author: JUSTICE McGLOON

text:
    TECHNICAL REPRESENTATIVES, INC., Plaintiff-Appellant and Cross-Appellee, v. RICHARDSON-MERRELL, INC., Defendant-Appellee and Cross-Appellant.—(LESTER SCHEDIN, Defendant-Appellee.)
    First District (1st Division)
    No. 81-1902
    Opinion filed July 6, 1982.

      Hamilton Smith and Mark L. Yeager, both of McDermott, Will & Emery, of Chicago, for appellant.
    Michael R. Hassan and Hugh C. Griffin, both of Lord, Bissell & Brook, of Chicago, for appellees.
   JUSTICE McGLOON

delivered the opinion of the court:

Technical Representatives, Inc. (plaintiff), entered into a sales representative agreement with defendant Richardson-Merrell, Inc. Richardson-Merrell terminated the agreement on June 30, 1974. Defendant Lester Schedin was employed by plaintiff prior to June 30, 1974. On July 1, 1974, he began working for Richardson-Merrell. Plaintiff filed suit against Richardson-Merrell for: commissions on shipments made after June 30, 1974, pursuant to orders received before that date (count I); and commissions on sales of which plaintiff was the procuring cause, but which were made after the termination (count II). It filed suit against both Richardson-Merrell and Schedin for: damages on the theory that Schedin persuaded Richardson-Merrell to terminate the agreement and that Richardson-Merrell aided Schedin in the breach of his duty of loyalty (count III); and damages on the theory that Richardson-Merrell and Schedin conspired to maliciously interfere with plaintiff’s contract rights (count IV). The trial court granted summary judgment for RichardsonMerrell and Schedin on counts III and IV. On count I, the trial court entered an order in favor of plaintiff. On count II, it entered an order in favor of Richardson-Merrell. Plaintiff appeals and Richardson-Merrell cross-appeals.

On appeal, plaintiff argues that the trial court erred in granting summary judgment for Richardson-Merrell and Schedin on counts III and IV and in entering an order in favor of Richardson-Merrell on count II. In its cross-appeal, Richardson-Merrell contends that the trial court erred in entering an order in favor of plaintiff on count I.

We affirm.

In its capacity as a sales representative, plaintiff sells the products of various manufacturers and receives commissions on its sales. In March of 1973, plaintiff and Richardson-Merrell (R-M) entered into an agreement pursuant to which plaintiff was to sell luminate molded plastic parts which R-M manufactured. Defendant Lester Schedin was the sales representative assigned to handle R-M’s account.

Under the sales representative agreement, plaintiff was entitled to receive a 1% commission on sales during the period of the agreement. The expiration date of the agreement was June 30, 1974. Thirty days’ written notice was required if either party chose not to extend the agreement beyond June 30, 1974.

In April of 1974, defendant Schedin told Theodore Stoughton, defendant R-M’s sales manager, that he intended to leave the employ of plaintiff and start his own sales agency. Schedin asked Stoughton to consider him as a replacement. On May 24, 1974, Schedin notified Harry Irwin, president of plaintiff corporation, of his intention to leave plaintiff’s employ. On May 28, 1974, R-M officially informed plaintiff that it would not renew the sales representative agreement. On July 1, 1974 Schedin assumed the position plaintiff had held as R-M’s sales representative.

The trial court granted defendants’ motion for summary judgment on counts III and IV and entered judgment in defendant R-M’s favor on count II. On count I, the trial court entered judgment in favor of plaintiff in the amount of $2,771.03.

First, we will address plaintiff’s argument that the trial court erred in granting defendants’ motion for summary judgment on counts III and IV of plaintiff’s complaint. In count III plaintiff alleged that: in February 1973, plaintiff hired defendant Schedin to assist in the representation of certain customers including defendant R-M; at a meeting on or about May 6, 1974, between Schedin and one or more representatives of R-M, Schedin persuaded R-M not to renew its agreement with plaintiff and to hire Schedin as its (R-M’s) representative; Schedin breached his duty of loyalty to plaintiff and R-M aided him in breaching that duty.

In count IV, plaintiff alleged that Schedin was aware of the business relationship between plaintiff and R-M; at a meeting on or about May 6, 1974, Schedin intentionally interfered with the business relationship between plaintiff and R-M by persuading R-M not to renew the agreement with plaintiff; in participating in the meeting and agreeing that Schedin would be employed by R-M as its representative, defendants engaged in a conspiracy to intentionally interfere with the business relationship between plaintiff and R-M.

A plaintiff is not required to prove its case at the summary judgment stage. A plaintiff must, however, present some facts to support the elements of its claim. Mateika v. La Salle Thermogas Co. (1981), 94 Ill. App. 3d 506, 418 N.E.2d 503; Blaylock v. Country Mutual Insurance Co. (1980), 85 Ill. App. 3d 1042, 407 N.E.2d 849.

Defendants’ motion for summary judgment on counts III and IV was based upon deposition excerpts. The deposition testimony of plaintiff’s president, Harry Irwin, reveals that Stoughton had informed him that Schedin planned to start his own business and that he desired to represent R-M. Thus, plaintiff’s allegation that Schedin “persuaded” R-M not to renew its contract with plaintiff was pure speculation.

Schedin did not work for R-M while he was still employed by plaintiff. His contract with R-M began after he left plaintiff’s employ and after plaintiff’s contract with R-M had expired. Even if Schedin did tell R-M that he wanted to replace plaintiff as R-M’s sales representative, he was engaging in proper business competition by lawful means. (See generally Ellis & Marshall Associates, Inc. v. Marshall (1973), 16 Ill. App. 3d 398, 306 N.E.2d 712; Revcor, Inc. v. Fame, Inc. (1967), 85 Ill. App. 2d 350, 228 N.E.2d 742.) The trial court, therefore, was correct in granting defendants’ motion for summary judgment on counts III and IV.

Second, plaintiff argues that the trial court erred in entering judgment in defendant R-M’s favor on count II. In count II, plaintiff alleged that it was entitled to commissions on certain sales made after the expiration date of the agreement between plaintiff and R-M. Plaintiff maintains that it was the procuring cause of those sales and, as such, was entitled to commissions on those sales.

The procuring cause rule has been stated in Richer v. Khoury Brothers (7th Cir. 1965), 341 F.2d 34, and Heuvelman v. Triplett Electrical Instrument Co. (1959), 23 Ill. App. 2d 231, 161 N.E.2d 875. Under the rule, a party may be entitled to commissions on sales made after the termination of a contract if that party procured the sales through its activities prior to termination. The rule applies, however, only if the contract does not expressly provide when commissions will be paid.

The contract involved in the instant case expressly provided that plaintiff would receive commissions “on sales during the period of this agreement.” The contracts considered in Richer and Heuvelman contained no such language. The procuring cause rule is inapplicable here, and the trial court, therefore, did not err in finding that plaintiff was not entitled to commissions on sales made after the June 30, 1974, expiration date of the agreement.

In its cross-appeal, defendant R-M argues that the trial court erred in entering judgment in plaintiffs favor on count I of the complaint. Plaintiff was awarded $2,131.56 in commissions for orders obtained before but not shipped until after the June 30,1974, expiration date. Defendant contends that a sale does not take place until the goods are actually shipped and plaintiff, therefore, is entitled to no commissions on sales of goods shipped after the expiration date. To support this contention, R-M quotes the deposition testimony of Harry Irwin. R-M states that Irwin admitted that “for purposes of commission payment a sale was not considered as having occurred until the goods were shipped.” A review of Irwin’s testimony, however, shows that he said nothing specifically regarding when a sale occurs. He simply stated that plaintiff was paid upon the shipment of merchandise and that if something were sold but not shipped there would be no commission.

The contract provided that plaintiff was entitled to a 7% commission “on sales during the period of this agreement.” R-M has advanced no convincing argument as to why a sale should not be considered to have been made until the goods are shipped. We find, therefore, that the trial court did not err in awarding plaintiff $2,131.56 in commissions for those sales.

Finally, in its cross-appeal, defendant R-M argues that the trial court erred in awarding plaintiff $639.47 in prejudgment interest. The Illinois interest statute provides that “[creditors shall be allowed to receive at the rate of five (5) per centum per annum for all moneys after they become due on any bond, bill, promissory note, or other instrument of writing * * * (Ill. Rev. Stat. 1979, ch. 74, par. 2.) Citing Russell v. Klein (1977), 46 Ill. App. 3d 660, 361 N.E.2d 65, R-M argues that since there was a good faith dispute as to whether payment was due, an award of prejudgment interest was inappropriate. Cases subsequent to Russell have held that the existence of a good faith dispute has no applicability to cases involving instruments in writing. (See E.M. Melahn Construction Co. v. Village of Carpentersville (1981), 100 Ill. App. 3d 544, 427 N.E.2d 181; KFK Corp. v. American Continental Homes, Inc. (1979), 71 Ill. App. 3d 304, 389 N.E.2d 232; Haas v. Cravatta (1979), 71 Ill. App. 3d 325, 389 N.E.2d 226.) The contract involved herein was an instrument in writing. We choose to adopt the reasoning used in the more recent prejudgment cases. Additionally, we note that R-M has failed to point out any evidence in the record which would support its contention that it withheld payments in good faith. Accordingly, we find that the trial court’s award of $639.47 in prejudgment interest was appropriate.

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

Judgment affirmed.

CAMPBELL, P. J., and GOLDBERG, J., concur.


source: Caselaw Access Project

author: JUSTICE MEJDA

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANTHONY SPENCER, Defendant-Appellant.
    First District (5th Division)
    No. 80-2533
    Opinion filed July 9, 1982.

      Marshall R. Weinberg, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Adrienne Noble Nacev, and James Klein, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE MEJDA

delivered the opinion of the court:

Defendant was charged with murder, armed robbery and attempted aggravated kidnapping, tried by a jury, and found guilty on all charges. He was sentenced to 40 years imprisonment. Defendant appeals.

Defendant raises three issues on appeal: (1) whether the police had probable cause to arrest him; (2) whether the court erred in allowing the prosecutor to cross-examine defendant’s alibi witnesses as to their failure to testify at the preliminary hearing; and (3) whether the prosecutor’s remarks during closing argument were so improper as to deny the defendant a fair trial.

