text:
    Interstate Printing Co., Plaintiff-Appellee, v. Lawrence Callahan et al., Defendants-Appellants.
    (No. 58769;
    First District (5th Division)
    March 29, 1974.
    William T. Halvorsen, of Chicago, for appellants.

      Rappaport and Meyer, of Chicago, for appellee.
   Mr. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court:

This is an appeal from a judgment, after a bench trial, for $5,183.00 for printing services rendered. On appeal, the issues presented by defendant are whether (1) the failure of plaintiff to reply to affirmative defenses in an amended answer are an admission thereof; (2) the judgment was against the manifest weight of the evidence; and (3) the trial court should have granted defendants’ post-trial motion to vacate the judgment.

It appears from the pleadings that Commercial Travelers Club (Commercial) requested defendants to print brochures and that defendants gave an order to plaintiff to do the printing, which plaintiff alleges was completed on February 5, 1970.

Plaintiff filed a complaint seeking $6,231.64, which allegedly was the cost of the printing. Defendants answered, denying all of the allegations of the complaint. Later defendants filed an amended answer, making the same denials but also asserting affirmatively that on February 5, 1970 they cancelled the printing order placed with plaintiff because (1) plaintiff increased its original price quotation without the consent of defendants; and (2) plaintiff admitted it could not meet the requested delivery date. Defendants also alleged in this amended answer that after their cancellation of the order, plaintiff carried on its dealings directly with Commercial.

OPINION

Defendants first contend that the failure of plaintiff to reply to the affirmative defenses in their amended answer is an admission of the truth thereof, and on that basis judgment should have been entered for them. They refer us to Schiff v. Schiff, 25 Ill.App.2d 157, 165, 165 N.E,2d 713, where the court stated:

“[Wjhere new matter by way of a defense is pleaded in an answer a reply is necessary, and a failure to reply operates as an admission of the truth of such new matter * *

In opposition thereto, plaintiff argues (1) that the amended answer should be stricken, because it was filed without leave of court; and (2) that defendants failed to raise in the trial court the question of its alleged failure to reply to the affirmative defenses, thus they are precluded from raising it for the first time on appeal.

Our examination of the record on appeal fails to disclose that the defendants obtained leave to file their amended answer and the pleading could have been stricken. Reinhardt v. Security Insurance Co., 287 Ill.App. 320, 4 N.E.2d 883. To ascertain this fact, we have also examined the file in the trial court, of which record this reviewing court takes judicial notice. (Ill. Rev. Stat. 1973, ch. 51, pars. 48a and 48b). In any event, because no report of proceedings or agreed statement of facts has been provided, we are unable to ascertain whether defendants raised in the trial court the question of plaintiff’s failure to reply to their affirmative defenses. Under those circumstances, the question may not be argued for the first time on appeal. Miles Homes Inc. of Illinois v. Lyons, 8 Ill.App.3d 179, 289 N.E.2d 469.

We note also that defendants state in their brief: “Defendants’ evidence before the Trial Judge showed the cancellation of the order, the direct dealings by the plaintiff with defendants’ customer * * *. The evidence further showed that defendants had no further dealings with plaintiff, that it received no delivery of material from plaintiff and how much material had been delivered to Commercial Travelers Club

* * Thus, defendants admit producing evidence at trial in support of the affirmative defenses. We are of the opinion that the alleged failure of plaintiff to reply was waived and did not constitute an admission. In First Federal S. & L. Ass’n v. American Nat. B. & T. Co., 100 Ill.App.2d 460, 467-468, 241 N.E.2d 615, the court stated:

“Under these circumstances, the appellee, having failed to reply, ordinarily would be estopped to deny the truth' of the allegations contained in the appellant’s answer. However, where the appellant —as in the instant case—introduces evidence in support of his allegations and proceeds in litigating the case as though his adversary’s responsive pleadings had been properly filed, and the issues created by his answer are fully litigated, then he waives any advantage he may have gained as a result of his adversary’s failure to plead. Not having raised the point of pleading before the trial court, the appellant here is now in no position to assert that the appellee admitted his allegations.”

See also County of Winnebago v. Willsey, 122 Ill.App.2d 149, 258 N.E.2d 138.

