employees, agents or customers in Illinois, it cannot be said to be doing business here. It would be neither reasonable or fair to require defendant to defend this litigation in Illinois. We therefore find that the Code of Civil Procedure affords the circuit court of Cook County no basis for asserting jurisdiction in the instant case.

The judgment of the circuit court is affirmed.

Affirmed.

PERLIN and HARTMAN, JJ., concur.