An abbreviated statement of facts follows. Additional evidence necessary to the resolution of each issue will be given as needed. During the evening of August 2, 1979, Dr. Ng Lun, of Windsor, Ontario, his wife Threse, his daughter Valerie, his son John, and his nephew Victor Seeyave, walked east on Cermak Road to State Street hoping to find a cab to take them to their hotel located on North Lake Shore Drive. They were accosted on State Street by two men, one of whom had a gun. One of the men demanded that Valerie give him her purse. She complied. The purse contained $45-50 in Canadian money and a watch. The man with the gun reached for Threse and said, “Lady, you are coming with me.” In response Dr. Ng Lun tried to pull his wife towards him. When he did so, the man with the gun walked in front of Dr. Ng Lun and shot him. Both men fled following the shooting. Dr. Ng Lun, although now wounded, walked with his family two blocks further down the street when he suddenly collapsed. John and Victor ran down State Street to summon help. Dr. Ng Lun was taken by the police to Mercy Hospital where he died a short time later. While waiting at the hospital Victor and John viewed approximately 90 photographs brought there by the police. Victor singled out only one photograph as looking similar to the assailant.

On August 3,1979, Valerie viewed three lineups. Defendant was only included in the third. She did not identify anyone from the first, stated that a man in the second, lateY identified as Carl Miller, looked similar to the assailant and from the third lineup identified defendant as the perpetrator.

Victor also viewed three lineups on August 3, 1979. He did not identify anyone from the first, and from the second also singled out Carl Miller as looking like the assailant, and from the third lineup identified the defendant as the perpetrator, although he stated at the time of the identification that the defendant’s hair was different from that of the man who did the shooting. Police investigator Johnson described defendant’s hair on the day of the lineup as extremely close to his head and filled with grease. Valerie and Victor viewed the lineups independently of each other.

On March 26, 1980, an assistant State’s Attorney and a police investigator flew to Windsor, Ontario, to show Threse and John six photographs. John identified the defendant’s photograph as that of the man who shot his father. Threse was unable to identify anyone as the assailant from the photographs.

At trial Valerie, John and Victor also made in-court identifications of defendant as the man who shot Dr. NgLun. Threse Ng Lun did not make an in-court identification of defendant.

The defendant called Diego “Eddie” Ghebremediahan, Anthony Brown and Ramon Sims to testify on his behalf. All testified that on the night and at the time in question they were with defendant at Eddie’s home drinking beer. Over defense counsel’s objection the prosecutor asked Brown and Sims why they hadn’t testified at the preliminary hearing held on August 23, 1979. An assistant State’s Attorney later testified, however, that the names of these three defense witnesses were known and included in the felony file folder prepared on the case as early as August 3, 1979.

The defendant’s brother testified that on the night of the crime defendant’s hair had been processed so that it was lying down on his head in waves, and further that defendant had worn his hair in that style for a long time prior to August 2,1979. Although defendant’s home was searched by the police on August 3, 1979, they found nothing there taken in the robbery. Neither Canadian money nor Valerie’s watch were found on defendant’s person when he was arrested. At the time of his arrest defendant was wearing new shoes and a new suit and had purchase receipts totaling $124.63 in his possession.

The jury found defendant guilty of all charges. Defendant appeals.

Opinion

Defendant first contends that the police lacked probable cause to arrest him and that therefore the trial court erred in denying his motion to quash his arrest and suppress evidence.

As stated in People v. Creach (1980), 79 Ill. 2d 96, 101, 402 N.E.2d 228, 230, cert. denied (1980), 449 U.S. 1010, 66 L. Ed. 2d 467, 101 S. Ct. 564, “Probable cause to arrest exists ‘when the facts and circumstances within the arresting officer’s knowledge are sufficient to warrant a man of reasonable caution in believing that an offense has been committed and that the person arrested has committed the offense.’ [Citations.]” Although an uncorroborated tip by an unknown informer is insufficient to establish probable cause, where the tip is independently corroborated by other facts and circumstances, probable cause has been found to exist. (People v. Helms (1978), 67 Ill. App. 3d 729, 385 N.E.2d 127.) Police officers may rely on the tip of a private citizen without independent verification or examination of his reliability. (People v. Bell (1981), 96 Ill. App. 3d 857, 421 N.E.2d 1351.) In deciding the question of probable cause the courts deal with probabilities, the factual and practical considerations of everyday life on which reasonable men, not legal technicians, act. (People v. Walls (1980), 87 Ill. App. 3d 256, 408 N.E.2d 1056.) Whether or not probable cause to arrest exists in a particular case depends upon the totality of the facts and circumstances known to the officers at the time of arrest. A reviewing court will affirm the trial court’s determination unless it is manifestly erroneous. People v. Sanford (1980), 85 Ill. App. 3d 1010, 407 N.E.2d 810.

A hearing was held on defendant’s motion to quash his arrest and suppress evidence. The evidence adduced at that hearing showed that at the time of the arrest Darryl Willey, the arresting officer, knew that two eyewitnesses had stated Carl Miller, whom they had viewed in lineups, looked like but was not the assailant; that Carl Miller told another police officer that he had seen defendant running from the area on the night and at the approximate time of the incident; that foreign money was taken in the robbery; and that an informant unknown to Willey had told another police officer that defendant was seen after the murder with foreign money in his possession. In addition to the information he had from other sources, the arresting officer of his own personal knowledge knew that Carl Miller and the defendant looked alike as he had arrested both in the past. Further, he had arrested the defendant two months earlier for an armed robbery on the very same street in the same neighborhood. In light of the totality of these circumstances, the arresting officer had probable cause to arrest defendant.

Defendant next asserts that the trial court erred in allowing the prosecutor to cross-examine defendant’s alibi witnesses as to their failure to testify at the preliminary hearing. We deem this issue waived, however, as defendant failed to raise this issue in his written post-trial motion for a new trial. (People v. Precup (1978), 73 Ill. 2d 7, 382 N.E.2d 227; People v. Pickett (1973), 54 Ill. 2d 280, 296 N.E.2d 856.) We recognize that improper cross-examination has been deemed plain error for purposes of review “ ‘[w]here the magnitude of the error may result in substantial prejudice to the right of the defendant to a fair trial * * *' [citation].” (People v. Godsey (1978), 74 Ill. 2d 64, 72, 383 N.E.2d 988, 992.) However, in the instant case we fail to see any prejudice accruing from this alleged error, as an assistant State’s Attorney called by the defense testified during trial that the felony file folder he prepared on the case showed that the names of the defendant’s alibi witnesses were known on August 3, 1979, almost three weeks prior to the preliminary hearing. Thus, any possible inference that defendant’s alibi was a recent fabrication for purposes of trial which might have been drawn from the failure of defendant’s alibi witnesses to testify at the preliminary hearing was negated. Therefore, plain error to require reversal is not here applicable.

Lastly, defendant urges that he was denied a fair trial when the court permitted the prosecution to make improper and prejudicial remarks during closing argument. Every defendant is entitled to a trial free from improper comments. (People v. Roberts (1981), 100 Ill. App. 3d 469, 426 N.E.2d 1104.) However, the verdict will not be disturbed on review where such remarks did not constitute a material factor in the conviction or result in substantial prejudice to the accused. (People v. Richard (1980), 88 Ill. App. 3d 247, 410 N.E.2d 459.) In criminal appeals involving questions of improper argument by the prosecutor, each case must be decided upon its own facts. People v. Weathers (1975), 62 Ill. 2d 114, 338 N.E.2d 880.

Defendant particularly ascribes as prejudicial the prosecutor’s allusion to the failure of defendant’s alibi witnesses to testify at the preliminary hearing as a reason for disbelieving them. Reference by the prosecutor to the failure of defendant’s alibi witnesses to testify at the preliminary hearing was clearly improper because a defendant is not required to present his defenses at the preliminary hearing. (People v. Patterson (1976), 44 Ill. App. 3d 894, 358 N.E.2d 1164; cf. People v. Smith (1981), 94 Ill. App. 3d 969, 419 N.E.2d 404.) However, for the reasons previously discussed relative to the cross-examination of the alibi witnesses we fail to see any prejudice accruing from these remarks.

Defendant also complains of the prosecutor’s remarks attacking defendant’s attorney. These included:

“What did Mr. Weinberg have to hide at the beginning of this case?

# # «

An attorney, * * * [w]hen he has neither [the facts nor the law] he will reach out and he will get in the gutter.

* » #

Mr. Weinberg is a hired lawyer. He does not come into court defending the innocent. He comes in when he is paid to come in.

* # #

I don’t know where the money came from for the rest of that clothing. I don’t know where it came from, from a liar of Mr. Weinberg’s caliber.”

The invectives directed at defense counsel during closing arguments were highly improper. (People v. Williams (1981), 99 Ill. App. 3d 919, 425 N.E.2d 1321; People v. Weathers (1975), 62 Ill. 2d 114, 338 N.E.2d 880; People v. Witted (1979), 79 Ill. App. 3d 156, 398 N.E.2d 68.) Defendant argues that these remarks constituted reversible error, citing Weathers, Witted, People v. Monroe (1977), 66 Ill. 2d 317, 362 N.E.2d 295, and People v. Suggs (1977), 50 Ill. App. 3d 778, 365 N.E.2d 1118. In Weathers, in addition to charging defendant’s attorney with lying, the assistant State’s Attorney repeatedly charged that defendant lied, stated that the judge knew that the defendant had committed the crime, and argued facts not in evidence. (Accord, Witted.) In Monroe and in Suggs, the impermissible conduct rose to such a level that it was characterized as creating a trial of the lawyers rather than a determination of the issue of guilt. Although the instant remarks are highly unprofessional and not to be condoned, we do not believe that their gravity reached the magnitude of those found in the cases relied upon by the defendant.

In light of the positive identification of defendant as the perpetrator by three eyewitnesses to the shooting, we do not believe that the improper remarks of the assistant State’s Attorney were a material factor in his conviction and thus do not necessitate reversal. People v. Burnett (1963), 27 Ill. 2d 510, 190 N.E.2d 338; People v. Calderon (1980), 85 Ill. App. 3d 1030, 407 N.E.2d 840; People v. Shorter (1978), 59 Ill. App. 3d 468, 375 N.E.2d 513.