Defendants argue that the testimony and exhibits at trial and newly discovered evidence set forth in their post-trial motion reveal that Raymond A. Peter, President of plaintiff, testified falsely that no attempt was made by it to invoice any other company but defendant. The burden is on the party who brings a cause to a reviewing court to present a record which fairly and fully presents all matters necessary and material for a decision of the questions raised. Libman v. Gipson, 93 Ill.App.2d 62, 64, 235 N.E.2d 670. Where the record does not contain a report of proceedings and where the order appealed from recites that the court is fully advised in the premises, as is the fact here, a reviewing court must presume that the trial court acted in conformity to law and had before it sufficient facts to support its order. Smith v. Pappas, 112 Ill.App.2d 129, 251 N.E.2d 390.

The granting or denying of a motion for new trial on the basis of newly discovered evidence is within the discretion of the trial court, and the exercise of that discretion will not be disturbed except in the case of manifest abuse. Kaster v. Wildermuth, 108 Ill.App.2d 288, 247 N.E.2d 431.

No report of proceedings or agreed statement of facts was filed here and we are unable to determine whether the trial court’s decision was against the manifest weight of the evidence or whether there was an abuse of discretion in the denial of defendants' post-trial motion. Under these circumstances, we are required to assume that the evidence heard by the trial court was sufficient to support the judgment and the order entered. Smith v. Pappas, supra.

A post-trial motion may not be employed as a substitute for a report of proceedings. Boysen v. Antioch Sheet Metal, Inc., 16 Ill.App.3d 331, 306 N.E.2d 69; City of Chicago v. 3 Oaks Wrecking and Lumber Co., 65 Ill.App.2d 328, 213 N.E.2d 48; Hoffman v. Wilson, 60 Ill.App.2d 396, 208 N.E.2d 607.

For the reasons stated, the judgment is affirmed.

Affirmed.

DRUCKER and LORENZ, JJ., concur.


source: Caselaw Access Project

author: Mr. PRESIDING JUSTICE SULLIVAN

license: Public Domain

text:
    Janet I. Dinwiddie, Plaintiff-Appellant, v. Howard E. Baumberger, Defendant-Appellee.
    (No. 59247;
    First District (5th Division)
    March 29, 1974.

      Modified opinion upon denial of rehearing filed May 13, 1974.

      Edward S. Margolis and Julian I Silvertrust, both of Teller, Levit & Silvertrust, of Chicago, for appellant.
    George J. Sotos of Meyers & Matthias, of Chicago, for appellee.
   Mr. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court:

This is an appeal from a decision denying plaintiff’s motion for entry of a turnover order against State Farm Insurance Company’s employment retirement trust (Trust) and from a dismissal of a citation proceeding against the Continental Illinois National Bank and Trust Company of Chicago (Continental).

The action was commenced by plaintiff in Illinois against her former husband, seeking enforcement of a duly filed foreign judgment order for alimony arrearages of $13,065.00. Plaintiff then served Continental, the trustee of the State Farm Trust, with a citation to discover assets. This Trust, of which defendant was a beneficiary and entitled to receive $1,042.26 monthly, was funded solely by State Farm. The relevant portion of the Trust holds:

“4. No beneficiary hereunder shall have any right to assign, transfer, hypothecate, encumber, commute or anticipate his interest in any payments under this Trust, and such payments shall not in any way be subject to any legal process or levy of execution upon or attachment or garnishment proceedings against the same for the payment of any claim against any beneficiary hereunder, nor shall such payments be subject to the jurisdiction of any bankruptcy court, or insolvency proceeding.”

Plaintiff moved to have the funds held by Continental, as trustee, turned over and for a continuing order upon it to pay over defendant’s funds when they became due. Continental did not appear to resist the motion, although defendants’ attorney did. After each party filed a memorandum of law, the trial court denied plaintiff’s motion and dismissed the citation against Continental. Thereafter, the court in a further ruling, denied plaintiffs motion to vacate the court’s earlier order.

The only issue presented for review is whether a wife’s claim for alimony and support is collectible from a spendthrift trust created by someone other than the husband.

OPINION

Plaintiff argues that a number of Illinois cases have held that the provisions of a spendthrift trust are insufficient to defeat the right of a wife to alimony and support. Exemplificative of this proposition is Keller v. Keller, 284 Ill.App. 198, 1 N.E.2d 773, which summarizes a number of prior cases.

In Keller the wife, pursuant to a divorce, obtained an order directing the trustees of a trust in which her husband had a beneficial interest, to apply a portion of the husband’s funds for the support of their minor childen. The will of defendant’s father, establishing the trust in question, contained the following provision:

“ * * such payments to be made in installments, as often as found convenient by my trustees, but not less than twice in each year; each installment to be paid personally to the child entitled thereto, and not to be capable of anticipation or assignment.’” (284 Ill.App. at 200.) (Emphasis added.)

This will was executed about 3 years after the entry of the divorce decree against the defendant. The court after recognizing the validity of trusts containing spendthrift provisions went on to state, at page 202: “* * * there has appeared a determination to limit the cases in which the rule will be recognized by creating exceptions in certain classes of cases, where it is held upon various theories that the rule should not be applied.” The court supports this conclusion with a number of reasons and authorities. For example, it quoted from Moorehead’s Estate, 289 Pa. 542, 137 A. 802, where the court stated it “would be contrary to public policy as releasing the husband from his primary obligations to society to support Iris family, and also destructive of the legal unity which common law recognized as existing between husband and wife.”

The Keller court went on to discuss the early Illinois case of England v. England, 223 Ill.App. 549, wherein that court, in viewing a spendthrift trust created by the will of the husband’s father as a barrier to the wife’s ability to collect alimony, decided, “an intention on the part of the trustor to exclude the wife was not apparent from a consideration of the whole instrument [and] * * * the obligation of the husband to support the wife was not founded upon a debt or contract but was a social obligation based on public policy and for the good of society.” In a recital of the case of Tuttle v. Gunderson, 254 Ill.App. 552, the Keller court quoted therefrom as follows:

“‘Except where the trust was a spendthrift trust of the strictest sort, requiring the income to be paid to the beneficiary in person, and no one else (as in Board of Charities & Correction v. Lockard (1901) 198 Pa. 572, 82 Am. St. Rep. 817, 48 Atl. 496), the courts have uniformly construed provisions for the protection of the beneficiary from the claims of creditors or the consequences of his own improvidence, as not preventing the income of the trust from being subjected to the support of the beneficiary’s wife and minor children. [Citations.].”’ (Emphasis added.) Keller v. Keller, 284 Ill.App. 198, 205.)

We should note inferentially that the spendthrift trust of the “strictest sort” referred to above in Board of Charities involved a trust created by the husband’s father, which provided:

“All moneys or legacies herein bequeathed are to be paid to the legatees in person and to no one else, and shall not be assignable or transferable, nor subject nor liable in any way whatever for any debts or obligations of any of said legatees, heretofore or hereafter incurred or contracted or created.”

The court there refused to allow the wife to attach the money in the hands of the trustee, stating: “[W]e agree entirely with all that has been said about the duty of the beneficiary to support his wife and child; but that does not authorize interference with the right of another individual to dispose of his own property as he may see fit.” (Emphasis added.)

Finally, in dealing with section 49 of the then entitled Chancery Act (Ill. Rev. Stat. 1933, ch. 22, par. 49), the Keller court, at page 206, concluded that the provisions of Hat statute “[applied] only to merely contractual obligations.” We believe Hat His conclusion is unwarranted, since He statute as it was Hen worded, and as it is currently worded, referred and refers to “judgments” and is not limited to judgments on contracts.

Although He record here is devoid of any background regarding He State Farm Trust, it is apparent that He Trust created and funded by State Farm was meant to inure exclusively for He benefit of its employees. In order to implement Hat desire and effectively provide for Heir employees, State Farm included He aforementioned restrictive provision in He Trust. We believe Hat by so doing they have complied wiH the dictates of Ill. Rev. Stat. 1971, ch. 22, par. 49, which provides:

‘Whenever an execution shall have been issued against He property of a defendant, on a judgment, and shall have been returned unsatisfied, in whole or in part, He party suing out such execution may file a complaint against such defendant, and any oHer person, to compel He discovery of any property or thing in action, belonging te the defendant and of any property, money, or thing in action due to him, or held in trust for him, and to prevent the transfer of any such property, money or thing in action, or the payment or delivery thereof to the defendant, except when such trust has, in good faith, been created by, or the fund so held in trust has proceeded from, some person other than the defendant himself. The court shall have power to compel such discovery, and to prevent such transfer, payment or delivery, and to decree satisfaction of the sum remaining due on such judgments, out of any personal property, money or things in action, belonging to the defendant, or held in trust for him, with the exception above stated, which shall be discovered by the proceedings whether the same were originally liable to be taken in execution Provided, that no answer made to any complaint filed under this and the preceding Section shall be read in evidence against the defendant on the trial of any indictment for fraud charged in the complaint.” (Emphasis added.)