For the reasons cited herein, the judgment of the trial court is affirmed.

SULLIVAN, P. J., and WILSON, J., concur.


author: JUSTICE O’CONNOR

text:
    MADELINE MUSCARE, Plaintiff-Appellant, v. SAMUEL VOLTZ, Defendant-Appellee.
    First District (1st Division)
    No. 80-3011
    Opinion filed July 12, 1982.
    Berkson, Gorov & Levin, Ltd., of Chicago (Arthur M. Gorov, of counsel), for appellant.
    Hoffman, Burke & Bozick, of Chicago (Edmund J. Burke and Gary W. Bozick, of counsel), for appellee.
   JUSTICE O’CONNOR

delivered the opinion of the court:

On May 3,1974, plaintiff, Madeline Muscare, was allegedly injured as a result of a collision between her car, a Chicago Transit Authority (CTA) bus and another car. Plaintiff served the CTA with notice of her claim on September 11, 1974, but did not file suit until November 18, 1975. The complaint named as defendants the CTA, the driver of the bus, Samuel Voltz, and the driver of the second car. The latter defendant’s motion for summary judgment was granted on August 28,1978, and he is no longer a party to this action.

Count I of the complaint is directed against Voltz, individually. It alleges that the bodily injuries and property damages suffered by plaintiff were caused by the negligent operation of a motor vehicle by Voltz. It also alleges that he was an employee of the CTA and was operating the vehicle in the course of his employment with the CTA. The latter allegations are not denied by either Voltz or the CTA. Count III is directed against the CTA. It alleges the CTA owned or leased the vehicle driven by Voltz. It is further charged that the CTA is liable as the result of the negligent operation of the vehicle by its employee, namely Voltz.

On February 27, 1979, both the CTA and Voltz filed a motion to dismiss the complaint based on the one year statute of limitation imposed by section 41 of the Metropolitan Transit Authority Act (Ill. Rev. Stat. 1979, ch. 111 2/3, par. 341). This section provides:

“No civil action shall be commenced in any court against the Authority by any person for any injury to his person unless it is commenced within one year from the date that the injury was received or the cause of action accrued.”

The motion was granted as to the CTA, but was denied as to Voltz. A motion for rehearing by Voltz was denied on March 26, 1979. After the case had been assigned to a trial judge, defendant Voltz renewed his motion to dismiss.

On October 24, 1980, the trial court entered an order dismissing plaintiff’s complaint as to Voltz. The court determined that the CTA’s dismissal operated as an adjudication upon the merits (73 Ill. 2d R. 273) and, therefore, the claim against Voltz must fall under the doctrine of respondeat superior. (Towns v. Yellow Cab Co. (1978), 73 Ill. 2d 113, 382 N.E.2d 1217.) The trial court specifically found:

“In the application of the principle laid down in Towns to the facts and circumstances before the Court, the application of Sec. 48(1)(e) of the C.P.A. [Ill. Rev. Stat. 1979, ch. 110, par. 48(1) (e)] and Supreme Court Rule 273, your [Voltz’] motion ‘to Dismiss Plaintiff’s Complaint’ is hereby sustained as a matter of law.”

Plaintiff appeals, contending that the dismissal of the CTA was not an adjudication on the merits and that Rule 273 is inapplicable to this case. Rule 273 (73 Ill. 2d R. 273) provides:

“Unless the order of dismissal or a statute of this State otherwise specifies, an involuntary dismissal of an action, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join an indispensable party, operates as an adjudication upon the merits.”

Plaintiff argues that the CTA’s dismissal was for a lack of jurisdiction within the meaning of Rule 273 because of her failure to satisfy the “precondition of filing her action in a timely fashion.” This theory is derived from the fact that Rule 273 is based upon Rule 41(b) of the Federal Rules of Civil Procedure. (73 Ill. 2d R. 273, Committee Comments.) Plaintiff relies upon Federal cases interpreting Fed. R. Civ. P. 41(b). (See, e.g., Costello v. United States (1961), 365 U.S. 265,5 L. Ed. 2d 551, 81 S. Ct. 534.) No Illinois cases are cited for this proposition.

An ordinary statute of limitations is an act limiting the time within which legal action shall be brought and affects the remedy only and not the substantive right. (Cookv. Britt (1972), 8 Ill. App. 3d 674, 290 N.E.2d 908.) Thus, the bar of a general statute of limitations is a procedural issue (Santucci Construction Co. v. Metropolitan Sanitary District (1977), 55 Ill. App. 3d 376, 371 N.E.2d 53) and, as such, may therefore be waived. Wood Acceptance Co. v. King (1974), 18 Ill. App. 3d 149,309 N.E.2d 403.

A special limitation, on the other hand, may be contained within a statute that creates rights unknown to common law. (Levine v. Unruh (1968), 99 Ill. App. 2d 94, 240 N.E.2d 521.) The limitation thus fixes a time within which the action may be commenced and is more than a remedial restriction. In such an instance, the time limitations in statutory causes of action are considered a condition of the liability itself and not one of remedy only. Levine v. Unruh; Wood Acceptance Co. v. King; Wilson v. Tromly (1949), 404 Ill. 307, 89 N.E.2d 22.

Even though section 41 of the Metropolitan Transit Authority Act prescribes a different limitation period by statute (compare Ill. Rev. Stat. 1945, ch. 83, par. 15), it is still to be considered a statute general in its terms. (See Serafini v. Chicago Transit Authority (1979), 74 Ill. App. 3d 738, 393 N.E.2d 1120.) The Metropolitan Transit Authority Act established a municipal corporation, the CTA, vested with the power to own, operate and maintain a transit system in the metropolitan area of Cook County. (People v. Chicago Transit Authority (1945), 392 Ill. 77, 64 N.E.2d 4.) No statutory right of action was created by this legislative act. The right to sue a common carrier for injuries was not unknown to common law.

The trial court’s dismissal of the CTA because of plaintiff’s failure to comply with the one-year limitation in section 41 of the Metropolitan Transit Authority Act was, therefore, not a dismissal for lack of jurisdiction within Rule 273. Nor does section 41 specify that such a dismissal does not operate as an adjudication upon the merits.

In Towns v. Yellow Cab Co. (1978), 73 Ill. 2d 113, 382 N.E.2d 1217, the court held that a dismissal for failure to comply with court orders concerning discovery operated as an adjudication upon the merits. The reasoning of the court in so finding is equally applicable to the dismissal here for failure to comply with the one-year limitation of section 41 of the Metropolitan Transit Authority Act. That dismissal operates as an adjudication upon the merits as to the CTA.

Further, under Towns, that dismissal operates as res judicata as to defendant Voltz. The action against the CTA was founded on the theory of respondeat superior. The CTA’s liability was predicated solely on the acts of its employee Voltz. The CTA was not charged with any independent wrongdoing. Neither Voltz nor the CTA denied the existence of the agency relationship. Nor was Voltz charged with any independent wrongdoing; he was sued only for his operation of the CTA vehicle while in the course of his employment. Thus, the liability of the CTA and Voltz for the acts of Voltz “is deemed that of one tortfeasor and is a consolidated or unified one.” (Towns v. Yellow Cab Co. (1978), 73 Ill. 2d 113, 124, 382 N.E.2d 1217, citing Aldridge v. Fox (1952), 348 Ill. App. 96, 108 N.E.2d 139.) The court in Towns further reasoned (73 Ill. 2d 113, 124):

As such, any legal claim against the master must be said to be identical to that which the plaintiff may have asserted against the servant. The operative facts which comprise the alleged bases for liability of the master are identical to those which would prove the servant liable. Indeed, if the agency relationship is not in dispute, any act of the servant which renders the master liable also renders the servant liable. A judgment, therefore, adjudicating the master not liable, where a judgment to the contrary could have only resulted from a finding that the servant committed an actionable wrong against the plaintiff, is a judgment in legal effect that the servant is not liable. (See Caldwell v. Kelly (Tenn. 1957), 302 S.W.2d 815.) As was held in the frequently cited case of Emery v. Fowler (1855), 39 Me. 326, 63 Am. Dec. 627, to hold otherwise would allow the plaintiff to have two trials for the same cause of action.”

There was no dispute here as to the agency relationship between the CTA and Voltz. The trial court, therefore, correctly dismissed the complaint against Voltz. The judgment of the circuit court of Cook County is affirmed.

Affirmed.

GOLDBERG and McGLOON, JJ., concur.


author: PRESIDING JUSTICE CAMPBELL

text:
    LEOLA CLARK, Plaintiff-Appellee, v. MARVIN COVINGTON, Defendant-Appellant.
    First District (1st Division)
    No. 81-1725
    Opinion filed July 12, 1982.
    Martin Tiersky, of Lincolnwood, for appellant.
    Joseph L. Dombrowski, of Chicago (Joan Sorensen, of counsel), for appellee.
   PRESIDING JUSTICE CAMPBELL

delivered the opinion of the court:

Plaintiff, Leola Clark, brought this action seeking partition of certain real property which she and defendant, Marvin Covington, owned in joint tenancy. The trial court granted plaintiff’s request for partition and ordered the appointment of an appraiser to ascertain the rental value of the property for the time that defendant was in sole possession of the property. On appeal, defendant raises the following issues: (1) whether the trial court had authority to appoint an appraiser for the purpose of determining the rental value of the premises; and (2) whether the trial court erred in accepting the report of the appraiser.