Section 49 has been clearly construed to prevent parties holding judgments from compelling trustees to turn funds over to them. As stated in Young v. First National Bank, 85 F.Supp. 68 (N.D. Ill. 1949):

“It is settled that in view of Section 49 interests in trusts, such as are here involved, may not be reached by a creditor’s bill. Potter v. Couch, 141 U.S. 296, 11 S.Ct. 1005, 35 L.Ed.721; Binns v. LaForge, 191 Ill. 598, 61 N.E. 382. As has been noted, relief was also denied when the remedy employed was garnishment. Baumgarden v. Reconstruction Finance Corporation, 7 Cir., 131 F.2d 741. In Dunham v. Kauffman, 385 Ill. 79, 52 N.E.2d 143, 154 A.L.R 90, the plaintiff was held not entitled to reach a similar trust interest by an attachment suit. In Spindle v. Shreve, 111 U.S. 542, 4 S.Ct. 522, 28 L.Ed. 512, and Hummel v. Cardwell, 390 Ill. 526, 62 N.E.2d 433, it was held that similar trust interests could not be reached by an assignee or trustee in bankruptcy in view of Section 49 of the Illinois Chancery Act.”

The express language of section 49 is not subject to divergent construction, and it is controlling as to the facts here unless we decide that compelling public policy overrides the statute. This we cannot do. If spendthrift clauses, in full compliance with the provisions of the statute, as they are here, are a contravention of public policy, then it is the legislature which must act to correct the situation.

For the foregoing reasons, the judgment is affirmed.

Affirmed.

LORENZ and DRUCKER, JJ., concur.

       In response to these cases and to the proposition that in order to reach the trust fund the party had to show intent by the trust creator that the fund was to be employed in that manner, the court in Schwager v. Schwager, 109 F.2d 754 (7th Cir. 1940), observed at page 757:
      ‘In this connection, it may also be said that the courts have extended themselves at great length to ascertain a favorable intent on the part of the settlor and, in fact, in some of the cases have indulged in a reasoning indicative of the desire sought to be achieved. In such cases the intent has been found because of a failure to express a non-intent.”


author: PER CURIAM.

text:
    The People of the State of Illinois, Respondent-Appellee, v. Clifton Sheppard, Petitioner-Appellant.
    (No. 59289;
    First District (5th Division)
    March 29, 1974.
    BARRETT, J., took no part.
    Paul Bradley, Deputy Defender, of Chicago (Richard D. Thomas, Assistant Appellate Defender, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and William F. Linkul, Assistant State’s Attorneys, of counsel), for the People.
   PER CURIAM.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Elias Natal, Defendant-Appellant.
    (No. 58533;
    First District (1st Division)
    April 1, 1974.
    BURKE, J., took no part.
   PER CURIAM.

James J. Doherty, Public Defender, of Chicago (John T. Moran, Assistant Public Defender, of counsel), for appellant.

Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr. and Linda West Conley, Assistant State’s Attorneys, of counsel), for the People.


author: Mr. JUSTICE HALLETT

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. James E. Rogers, Defendant-Appellant.
    (No. 59029;
    First District (1st Division)
    April 1, 1974.

      James J. Doherty, Public Defender, of Chicago (Marilyn Dershem Israel, Assistant Public Defender, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and Barry Rand Elden, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE HALLETT

delivered the opinion of the court:

Defendant was charged with unlawful use of weapons (Ill. Rev. Stat. 1973, ch. 38, par. 24—1(a)(4)) as the result of a police officer’s discovery, following a traffic stop of the automobile driven by defendant, of a .12-gauge sawed-off shotgun partially concealed beneath the rear seat. He was found guilty at a bench trial and sentenced to a term of 90 days in the House of Correction. He appeals, seeking reversal of the judgment of conviction, raising the following issues for our determination: (1) whether the trial court erred in denying his motion to suppress evidence (shotgun) obtained by the officer’s search; (2) whether the trial court violated the defendant’s right to due process of law at the hearing on the motion to suppress evidence by failing to remain impartial; (3) whether the trial court erred in determining that the defendant was guilty beyond a reasonable doubt; and (4) whether the trial court erred in concluding that the defendant had expressly and understandingly waived his right to a jury trial. For reasons which follow, we affirm the judgment of the trial court.