The record discloses that plaintiff and defendant purchased a home in Chicago, Illinois, in 1971 with title to the property taken in the names of “Marvin Covington and Leola Covington, his wife,” as joint tenants. In October 1978, plaintiff brought this action for partition of the parties’ real property pursuant to statute. (Ill. Rev. Stat. 1977, ch. 106, par. 44 et seq.) Plaintiff also sought “such other and further or different relief herein as the court shall deem equitable and proper.” At trial, the parties’ testimony established that they lived together in the home from August 1971 until April 1974, at which time plaintiff moved out. Thereafter, defendant had sole possession of the premises. Following the close of the evidence, the court entered an order granting partition of the parties’ property. The court also informed the litigants that it intended to appoint an appraiser to ascertain the rental value of the property for the time that defendant was in sole possession of the premises. An order appointing the appraiser was entered July 8, 1980. On October 6, defendant moved to vacate the appointment of the appraiser on the grounds that the appointment of an appraiser in a partition action was not authorized by statute, that the appointment violated the constitutional prohibition against fee officers and that neither the pleadings nor evidence demonstrated that plaintiff was entitled rental for the property. The court denied defendant’s motion on October 24. In January 1981, following a hearing on the appraiser’s report, the court denied defendant’s motion to strike the report. On February 9, the court appointed a commissioner and found, inter alia, that a reasonable rental of $8,751.81 be assessed against defendant’s interest in the property for the period that defendant had sole possession of the property. On June 12, 1981, the court, having approved the commissioner’s report of May 15, ordered that the property be sold with the proceeds of sale being divided pursuant to the court’s order of February 9. Defendant appeals from the court’s orders pertaining to the appointment of the appraiser, and its finding that a rental charge be assessed against defendant’s interest in the property.

Defendant contends that the trial court erred in appointing an appraiser to determine the rental value of the property for the time that defendant was in sole possession of the property. Defendant argues that plaintiff’s complaint failed to request any relief or credit for rent and that plaintiff did not present any evidence at trial to warrant the award of rent to plaintiff. Defendant maintains that the appointment of the appraiser violates the Illinois constitutional provision which prohibits the appointment of fee officers. (Ill. Const. 1970, art. VI, sec. 14.) Defendant also urges that the appointment of an appraiser is not authorized by statute.

Plaintiff argues that in partition suits, as in other equitable matters, it is the province of the court to make findings of fact and to decide the equities. Plaintiff maintains that in the instant case, the evidence was uncontroverted that defendant had sole possession of the premises from 1974 to the time of the trial. She contends that since she was not in possession of the property during that time, she suffered detriment. Plaintiff urges that based on this evidence, the court properly found that she was entitled to a reasonable rental value for the time that she did not have possession of the property. Plaintiff also argues that defendant failed to object to the appointment of the appraiser until after the appraiser’s report had been submitted. Plaintiff urges that the appointment of an impartial expert is within the sound discretion of the trial court.

An examination of the general principles pertaining to joint tenancy discloses that, subject to the rights of his cotenants, a tenant is entitled to use and enjoy jointly owned property as though he were the sole owner of the property. (Massman v. Duffy (1947), 333 Ill. App. 30, 76 N.E.2d 547.) In order to render one cotenant liable to another cotenant for the rent or use of jointly owned property, there must be something more than mere occupancy of the property by one and forebearance from occupancy by another. Boley v. Barutio (1887), 120 Ill. 192, 11 N.E. 393.

In the instant case, plaintiff has conceded that her complaint did not allege facts or include a prayer for relief which indicated that she was seeking rent from defendant. Plaintiff also has conceded, both in her brief and during oral argument, that she did not proffer any evidence on the issue of rent, but argues that testimony that defendant was in sole possession after April 1974 was sufficient to sustain the trial court’s decision. The evidence established that plaintiff voluntarily vacated the premises in April 1974 and that, thereafter, defendant occupied the home by himself. Plaintiff has not cited any authority to support her claim that she was automatically entitled to receive rent from defendant after she voluntarily left the home. Since defendant was entitled to the exclusive use of the home after plaintiff voluntarily moved out of the home, plaintiff was not entitled to receive rent from defendant for the time that defendant was in sole possession of the home. See Anderson v. Anderson (1978), 62 Ill. App. 3d 468, 378 N.E.2d 1079.

The evidence in this case as disclosed by the record did not warrant or sustain the finding that plaintiff was entitled to receive rent from defendant since neither the pleadings nor proofs demonstrated that she was entitled to receive rent from defendant. Accordingly, we reverse those orders of the trial court as they pertain to the appointment of the appraiser and the acceptance of his report and the finding of the trial court that plaintiff was entitled to receive rent from defendant. Because of our decision, we find it unnecessary to consider the other issues raised by defendant in this appeal. Therefore, this cause is remanded to the circuit court of Cook County for further proceedings consistent with the views expressed herein.

Judgment reversed and remanded.

McGLOON and GOLDBERG, JJ., concur.


author: JUSTICE McGILLICUDDY

text:
      In re MARRIAGE OF JANINA HAPANIEWSKI, Petitioner-Appellee, and STANISLAW JAN HAPANIEWSKI, Respondent-Appellant.
    First District (3rd Division)
    No. 80-19
    Opinion filed June 2, 1982.
    Rehearing denied August 11, 1982.

      Saul R. Leibowitz, of Reilly, Sentman, Woolley & Leibowitz, of Chicago, for appellant.
    Michael H. Lavin, of Chicago (Alan Michael Katz, of counsel), for appellee.
   JUSTICE McGILLICUDDY

delivered the opinion of the court:

This appeal is taken from the judgment of dissolution of the marriage of Janina Hapaniewski, the petitioner, and Stanislaw Jan Hapaniewski, the respondent. The sole issue on appeal is whether the trial court erred in dividing the property of the parties.

The petitioner and respondent were married on February 16, 1966. Four children, ranging in age from 6 to 12 years at the time of trial, were born to the parties during the marriage. Neither the petitioner, who was 32 years of age, nor the respondent, who was 44 years of age and a disabled American veteran, were employed. The parties acquired two pieces of real property during the marriage — rental property, located in Chicago, and a single-family residence, located in Summit, Illinois. Legal title to both properties was held by the petitioner and respondent in joint tenancy, and both buildings were encumbered by a combined mortgage having a balance of $39,173.20. The monthly mortgage payment was $372.

At trial, the respondent was called as an adverse witness. He testified that the Chicago property was acquired in June 1968 at a price of $19,500 while he was employed and before he received Veterans’ Administration benefits. Mortgage insurance on the $16,500 mortgage was obtained; and when the respondent was declared disabled in 1970, proceeds from that policy reduced the mortgage to about $3,500. The respondent stated that the remaining mortgage was paid with his veterans’ benefits. He further stated that the down payment on the Chicago property was $3,000 and that he accumulated that money by cashing in two life insurance policies and some bonds that he had purchased during his marriage. He denied that he saved $1,000 and had borrowed $2,000 from relatives. The Summit property was acquired at a purchase price of $39,000 or $40,000.

The respondent further testified that he was receiving Veterans’ Administration benefits of $973 per month but that his benefits were to be reduced to $924 per month. He also received $410 a month from the Social Security Administration and $195 per month in rental income from the rental of two of the four apartments on the Chicago property. The respondent lived in the third apartment and had collected rent of $95 per month for the fourth apartment until the tenants vacated that apartment the previous month. The respondent testified that the mortgage payments were in arrears for three months. He stated that during this three-month period he had spent his income on his children during his visitation with them and that he spent about $200 a week on food, $17 a month on water bills, $10 or $20 a month for electricity and was due to make a car insurance payment of $43. The respondent also testified that he owed $1,600 to his sister; $75 to his brother; $2,900 on a charge card; and $66 for a telephone bill.

The petitioner testified that the $3,000 down payment on the Chicago property was made with $1,000 from the respondent’s savings and $2,000 that he had borrowed. She did not know whether her husband had a life insurance policy when the Chicago building was purchased and stated that the respondent did not own stocks or bonds at that time. The petitioner further testified that during her marriage to the respondent, the family’s weekly food bill was $80 to $85. She stated that her outstanding bills amounted to $71 for gas, $16 to $20 for electricity, and $563 for hospital and doctor’s services for her son. The petitioner’s only income was $467 a month from the Social Security Administration for her children and $30 per week from her brother who was living with her.

Based upon the testimony presented at trial, the court awarded the petitioner custody of the four children and both parcels of real estate which he valued at approximately $91,000 and determined the equity to be between $50,000 to $55,000. The petitioner and the respondent were barred from maintenance, and the court reserved ruling on child support. The parties were awarded the furniture in their possession and were ordered to pay equally the mortgage arrearages.

The respondent contends that the award of both parcels of real estate to the petitioner was error because it violated Federal and State law. He argues that under Federal law, military benefits are nonmarital property and should not be considered in the division of marital property. It is the respondent’s position that the trial court violated this law by awarding the petitioner both pieces of real estate as an offset to his Veterans’ Administration benefits. The respondent also contends that under Illinois law both pieces of property were his nonmarital property as they were acquired with his military benefits.

The first issue we must deal with is whether the respondent’s military disability benefits are marital property. The petitioner contends that in accordance with In re Marriage of Smith (1980), 84 Ill. App. 3d 446, 405 N.E.2d 884, the respondent’s disability benefits were marital property because they were acquired during the marriage and because they did not meet any statutory exceptions set forth in section 503(a) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 503(a)).

Smith is not conclusive as to the issue raised herein since Smith was concerned with a nonmilitary disability pension which was not created by Federal law. We believe that Federal law has preempted all State law on the subject of whether military benefits are marital or community property. In McCarty v. McCarty (1981), 453 U.S. 210, 69 L. Ed. 2d 589,101 S. Ct. 2728, the United States Supreme Court held that Federal law precludes a State court from dividing military nondisability retirement pay pursuant to State community or marital property laws. In reaching such a conclusion, the court examined the applicable Federal statutes and determined that the military retirement benefits in question were “ ‘a personal entitlement payable to the retired [military] member himself as long as he lives.’ ” 453 U.S. 210, 224, 69 L. Ed. 2d 589, 601, 101 S. Ct. 2728, 2737 (quoting from S. Rep. No. 1480, 90th Cong., 2d Sess. 6 (1968)).

An examination of the legislative scheme applicable in the instant case leads to a similar conclusion with regard to a veteran’s disability benefits. Such benefits also are payable to the veteran (see, e.g., 38 U.S.C. secs. 310, 314, 315, 331, 334 (1976 & Supp. Ill 1979)); and, as with military retirement pay, military disability payments cannot be attached or assigned (see 37 U.S.C. sec. 701(c) (1976); 38 U.S.C. sec. 3101(a) (1976); cf. 42 U.S.C. sec. 659 (Supp. Ill 1979) (Federal benefits may be subject to legal process to enforce child support or alimony obligations)). Further support for such a conclusion is found in the legislative history of the veterans’ disability compensation program. The basic purpose of that program is to provide relief from the impaired earning capacity of veterans disabled as the result of their military service. (H.R. Rep. No. 96-1155, July 2, 1980, 1980 U.S. Code Cong. & Ad. News 3307, 3310 (hereinafter cited as H.R. Rep. No. 96-1155); see State ex rel. Eastern State Hospital v. Beard (Okla. 1979), 600 P.2d 324.) In furtherance of this purpose and to ensure the purchasing power of the disabled veteran, Congress historically has increased the compensation rates whenever there has been an appreciable increase in the cost-of-living index. (H.R. Rep. No. 96-1155, at 3311, 3316.) We believe that the classification of a veteran’s disability benefits as marital property would diminish the benefits that Congress has said should go to the veteran and would cause an injury to Federal interests which is forbidden by the supremacy clause of the Federal Constitution (U.S. Const., art. VI, cl. 2). (See McCarty v. McCarty; Hisquierdo v. Hisquierdo (1979), 439 U.S. 572, 59 L. Ed. 2d 1, 99 S. Ct. 802.) Thus, we hold that the respondent’s veterans’ disability benefits are his nonmarital assets.

It is clear from the record in the case at bar that the trial court did not find the respondent’s military disability benefits to be marital property. The respondent contends, however, that the trial court attempted to overcome the prohibition against treating his benefits as marital property by awarding the petitioner both parcels of property to offset his cash benefits. The respondent argues that a similar division of property was rejected by the Supreme Court in Hisquierdo v. Hisquierdo wherein the court held that retirement benefits under the Federal Railroad Retirement Act of 1974 (45 U.S.C. sec. 231 et seq. (Supp. IV 1974)) were not community property and that Federal law would have been violated if the employee’s spouse was awarded a portion of those benefits or if the employee’s spouse was awarded other community property to offset his or her interest in those benefits.

We believe that the respondent’s reliance on Hisquierdo is misplaced since the offset argument therein was premised on the assumption that the railroad retirement benefits were community property. In the case at bar, the respondent’s disability benefits were not classified as marital property, and the court did not award the real estate to the petitioner as an offset to her interest in the respondent’s disability benefits.

The respondent’s interest in the disability benefits was a factor properly considered by the trial court when, after determining the real estate to be marital property, it awarded the properties to the petitioner. Section 503(c) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 503(c)) provides for the division of marital property:

“* * * without regard to marital misconduct in just proportions considering all relevant factors, including:

(1) the contribution or dissipation of each party in the acquisition, preservation, * * * of the marital and non-marital property, including the contributions of a spouse as a homemaker or to the family unit;

(2) the value of the property set apart to each spouse;

(3) the duration of the marriage;

(4) the relevant economic circumstances of each spouse when the division of property is to become effective, including the desirability of awarding the family home, or the right to live therein for reasonable periods, to the spouse having custody of the children;

e * *

(7) the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, needs of each of the parties;

(8) the custodial provisions for any children;

(9) whether the apportionment is in lieu of or in addition to maintenance; and

(10) the reasonable opportunity of each spouse for future acquisition of capital assets and income.”

In accordance with section 503(c), the respondent’s receipt of veterans’ benefits, as nonmarital property set aside to him, was a factor to be considered in the division of the marital property. (In re Marriage of Meyer (1981), 103 Ill. App. 3d 44, 430 N.E.2d 610; In re Marriage of Ellis (1975), 36 Col. App. 234, 538 P.2d 1347.) Error was committed, however, when the trial court did not determine a value for the respondent’s non-marital property. (See In re Marriage of Donley (1980), 83 Ill. App. 3d 367, 403 N.E.2d 1337; In re Marriage of Wildin (1977), 39 Col. App. 189, 563 P.2d 384.) The value of the respondent’s veterans’ benefits would of course depend upon such factors as the respondent’s life expectancy and the present value of future increased benefits. Absent such a valuation, we do not believe that the marital property of the parties could have been equitably divided, and, therefore, we find it necessary to remand this case for further proceedings.

We do not mean to intimate, however, that the marital properties of the parties could never be awarded in their entirety to the petitioner. There is no requirement in Illinois that marital property be divided equally (In re Marriage of Atkinson (1980), 82 Ill. App. 3d 617, 402 N.E.2d 831, aff'd in part, vacated in part, appeal dismissed in part (1981), 87 Ill. 2d 174, 429 N.E.2d 465, cert. denied (1982),_U.S__, 72 L. Ed. 2d 162, 102 S. Ct. 1751), and it is possible for one party to receive all the marital assets as his or her “just proportion” (see In re Marriage of Lloyd (1980), 81 Ill. App. 3d 311, 401 N.E.2d 328). In accordance with section 503(c) of the Illinois Marriage and Dissolution of Marriage Act, the petitioner was entitled to a significant portion of the marital property due to her contributions as a homemaker for the duration of the marriage, the custody award of the four children, the petitioner’s limited employment resources due to time restraints and minimal occupational qualifications, and the absence of a maintenance award. Also, courts are encouraged to provide for the financial needs of the spouses by property distribution rather than by an award of maintenance. (Ill. Ann. Stat., ch. 40, par. 503, Historical & Practice Notes, at 467-68 (Smith-Hurd 1980); see In re Marriage of Lee (1979), 78 Ill. App. 3d 1123, 398 N.E.2d 126.) Thus, we believe it to be conceivable that the petitioner could be awarded the primary marital assets; we merely hold that such an award was inappropriate without an evidentiary determination of the value of the respondent’s nonmarital assets.

The final argument made by the respondent in this appeal is that the trial court incorrectly determined that the Chicago and Summit properties were marital assets. The respondent contends that the properties were his nonmarital assets as they were acquired with his disability benefits which were his nonmarital assets.

According to the evidence presented at trial, the Chicago property was acquired in 1968 while the respondent was employed. The respondent did not receive veterans’ benefits until 1970. While the evidence conflicts as to the sources of the down payment on that property, it is clear from the record that no portion of the down payment came from the respondent’s veterans’ benefits. It is also clear from the record that some marital funds were applied toward the acquisition of that property. Any nonmarital disability benefit payments that were subsequently applied to the mortgage on that property were transmuted into marital property because they were commingled with marital assets. In re Marriage of Smith (1981), 86 Ill. 2d 518, 427 N.E.2d 1239; In re Marriage of Smith (1981), 102 Ill. App. 3d 769, 430 N.E.2d 364.

Similarly, the Summit property became marital property when it was purchased via a combined mortgage with the Chicago property which was itself marital property. Furthermore, when property is acquired during marriage and when title is taken in joint tenancy, there is a presumption that the property is marital property. (Atkinson v. Atkinson (1981), 87 Ill. 2d 174, 429 N.E.2d 465.) This is true even where one of the spouses has furnished all of the consideration using nonmarital funds. (In re Marriage of Rogers (1981), 85 Ill. 2d 217, 422 N.E.2d 635.) As the respondent did not overcome this presumption (Ill. Rev. Stat. 1979, ch. 40, par. 503(b)), and as the evidence presented at trial supports a contrary position, we conclude that the trial court correctly held both parcels of property to be marital property.

For the foregoing reasons, the judgment of the circuit court of Cook County is reversed and the cause is remanded for further proceedings in accordance with the views expressed herein.

Reversed and remanded.

WHITE, P. J., and McNAMARA, J., concur.

       The reason for the reduction in benefits was not elicited at trial. However, in August of 1979, when the trial occurred, a totally disabled veteran with a spouse and four children was entitled to monthly compensation of $973. A totally disabled veteran with four children and no spouse was entitled to $924 per month. (38 U.S.C. secs. 314, 315 (1976), as amended by Act of Oct. 18, 1978, Pub. L. 95-479, title I, secs. 101(a), 102(a), 92 Stat. 1560, 1562 (1978).) Thus, it would appear that the reduction of benefits to the respondent would be due to the dissolution of his marriage to the petitioner.

       The respondent’s total disability was service-connected.

       From 1917 to 1978, for example, the cumulative increase in compensation paid to totally and permanently disabled service-connected unmarried veterans was more than 911 percent. H.R. Rep. No. 96-1155, July 2, 1980, 1980 U.S. Code Cong. & Ad. News 3307, 3311-12.


author: JUSTICE PERLIN

text:
    LOLA DIAL, Plaintiff-Appellant, v. MARIO MIHALIC, Defendant-Appellee.
    First District (2nd Division)
    No. 81-1530
    Opinion filed June 29, 1982.

      Henslee, Monek & Henslee, of Chicago (John J. Naughton and Daniel J. Downes, of counsel), for appellant.
    Rooks, Pitts, Fullagar & Poust, of Chicago (John G. Poust and Christine M. Wheelock, of counsel), for appellee.
   JUSTICE PERLIN

delivered the opinion of the court:

Plaintiff, Lola Dial, appeals the trial court’s order dismissing with prejudice her third amended complaint filed against defendant, Mario Mihalic. The issue presented for review is whether plaintiff’s complaint states a cause of action. For the reasons which follow, we affirm in part, reverse in part and remand for further proceedings consistent with this opinion.

Plaintiff’s lawsuit arose out of an accident which occurred on the evening of March 1, 1977. At the time of the accident plaintiff was the tenant of apartment 501 in a building owned by defendant and was visiting another tenant in apartment 504 of the same building. Plaintiff’s third amended complaint alleged that plaintiff was standing in the kitchen preparing food in the oven of an electric stove supplied for the apartment by defendant when the oven door suddenly and unexpectedly fell open from a closed vertical position to an open horizontal position due to a failure of the oven door securing mechanisms to hold the door in a closed position. The opening of the door startled plaintiff, who tripped and fell backwards onto the hot surface of the opened door causing her to suffer severe and permanently disfiguring burns. Plaintiff brought a tort action against defendant, landlord and lessor of the apartment in which plaintiff was injured, alleging that defendant had breached his duties under the terms of a lease which defendant had entered into with the tenant in whose apartment the accident had taken place. In an affidavit attached to her complaint plaintiff averred that she was not able to secure a copy of the lease for apartment 504 and therefore submitted her own lease (for apartment 501) which, except for certain details not relevant here, contained the same provisions. Paragraph 6 of the lease (Exhibit I) states in part:

“C. Lessor covenants that at all times during the Term hereof, the Lessor shall maintain the Apartment and the Building to the following minimum standards:
# # e
(5) Gas and/or electrical appliances which are supplied by Lessor in good working order, appropriate gas piping and electrical wiring system to the extent existing in the Building maintained in good working order and safe condition.”