On February 11, 1973, a police officer stopped the automobile driven by the defendant because he had not properly signaled a right turn. At a hearing on a motion to suppress evidence, the officer testified that:

“After I stopped the defendant and he did not produce a driver’s license, I had occasion to look into the vehicle. I noticed the rear seat was pulled up and I noticed an object sticking from under it. I saw the barrel portion of a .12 gauge sawed-off shotgun. At that time I did not know that it was a shotgun. Approximately two or three inches of it was showing.”

The judge denied defendant’s motion to suppress the shotgun as evidence. Counsel for defendant protested on the ground that the officer had conducted a search without probable cause because he admitted that prior to conducting the search he did not know that the object in question was a shotgun. The judge then addressed the following question to the police officer:

“THE COURT: When you observed this object sticking out, what did it appear to you to be?
THE OFFICER: It appeared to be a gun.”

The judge again denied defendant’s motion.

Defendant then entered a plea of not guilty, whereupon the court addressed him as follows:

“THE COURT: Plea of not guilty. You have a right to have your case heard by a jury, do you wish to have a jury hear your case?
DEFENDANT: Yes.
THE COURT: Pardon me? You’ll have to answer as to whether you wish to have a jury hear your case, that’s twelve people? DEFENDANT: No, I don’t.”

The matter proceeded to a bench trial, whereupon the court found the defendant guilty and sentenced him to the 90-day term. This appeal followed.

Defendant’s first contention is that the trial court erred in denying his motion to suppress evidence (the shotgun). He contends that the officer-conducted an unlawful search of the vehicle because there was no probable cause for the search or, in the alternative, because the search was not incident to a valid arrest. In support of these arguments he maintains that the officer’s testimony regarding the visibility of the gun barrel was so conflicting as not to be credible such that the court could not reasonably have concluded that the officer saw a gun barrel. We disagree.

As was recently said in People v. Endress (1972), 5 Ill.App.3d 821, 284 N.E.2d 725, at page 826:

“* * * The defendant has the burden of showing that the search was unlawful. (Ill. Rev. Stat. 1969, ch. 38, par. 114—12(b); People v. Smith, 108 Ill.App.2d 172, 246 N.E.2d 689, cert. den. 25 L.Ed.2d 412.)”

and the ruling of the trial court is to be accepted on appeal unless “clearly unreasonable.” (People v. Haskell (1968), 41 Ill.2d 25, 30, 241 N.E.2d 430.) Our examination of the officers testimony convinces us that he saw what he believed to be a gun barrel protruding from beneath the rear seat and that upon further investigation he found it to be a sawed-off .12-gauge shotgun. It is of no consequence that he was unable specifically to identify the nature of the gun upon first observation. Since the proof was satisfactory, we conclude that the trial court properly determined that the officers testimony was credible and that the gun barrel was visible to him.

Since the shotgun was visible, it follows that there is no merit to defendant’s contention that the gun was seized as the result of an unlawful search. The rale in Illinois is that a search implies a prying into hidden places for that which is not open to view under circumstances implying an invasion and quest with some form of actual or constructive force (People v. McCracken (1964), 30 Ill.2d 425, 429, 197 N.E.2d 35.) Therefore, a seizure of a gun which is in plain view is not a search. (People v. Joyner (1972), 50 Ill.2d 302, 310, 278 N.E.2d 756; People v. Wright (1968), 41 Ill.2d 170, 174, 242 N.E.2d 180; People v. Pickett (1968), 39 Ill.2d 88, 95, 233 N.E.2d 560.) Thus, the question of illegal search is not even remotely involved here, since the uncontroverted evidence was that a portion of the gun barrel was in plain view (People v. Oliver (1970), 129 Ill.App.2d 83, 89, 262 N.E.2d 597) through the car window (People v. Elmore (1963), 28 Ill.2d 263, 265,192 N.E.2d 219). It follows that the trial court properly denied the defendant’s motion to suppress.