Plaintiff claimed that by virtue of this covenant, “defendant expressly assumed the duty to maintain the aforesaid stove, which defendant as Lessor had supplied, in good working order and safe condition” and that defendant breached this duty, which breach resulted in serious injuries to plaintiff. Paragraph 10 of the complaint alleged that “prior to said occurrence, defendant had been notified that said stove was not in good working order and was not in safe condition, but notwithstanding said notice, defendant had failed and refused to repair and maintain said stove in violation of said express covenant to do so.” Paragraph 11 asserted that defendant was guilty of one or more of the following “careless and negligent acts and/or omissions:”

“(a) Failed to properly and adequately maintain the appliances provided in the apartment;
(b) Failed to advise plaintiff or post any notice of the defective condition of the stove;
(c) Failed to heed complaints that said stove was not in good working order and was not in safe condition, and failed and refused to repair and maintain said stove in violation of express covenant to do so.”

In subparagraph (d) plaintiff advanced a res ipsa loquitur theory of recovery. Paragraph 12 claimed that plaintiff’s injuries were directly and proximately caused by defendant’s acts and/or omissions. Plaintiff sought more than $15,000 in damages.

Defendant filed a motion to dismiss the third amended complaint alleging that (1) the lease agreement imposed no duty of repair which would give rise to an action for damages arising out of personal injuries; (2) plaintiff lacked standing to pursue an action for breach of an alleged covenant in the lease; (3) the complaint failed to allege compliance with the written notice requirements of the lease; (4) the lease imposed no duty to maintain the stove in a safe condition; and (5) defendant did not owe plaintiff any common law duty of ordinary care with respect to the appliance in question.

On February 25, 1981, a hearing was held on defendant’s motion to dismiss the third amended complaint. The trial court asked the parties to brief the issue of the requirement of written notice. After a final hearing, plaintiff’s complaint was dismissed with prejudice in an order entered May 29, 1981.

Under paragraph 6C(5) of the lease, defendant covenanted to maintain the electrical appliances in good working order “at all times during the Term” of the lease. Plaintiff’s first argument on appeal is that damages for personal injuries are recoverable for breach of this covenant. Plaintiff relies principally upon the decision in Looger v. Reynolds (1975), 25 Ill. App. 3d 1042, 324 N.E.2d 238, where the court adopted section 357 of the Restatement (Second) of Torts (1965). Section 357 states:

“A lessor of land is subject to liability for physical harm caused to his lessee and others upon the land with the consent of the lessee or his sublessee by a condition of disrepair existing before or arising after the lessee has taken possession if

(a) the lessor, as such, has contracted by a covenant in the lease or otherwise to keep the land in repair, and

(b) the disrepair creates an unreasonable risk to persons upon the land which the performance of the lessor’s agreement would have prevented, and

(c) the lessor fails to exercise reasonable care to perform his contract.” Restatement (Second) of Torts sec. 357 (1965).

As set forth in Looger, three rationales have been advanced in support of acceptance for the Restatement rule:

“(1) The landlord, by the agreement to repair, reserved a privilege to entry and supervision of the premises by virtue of which he retained ‘control’ of the premises and ought to be liable as an occupier of the land; (2) the lessor by his promises, induced the tenant to forego repairs of his own, and so by his misleading undertaking has made himself responsible for the consequences; and (3) the landlord stands in a special relation to the tenant and, by entering into the covenant to repair, undertakes an additional responsibility which extends the relationship.” (Looger v. Reynolds (1975), 25 Ill. App. 3d 1042-43, 324 N.E.2d 238, 239. See also Dean v. Hershowitz (1935), 119 Conn. 398, 177 A. 262; Prosser, Law of Torts sec. 63 (4th ed. 1971).

Defendant questions the precedential value of Looger on a number of grounds none of which has merit. Defendant first states that “despite the fact that [Looger] purported to adopt what was a radical change in Illinois law, defendant has not been able to find any other decisions in which another Illinois court actually applied Section 357 of the Restatement.” We note, however, that subsequent to Looger, two other decisions apparently have accepted section 357 as a valid statement of Illinois law. (See Hurt v. Pershing Mobile Home Sales, Inc. (1980), 83 Ill. App. 3d 724, 726, 404 N.E.2d 842; Dapkunas v. Cagle (1976), 42 Ill. App. 3d 644, 647, 356 N.E.2d 575.) Although neither opinion found section 357 applicable to the facts of the particular case, both acknowledged that a cause of action for personal injuries may be based on section 357.

Moreover, we cannot agree with defendant that Looger effected “a radical change in Illinois law.” In adopting section 357 of the Restatement (Second) of Torts (1965), the Looger court relied in part on Moldenhauer v. Krynski (1965), 62 Ill. App. 2d 382, 210 N.E.2d 809, where a tenant was allowed to recover damages in tort for personal injuries proximately caused by the landlord’s failure to perform a promise to repair and Lulay v. South Side Trust & Savings Bank (1972), 4 Ill. App. 3d 483, 280 N.E.2d 803, where a tenant’s daughter was permitted to recover damages in tort occasioned by the landlord’s failure to abide by a covenant to repair given in his lease. In Lulay the court stated, “A growing number of courts adhere to the rule that a landlord who has covenanted to keep premises in repair is hable for injuries received by the tenant, his family, servants, invitees or sub-tenants, because of his failure to do so. [Citations.]” Lulay v. South Side Trust & Savings Bank (1972), 4 Ill. App. 3d 483, 485, 280 N.E.2d 803.

Defendant next argues that Looger is distinguishable on its facts because the complaint in Looger indicated that the landlord “specifically undertook” with his tenant an obligation to repair the defective porchway on which the plaintiff, the tenant’s guest, was ultimately injured. Thus, the alleged defect appeared to have been present at the time the lease was entered into. While defendant’s observation regarding the facts in Looger may be correct, section 357 provides that liability may exist for “a condition of disrepair existing before or arising after the lessee has taken possession * * *."(Emphasis added.)

Defendant also purports to distinguish Looger on the ground that in Looger there was an undertaking by the lessor to make a specific repair, as opposed to a general covenant to repair. Section 357, however, does not limit liability to agreements to make specific repairs but extends to “a covenant in the lease or otherwise to keep the land in repair, * * In Moldenhauer v. Krynski (1965), 62 Ill. App. 2d 382, 388, 210 N.E.2d 809, a case decided before section 357 of the Restatement was adopted, the court rejected “a distinction between contracts involving a continuing duty to repair and those involving a duty to make specific or single repairs.”

“There appears to be no substantial reason for making the distinction made by the defendants. The gravamen of an action to recover damages for personal injuries resulting from a breach of a covenant to repair is the breach of a covenant itself; if the landlord is to be held liable it is only because he negligently failed to perform his duty. [Citation.] Whether the contract calls for the landlord to keep the premises in repair or simply to put the premises into repair has no bearing on whether he has negligently failed to make such repairs.” Moldenhauer v. Krynski (1965), 62 Ill. App. 2d 382, 390, 310 N.E.2d 809.

Contrary to defendant’s argument, a landlord may be liable for injuries proximately caused by breach of a general covenant to repair. See Farmer v. Alton Building & Loan Association (1938), 294 Ill. App. 206, 13 N.E.2d 652.

Finally, defendant suggests that the defective porchway in Looger may have been a common area used by other tenants and he notes that a landlord’s duty to maintain common premises for the use of tenants and their guests traditionally has been recognized. (See, e.g., Drewick v. Interstate Terminals, Inc. (1969), 42 Ill. 2d 345, 350, 247 N.E.2d 877.) Again, the applicability of section 357 is not limited to common areas. While it is not clear from the Looger opinion whether the porchway was a common area, the briefs filed in that case indicate that it was not. In any event, it seems improbable that the court would have adopted section 357 of the Restatement if the landlord’s liability for personal injuries could have been predicated on a well-established tort theory. We also point out that the cases decided after Looger which have recognized the adoption of section 357 in Illinois have not relied upon the distinction between demised premises and common areas in determining whether a cause of action had been stated under section 357. (See Hurt v. Pershing Mobile Home Sales, Inc. (1980), 83 Ill. App. 3d 724, 404 N.E.2d 842; Dapkunas v. Cagle (1976), 42 Ill. App. 3d 644, 356 N.E.2d 575.) In our judgment Looger is not distinguishable on any of the grounds raised by defendant. Based on the foregoing, we conclude that a cause of action for personal injuries may be based on section 357 of the Restatement (Second) of Torts (1965).

Defendant next contends that plaintiff lacks standing to sue for an alleged breach of the covenant to repair because she was not a party to the lease. We must reject this contention. Under section 357 of the Restatement, a lessor of land is subject to liability for “physical harm caused to his lessee and others upon the land with the consent of the lessee” where the lessor has negligently breached a contractual agreement to keep the land in repair and where the breach creates an unreasonable risk to persons upon the land which performance of the lessor’s agreement would have prevented. The lessor’s duty under the rule “is not merely contractual, although it is founded upon a contract. It is a tort duty. It extends to persons on the land with the consent of the lessee, with whom the lessor has made no contract.” (Restatement (Second) of Torts sec. 357, comment d (1965); see also Lulay v. South Side Trust & Savings Bank (1972), 4 Ill. App. 3d 483, 485, 280 N.E.2d 803.) Paragraph 21 of the lease provides, in part:

“Tenant further agrees that except for instances of negligence or willful misconduct of Lessor, its agents or employees, Lessor, its agents or employees shall not be liable for any damage to the person or property of Tenant or any other person occupying or visiting the Apartment or Building, sustained due to the Apartment or Building or any part thereof or any appurtenance thereof becoming out of repair * * *.” (Emphasis added.)

This provision implies that the lessor may be liable for personal injuries sustained by a guest of a tenant where those injuries are proximately caused by the lessor’s negligent failure to keep the demised premises in repair. We conclude that plaintiff has standing to bring this action.

Defendant further contends that even if section 357 is “potentially applicable,” plaintiff’s third amended complaint fails to allege facts showing a failure on defendant’s part to use due care. Section 357(c) requires, as an element of liability, that “the lessor fails to exercise reasonable care to perform his contract.” Comment d to the section states:

“Since the duty arises out of the existence of the contract to repair, the contract defines the extent of the duty. Unless it provides that the lessor shall inspect the land to ascertain the needs of repairs, a contract to keep the premises in safe condition subjects the lessor to liability only if he does not exercise reasonable care after he had had notice of the need of repairs. In any case his obligation is only one of reasonable care.”

The parties dispute whether, in the absence of actual notice, defendant was under an affirmative duty to inspect the demised premises to ascertain the needs of repairs. Assuming, however, that there was no duty to inspect, plaintiff’s complaint specifically alleged that defendant was given notice that the “stove was not in good working order and was not in safe condition” but “failed and refused to repair and maintain said stove * * * .” Defendant maintains that since the complaint did not set forth facts indicating that defendant had a reasonable opportunity to repair the alleged defect, there were no facts suggesting a failure to use due care. While the complaint did not recite, in so many words, that defendant had had a reasonable opportunity to repair the alleged defect, that inference reasonably may be drawn from the language of the complaint and thus would withstand defendant’s motion to dismiss.

Defendant’s principal argument regarding section 357 is that even if it is found applicable, plaintiff’s complaint was properly dismissed because it failed to allege that defendant was given written notice of the asserted need of repairs. Subparagraph (c) of section 357 of the Restatement posits as one element of liability that “the lessor fails to exercise reasonable care to perform his contract.” Comment (d) to this section, quoted above, notes that since the duty arises out of the existence of the contract to repair, the contract defines the extent of the duty. Defendant submits that a cause of action has not been stated because the lease, by its express terms, requires written notice of alleged defects.

Plaintiff responds that no notice was necessary because under the lease defendant had a continuing duty to keep the demised premises in a constant state of repair. Plaintiff also relies on paragraph 11 of the lease which states, in part, that “Lessor reserves the right in accordance herewith to enter the Apartment in order to inspect same, make necessary or agreed repairs, * * * [or] supply necessary or agreed services °* * *." Plaintiff argues that where the lessor has covenanted to keep the demised premises in a state of repair, an intention that the lessor shall take notice of the need of repairs from his own observation may be implied from the lessor’s reservation in the lease of a right to enter and inspect the premises. (See Hurt v. Pershing Mobile Home Sales, Inc. (1980), 83 Ill. App. 3d 724, 727-728, 404 N.E.2d 842; Alaimo v. Du Pont (1954), 4 Ill. App. 2d 85, 92, 123 N.E.2d 583; Cromwell v. Allen (1909), 151 Ill. App. 404, 408.) In the alternative, plaintiff argues that the written notice provision is unenforceable as a matter of public policy (Ill. Rev. Stat. 1975, ch. 80, par. 91) and is inapplicable to anyone other than the party who signed the lease. See Valentin v. Swanson & Co. (1960), 25 Ill. App. 2d 285, 289, 167 N.E.2d 14.

In our view it is unnecessary to decide whether plaintiff had a continuing duty to keep the demised premises in a constant state of repair irrespective of any notice from the tenant. A lessor’s liability under section 357 of the Restatement may be based on the lessor’s failure to exercise reasonable care after he has had notice of the need of repairs. (Restatement (Second) of Torts sec. 357, comment d (1965).) Here plaintiff’s third amended complaint alleged that defendant was given notice of the defective stove oven door and “failed and refused to repair and maintain said stove * * *." While the complaint did not allege that the notice was in writing, the Restatement does not predicate liability upon written notice nor, in our opinion, do the lease provisions involved in this case require such notice.

Paragraph 23 of the lease states in part that if the lessor defaults in his duty to maintain the apartment or in his agreements to perform repairs as set forth in paragraph 6 and such default is not cured by the lessor within 30 days after notice from the tenant (unless such default involves a hazardous condition or failure to furnish heat, hot water or essential services, which shall be cured forthwith), the tenant may treat such event as a breach of the lease and, in addition to all other rights and remedies provided at law or in equity, may, by giving lessor not less than 10 days’ prior written notice, terminate the lease. Contrary to defendant’s argument, paragraph 23 does not define the lessor’s duty of repair (which duty is contained in paragraph 6 of the lease and furnishes the basis of liability under section 357 of the Restatement) but merely determines the circumstances under which the tenant may terminate his lease after the landlord has defaulted in his obligation under paragraph 6 to maintain the apartment or perform repairs. Termination of the lease upon not less than 10 days’ prior written notice is an option the tenant has “in addition to all other rights and remedies provided at law or in equity” which are “distinct, separate, and cumulative.” Paragraph 22.

Defendant seemingly argues that there can be no actionable breach of the landlord’s covenant to repair unless the tenant first complies with the notice provisions of paragraph 23. Even if we accept this argument, we note that while paragraph 23 specifies that the notice of termination must be in writing, subparagraph 23(1) does not impose such a requirement on the notice of default where the default relates to the lessor’s duty to “maintain the Apartment * * * or in its agreements to perform repairs, * * * as set forth in Paragraph 6 * * *.” In contrast, subparagraph 23(2) explicitly requires “written notice” of default “in the performance of any other covenant or agreement” of the lease as a condition precedent to termination. Although paragraph 19 of the lease, denominated “NOTICES,” states that “Notices, * * * shall be in writing,” we do not believe that this general requirement of written notice was intended to apply to subparagraph 23(1) which, unlike subparagraph 23(2), makes no mention of written notice of default. Indeed, it is strained to suggest that no liability attaches to the landlord’s failure to cure a default regardless of its seriousness merely because the landlord was not given written notice of it. We conclude that the notice alleged in plaintiff’s third amended complaint was sufficient and hold that plaintiff’s complaint states a cause of action under section 357 of the Restatement (Second) of Torts (1965).

In her reply brief plaintiff also argues that the facts set forth in her third amended complaint would support a res ipsa loquitur theory of recovery. This argument was not raised in her original brief and will not be considered here. Ill. Rev. Stat. 1981, ch. 110A, par. 341(e)(7); Herman v. Hambler (1980), 81 Ill. App. 3d 1050, 1054, 401 N.E.2d 973.

For the foregoing reasons the order of the circuit court of Cook County is affirmed in part, reversed in part and remanded for further proceedings consistent with this opinion.

Affirmed in part; reversed in part; and remanded for further proceedings.

DOWNING and HARTMAN, JJ., concur.

       Paragraph 23 of the lease, “TENANT’S REMEDIES,” provides in part that if Lessor:
      “(1) defaults in its duty to maintain the Apartment ° ° “ or in its agreements to perform repairs, * * * as set forth in Paragraph 6 and such default is not cured by Lessor within 30 days after notice from Tenant to Lessor (unless such default involves a hazardous condition or failure to furnish heat, hot water or essential services, which shall be cured forthwith); and provided Lessor’s failure to cure is not excused on account of one or more of the defenses set forth in Paragraph 6(C) [the lease apparently means to refer to Paragraph 6(D), which is not applicable here] * * *
      Tenant may: treat such event as a breach of this Lease and, in addition to all other rights and remedies provided at law or in equity * * * may, by giving Lessor not less than 10 days prior written notice, terminate the Lease and the Term created hereby by setting forth the date of said termination in the said 10 days’ notice and vacating on or before said date, with rent paid to said termination date. Prepaid rent and Security Deposit, if any, shall be promptly refunded to Tenant.”
      Paragraph 19, entitled “NOTICES,” provides that “Notices * * * shall be in writing * * *."


author: JUSTICE HARTMAN JUSTICE HARTMAN

text:
    THE VILLAGE OF WESTERN SPRINGS, Petitioner, v. THE POLLUTION CONTROL BOARD et al., Respondents.
    First District (2nd Division)
    No. 81-1117
    Opinion filed March 30, 1982.
    Supplemental opinion filed on denial of rehearing August 10, 1982.

      Lord, Bissell & Brook, of Chicago (Robert A. Knuti and Andrea Sykes Foote, of counsel), for petitioner.
    No appearance for respondent John F. Burns.
   JUSTICE HARTMAN

delivered the opinion of the court:

Petitioner, Village of Western Springs (Village) seeks administrative review (Ill. Rev. Stat. 1979, ch. 111½, par. 1041; Ill. Rev. Stat. 1979, ch. 110, par. 264 et seq.) of a decision rendered by the Illinois Pollution Control Board (Board) ordering it to cease and desist from violating section 12(a) of the Environmental Protection Act (Act) (Ill. Rev. Stat. 1979, ch. 111½, par. 1012(a)) and to submit a compliance plan to eliminate surcharge of human wastes into ponded street surface waters. The Board’s decision arose out of a complaint filed by a village resident, John Burns, charging that his property was flooded periodically by storm water and sewage through village violations of several regulations of the Board and sections of the Act, including section 12(a). The issues raised on appeal are whether the Board’s determination was supported by the manifest weight of the evidence, and appropriate relief was ordered. For the reasons set forth below, we affirm.

Respondent Board has filed the transcript of hearings, together with exhibits in accordance with section 7 of the Administrative Review Act; however, John Burns has not filed an appearance in this review. Ill. Rev. Stat. 1979, ch. 110, par. 270.

Evidence adduced at the administrative hearing on October 21,1980, revealed that after a bad storm in August 1972, the basement of John Burns’ house, located at 4419 Clausen, flooded with water, human waste and toilet paper. This mishap was caused by the backup of a toilet in his basement. In September 1973, his basement again filled up with similar debris, after which he removed his basement toilet. During a heavy rain in April 1974, he observed paper coming up from the manhole, located 30 feet from his front porch. On June 12, 1976, his property was again flooded and he observed water, although no human waste, coming up through the same manhole. About one dozen other flooding incidents, up to and including August 1980, were described. Generally, after a storm would abate, the water would remain on Burns’ property and in the street from 2 to 4 hours. The water ranged in depth from 12" to 18".