Defendant next contends that the trial court abused its discretion by failing to remain impartial thereby violating his right to due process of law at the hearing on the motion to suppress. As we noted previously, the police officer had testified that when he looked into the car he, “saw the barrel portion of a .12 gauge sawed-off shotgun. At that time [he] did not know it was a shotgun.” Following that testimony the judge questioned the officer as follows, “When you observed this object sticking out, what did it appear to be?” The officer responded, “It appeared to be a gun.” Defendant maintains that the court assumed the role of prosecutor when it questioned the officer.

While it is true that a judge must remain impartial and may not abuse discretion by assuming the role of the prosecutor in proving up material elements of the State’s case (People v. McGrath (1967), 80 Ill.App.2d 229, 236, 224 N.E.2d 660), it is also true that a judge, in the proper exercise of the court’s discretion, may question a witness for the purpose of clarifying ambiguities in the witness’ testimony in order to bring enlightenment on material issues (People v. Trefonas (1956), 9 Ill.2d 92, 100, 136 N.E.2d 817). In the instant case, defendant admits that the officer’s testimony was ambiguous as to whether he recognized the object protruding from beneath the rear seat as a gun barrel. The trial judge merely asked the officer what that object appeared to him to be. We think the question was proper and did not constitute an abuse of discretion.

Defendant next contends that he was not proven guilty beyond a reasonable doubt because the prosecution failed to establish that he had any knowledge of the presence of the weapon. We disagree for several reasons.

Defendant admitted to the police officer at the time of the stop that he had title to the automobile, although at trial he attempted to show that he had only borrowed it since he had allegedly sold the car prior to the incident but had failed to transfer title. The trial court concluded that tire car belonged to the defendant. In addition the officer testified that from his position outside the automobile he saw the gun barrel protruding from beneath the rear seat. Although, as previously noted, defendant attempted to discredit his testimony, nevertheless, the trial court concluded that the testimony was credible. The trial court, of course, determines the credibility of witnesses and we will not substitute our judgment unless the proof is so unsatisfactory as to justify reversal (People v. Coleman (1971), 49 Ill.2d 565, 276 N.E.2d 721). Since both findings were supported by the evidence, we conclude that the court properly determined that the car belonged to defendant and that the gun barrel was visible. Since the defendant’s ownership of an automobile, presence in it, and partial visibility of a weapon from outside the car are sufficient to establish that a defendant has knowledge of the weapon’s presence (People v. Latson (1972), 5 Ill.App.3d 1100, 284 N.E.2d 436), we conclude that the trial court properly determined that defendant knew of the presence of the weapon. Accordingly, there is no merit to this contention.

Finally, defendant contends that he did not expressly and understandingly waive his right to a jury trial. No specific formula exists by which to determine whether a waiver of the right to trial by jury is expressly and understandingly made. Instead, such a determination must be made on the facts of each case (People v. Wesley (1964), 30 Ill.2d 131, 133, 195 N.E.2d 708). Our examination of the record leads us to conclude that the waiver was expressly and understandingly made.

Defendant appeared at trial represented by the public defender who informed the court that he and his client were ready for trial. The record of proceedings indicates that counsel was familiar with the case. The hearing on the motion to suppress was followed by defendant entering a plea of not guilty. When asked by the court whether he wanted a trial by jury, the defendant first responded in the affirmative then in the negative after the court explained to defendant that a jury trial meant having 12 people hear his case. Here there was ample opportunity for counsel and defendant to confer prior to trial regarding whether defendant should be tried before a jury or the bench. We must therefore assume that defendant and counsel had discussed his right to a jury trial and had decided to waive it prior to trial (People v. Taylor (1973), 13 Ill.App.3d 253, 300 N.E.2d 862). In addition the court explained the nature of a jury trial to defendant who then responded that he did not want a jury trial. Nor was there any indication that the waiver was anything but voluntary. Therefore, the waiver was expressly and understandingly made (People v. Surgeon (1958), 15 Ill.2d 236, 154 N.E.2d 253; People v. Clark (1964), 30 Ill.2d 216, 220, 195 N.E.2d 631).

The judgment is affirmed.

Affirmed.

EGAN, P. J., and GOLDBERG, J., concur.


author: PER CURIAM:

text:
    Margaret Saragusa, Plaintiff-Appellee, v. The City of Chicago, Defendant-Appellant.
    (No. 59072;
    First District (1st Division)
    April 1, 1974.

      Rehearing denied April 30, 1974.