Expert engineering testimony revealed that a combined sewer passing by Burns’ property eventually intersects the interceptor sewer of the Metropolitan Sanitary District of Greater Chicago (District). Combined sewers are designed to handle a combination of sanitary flows and storm flows. The interceptor sewer, designed to handle only sanitary flow, is about 24" in diameter; the combined sewer line servicing Burns’ property is 48" in diameter. The interceptor sewer can receive all the flow from the combined sewer during times when there is no storm water runoff. When there is storm water runoff, the large flows that come through the combined sewer are diverted into Salt Creek. Combined sewer overflow is the excess, untreated water and sewage which discharges into Salt Creek, because it cannot be accepted by the interceptor sewer. The sewer pipe could also be filled up to a degree that would cause a backup into a house. The dry weather flow of a combined sewer is commonly less than 5% or 10% of the capacity of the sewer, so that once the sewer starts to flow full, it is diluted 10 to 20 times by storm water.

The problem of the combined sewer overflow has been addressed by the Tunnel & Reservoir Plan (TARP), which has been approved by the Illinois Environmental Protection Agency and the District. The essence of the plan is that instead of the overflows being discharged into Salt Creek, they would be discharged into a proposed “deep tunnel.” The engineer recommended that the Village connect its combined sewers to the proposed tunnel as soon as it is available, which would solve the pollution control problem.

The expert found no economic justification to construct new storm sewers for the Village solely for the purpose of diminishing the frequency and depth of “ponding.” On October 21,1980, the cost of a sewer system of maximum size in hooking up to TARP would be over one million dollars. The construction would reduce but not eliminate the numbers and depths of pondings. Ponding is considered a legitimate device for storing storm water runoff. Ponding may also consist of both sewer and storm water. Fifty-five households in the Village are affected by ponding. Burns could “flood proof” his home by surrounding it with an earth berm, building a concrete wall in other areas, and providing some sort of source of emergency power to insure the operational use of his sump pumps. As of February 1979, this would cost about $10,000. The pumps at the 55th Street Pumping Station, should they be operated, would aggravate the flooding problem affecting Burns. Although there seems to be “some question” as to whether they are actually operated, the Village has petitioned the District to remove the pumps.

A flood control policy resolution adopted by the Village was attached as Exhibit A to Burns’ complaint. The Village resolved that it would not expend large sums of money for the construction of new sewer systems, that temporary ponding was an integral part of the present water management system, that such damages were most economically mitigated by the private actions of the owners of the properties, and that specific, localized improvements financed by special assessments at no cost to the Village be made to alleviate specific flooding conditions.

The Board’s decision, in part, found that the discharge of the combined sewer flow from street manholes into the ponded street surface waters violated section 12(a)’s prohibition against water pollution. The Village was ordered to cease and desist violating that section within a specified date and was required to submit a compliance plan acceptable to the Environmental Protection Agency within 90 days of the date of the order.

I

The Village contends that Burns failed to show a violation of section 12(a) (Ill. Rev. Stat. 1979, ch. 111½, par. 1012(a)) and that the finding of a violation is contrary to the manifest weight of the evidence. We disagree.

Section 12(a) prohibits any person from causing or tending to cause water pollution. In turn, “water pollution” is defined as the discharge of any contaminant into Illinois waters “as will or is likely to create a nuisance or render such waters harmful * * " to public health, safety or welfare * * *." (Ill. Rev. Stat. 1979, ch. 111½, par. 1003(hh).) The Board could have reasonably found a violation of section 12(a) from evidence showing that during a heavy rainstorm there is a substantial risk of the Village’s combined sewer becoming full and discharging “sewer water” composed of sanitary wastes and storm water onto the surface street areas. Such evidence supports a finding of a substantial risk of actual pollution, thereby establishing a prima facie statutory violation. Ill. Rev. Stat. 1979, ch. 111½, par. 1041; Ill. Rev. Stat. 1979, ch. 110, par. 274.

II

The Village urges that even if a “technical” statutory violation was proved, the relief granted by the Board was not necessary for a variety of reasons, including the ongoing relationship between the Illinois Environmental Protection Agency (Agency) and the Village concerning its sanitary and storm sewer system. This latter argument is untenable. The instant complaint was initiated by a private citizen pursuant to section 31(b) of the Act (Ill. Rev. Stat. 1979, ch. 111½, par. 1031(b)), which specifically authorizes such an action as a safeguard against inadequate prosecution. (See, e.g., Currie, Enforcement Under the Illinois Pollution Law, 70 Nw.U.L. Rev. 389, 452-54 (1975).) The Village’s previous dealings with the Agency were apparently insufficient or ineffective, precisely the raison d’etre of section 31(b). In effect, the Board has determined that more efficacious efforts to solve the sanitary waste discharge must be made by the Village in cooperation with the Agency. The Village insists that the problem will someday be alleviated when the District’s “deep tunnel” TARP project is built. It appears that the Board by its directive to the Village to “* ° ° work with the Agency to determine and implement changes in its sewer system to eliminate the surcharge of human wastes into ponded street surface waters,” is unwilling to abide the uncertainty of whether and when TARP will be completed and become accessible.

Once the evidence adduced at the administrative hearing established a prima facie water pollution violation, the burden shifted to the Village, under section 31(c) (Ill. Rev. Stat. 1979, ch. 111½, par. 1031(c)) to introduce evidence demonstrating that compliance would be unreasonable in light of the section 33(c) criteria (Ill. Rev. Stat. 1979, ch. 111½, par. 1033(c)) and any other pertinent, mitigating factors. (Processing & Books, Inc. v. Pollution Control Board (1976), 64 Ill. 2d 68,75-77, 351 N.E.2d 865; Stager v. Pollution Control Board (1981), 96 Ill. App. 3d 332, 338, 421 N.E.2d 929; Currie, at 460-63.) In coming to its determination under section 33(c) the Board was obligated to consider facts and circumstances bearing upon the reasonableness of the discharges including, among other things, the character and degree of injury to the health, general welfare and physical property of the people; the social and economic value of the pollution source; and the technical practicability and economic reasonableness of reducing or eliminating the discharges.

The record shows that although danger of public injury was diminished by the dilution of sewage by the storm water flow, as the Board observed in its opinion, there remains a danger to persons wading in the water and to children playing amid sewage materials. Clearly, more than mere inconvenience of one homeowner is involved here. There was evidence which implied that it may not be “technically practicable” to abate the pollution. The engineering expert concluded that the construction of new storm sewers of the maximum size for hooking up to TARP was not economically justifiable. Such construction would cost the Village, having a population of some 12,830 people, over one million dollars and then only slightly reduce the flooding problem. By its order, however, the Board did not direct the construction of new storm sewers nor did it demand an unreasonable solution to the problem. One of the possible methods available for the diminution of sewage backup alluded to by the Board was reference to cooperation with the District with respect to the operation of its 55th Street Pumping Station, which the record appears to demonstrate exacerbates the problem. Another possibility appears in section 46(a) of the Act (Ill. Rev. Stat. 1979, ch. 111½, par. 1046(a)), which authorizes municipal corporations that have been directed to abate violations of the Act to secure financial assistance through issuance of general obligation bonds, revenue bonds, or Federal funding. See North Shore Sanitary District v. Pollution Control Board (1973), 55 Ill. 2d 101, 302 N.E.2d 50.

Since the Village has not as yet attempted to ameliorate the problem in cooperation with the Environmental Protection Agency, pursuant to the Board’s order instanter, the Board’s decision cannot at this time be deemed economically unfeasible and in excess of the scope of its authority.

For the foregoing reasons, the decision of the Pollution Control Board is not against the manifest weight of the evidence nor does its order exceed the powers delegated to it by the Act. Accordingly, the decision must be affirmed.

Affirmed.

DOWNING and PERLIN, JJ., concur.

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING

JUSTICE HARTMAN

delivered the opinion of the court:

In a post-opinion motion, the Village moved pursuant to Supreme Court Rule 329 (73 Ill. 2d R. 329) for an order granting leave to supplement the record with an affidavit of the village manager, Paul Nicholson, supported by several letters attached as exhibits A, B and C thereto, dated March 28, 1980, April 1, 1982, and December 22, 1980, respectively. Nicholson’s affidavit stated that after the hearing before the Board he was told in a telephone conversation in the fall of 1980 by the general superintendent for the District that there was no longer any diversion of water from the 55th Street Pumping Station into the combined sewers that pass in front of the complainant’s residence; that he has personally investigated the matter; that the pumping station has had no effect whatsoever on the ponding condition that has existed in front of the complainant’s residence since at least the fall of 1980; that on April 7, 1982, he was informed in a telephone conversation with the project manager of the Grant Administration Section, Illinois Environmental Protection Agency (Agency) that no relief sewer work of any type which could be constructed to directly mitigate the ponding problem at the complainant’s residence would be grant eligible.

Since section 3 — 110 of the Administrative Review Law (Ill. Rev. Stat. 1981, ch. 110, par. 3 — 110) expressly provides that "* * * [n]o new or additional evidence in support of or in opposition to any finding, order, determination or decision of the administrative agency shall be heard by the court,” the Village cannot be allowed to supplement the record. The Village’s motion to supplement the record accordingly is denied.

The new evidence, however, is relevant and material to the technical practicality of abating the discharge of sewer water onto surface street areas (see Ill. Rev. Stat. 1979, ch. 111½, par. 1033(c)), and the only solution alluded to in the Board’s opinion, that pertaining to the 55th Street Pumping Station. In light of this new development and the evidence showing that it may not be technically feasible to abate the pollution discharge, we remand the cause under section 3 — 111(a)(7) of the Administrative Review Law (Ill. Rev. Stat. 1981, ch. 110, par. 3 — 111(a)(7)) for further hearings on evidence discovered by the Village subsequent to October 21, 1980, the date of the final hearing, respecting the economic feasibility of the pollution abatement, with the Village bearing the burden of persuasion at such proceedings. Ill. Rev. Stat. 1979, ch. 111½, par. 1031(c).

Affirmance vacated and cause remanded for further hearings.

DOWNING and PERLIN, JJ., concur.