      BURKE, J., took no part.
    Richard L. Curry, Corporation Counsel, of Chicago (William R. Quinlan and Robert R. Retke, Assistant Corporation Counsel, of counsel), for appellant.
    Sol I. Dvorkin, of Chicago (Michael A. Gerrard and Allen S. Gerrard, of counsel), for appellee.
   PER CURIAM:

On September 21, 1970, plaintiff, Margaret Saragusa, filed this action against the defendant, City of Chicago, for injury resulting from her fall on April 20, 1970, due to an allegedly defective City sidewalk. The court, sitting without a jury, found for the plaintiff and assessed damages in the amount of $14,000, and the City appeals, contending that the court should have dismissed the action because the plaintiff’s written statement, filed with the city clerk on June 23, 1970, (1) was not signed and (2) did not give “the name and address of the treating hospital or hospitals, if any,” as required by section 8—102 of the Illinois Local Governmental and Governmental Employees Tort Immunity Act, as amended. (III. Rev. Stat. 1969, ch. 85, par. 8—102.) No question is raised as to the correctness or the amount of the verdict.

The City’s answer to plaintiff’s complaint admitted receipt of “purported notice.” At trial, the assistant corporation counsel stated that he wanted the record to show that he had filed a motion to dismiss on the ground that the notice was defective in the two respects mentioned. Otherwise, the facts are not in dispute. The evidence showed that although the copy of the notice left with the assistant city clerk was not signed, the original which the assistant clerk signed for and which he stamped “Received” did contain the plaintiff’s signature. Plaintiff was hospitalized from April 20, 1970, the date of the accident, until June 6, 1970, as a patient at St. Mary of Nazareth Hospital. This information was omitted from the notice, which gave Dr. A. B. Vacante’s name as the “attending physician.”

In ruling against the City on its motion to dismiss the case because the notice was insufficient, the trial judge said he based his decision on several factors, that the notice did contain the name of one Dr. Vacante and his address, that the information concerning the hospital was contained in the plaintiff’s answers to the City’s interrogatories, that the City did not raise the issue in its answer and did not file a motion to dismiss on the basis of improper notice until the date of trial. Under these circumstances, the court felt there was “substantial compliance” with the statute and that the City should be estopped from moving to dismiss at so late a date.

The City’s fifth interrogatory had asked for information concerning any attending or consulting physicians and the plaintiff’s answer, filed December 22, 1970, stated:

“5. (1) Dr. A. B. Vacante
6043 West Belmont Avenue Chicago, Illinois Tu 9-1777
(2) Dr. Dereng
St. Mary of Nazareth Hospital 1120 North Leavitt Street Chicago, Illinois 60622
(3) Dr. Mahin Hamidi Dr. Flitis
St. Mary of Nazareth Hospital 1120 North Leavitt Street Chicago, Illinois 60622
(4) Dr. Vacante—periodic visits in hospital.
Dr. Dereng—4-22-70.
Dr. Mahin Hamidi—4-22-70.
Dr. Flitis—4-22-70.”

And in response to the City’s sixth interrogatory, which requested certain information about whether the plaintiff had been “a patient or outpatient at any hospital or clinic,” the plaintiff answered:

“6. Still under Doctor’s care. Visits are made to patient’s home.
Dr. A. B. Vacante on following dates:
6-25-70 $15.00
9- 9-70 15.00
10-31-70 15.00.”

I.

The single issue in this case is whether the plaintiff’s written notice complied with section 8—102 of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1969, ch. 85, par. 8—102), which at the time of plaintiff’s accident in 1970 read as follows:

“§ 8—102. Notice of injury. Within 6 months from the date that the injury or cause of action, referred to in Sections 8—102 and 8—103, was received or accrued, any person who is about to commence any civil action for damages on account of such injury against a local public entity, or against any of its employees whose act or omission committed while acting in the scope of his employment as such employee caused the injury, must personally serve in the Office of the Secretary or Clerk, as the case may be, for the entity against whom or against whose employee the action is contemplated a written statement, signed by himself, his agent or attorney, giving the name of the person to whom the cause of action has accrued, the name and residence of the person injured, the date and about the hour of the accident, the place or location where the accident occurred, the general nature of the accident, the name and address of the attending physician, if any, and the name and address of the treating hospital or hospitals, if any.”

If the notice did not meet these requirements the trial court should have dismissed the suit in accordance with the requirements of section 8—103 of chapter 85.

Arguing first that the copy of the notice left with the City must be signed, the City cites as authority Minnis v. Friend, 360 Ill. 328, 196 N.E. 191, where the court held the notice fatally defective because “one of the essential elements,” i.e., the signature, was omitted. However, in the later cases, this requirement has been somewhat relaxed and in an identical factual situation in Klapkowski v. City of Chicago, 23 Ill.App.2d 222, 161 N.E.2d 865, leave to appeal denied, 18 Ill.2d 627, the notice was held sufficient, the court stating (23 Ill.App.2d 222, 224, 225):

“The City was served with an original signed statement giving it proper notice of the injury. The fact that both copies were unsigned does not warrant the application of a different rule.”

Consequently, the absence of the plaintiff’s signature on the copy left with the city clerk did not render the notice insufficient.

H.

Secondly, the City maintains, the notice was insufficient because it did not name the treating hospital. Plaintiff answers that her notice was “in substantial compliance” with the statute, citing Minnis v. Friend, 360 Ill. 328, 196 N.E. 191. The court there distinguished McComb v. City of Chicago, 263 Ill. 510, 511, 105 N.E. 294, which had held that “at or near the corner of Thirty-ninth Street and Campbell Avenue” was a sufficiently definite description, although it did not state on which corner the accident had occurred, and laid down the following rule regarding attempts to comply with the statute (360 Ill. 328, 333):

“The McCornb case would be applicable if there had been some attempt to comply with the requirement of the statute that the notice be signed and if the question were as to the sufficiency of the signature. No reason appears to us why the plain terms of the statute should not be followed.”

The City points to the recent case of Nikolic v. City of Chicago 18 Ill. App.3d 426, where a written notice was held insufficient since it failed altogether to describe the general nature of the accident which the City argued was “a necessary part” of the required notice. The court added (slip opinion, page 3):

“In so finding, we are not unmindful of the cases which plaintiff urges in support of his contention that where a substantial attempt to comply with the notice provisions of the statute is made, the notice will be deemed sufficient.”

The question, then, is whether as plaintiff contends there has been a substantial attempt to comply with the statutory provision that the written notice give “the name and address of the treating hospital or hospitals, if any,” as was required for the first time by the 1969 amendment to the statute which became effective October 10, 1969. Plaintiff first argues that she attempted to comply with the provision by including the doctor’s name in the original notice. Musser v. City of Chicago, 293 Ill.App. 625, 12 N.E.2d 336 (abstract opinion), cited by plaintiff, found a notice sufficient which did not give the name of the physician who had treated the plaintiff for 24 days immediately following the injury, but did name the physician who thereafter took over treatment of the plaintiff. We do not think that giving Dr. Vacante’s name can be construed as an attempt to comply with the new provision because furnishing the physician’s name is a requirement independent of and in addition to the requirement that the notice supply the name of the treating hospital.

In other words the test is not whether, in general, a plaintiff has attempted to comply with the statutory requirement, i.e., “substantial compliance” with the overall requirements of section 8—102. The test, rather, is whether plaintiff has made “some attempt” to comply with the particular requirement at issue (here, the requirement that the treating hospital be designated) and, if so, whether that attempt is “substantial.” Thus, in the case before us, it is known from the answers to the interrogatories quoted earlier that at least three physicians attended plaintiff yet her notice named only one. Had the City contended plaintiff did not comply with the statutory requirement that she give “the name and address of the attending physician, if any,” citation of Musser would be appropriate, but the City has not so contended. Therefore, compliance with the one provision concerning the attending physician was not an attempt to comply with the separate and distinct requirement that the notice name the treating hospital. Since plaintiff has not shown that she made “some attempt” to comply with this provision, we can make no appraisal of whether the attempt was “substantial.”

Plaintiff also contends that her answers to the interrogatories provided the information omitted in the notice. However, although the City’s sixth interrogatory specifically and pointedly asked whether the plaintiff had been a patient at a hospital or clinic, plaintiff’s answer did not furnish the name of any hospital or clinic, but only Dr. Vacante’s name and certain charges he made. And plaintiffs answer to the fifth interrogatory (for the names, addresses and other information concerning attending or consulting physicians) does not give the name of the hospital, as such. This was not a substantial attempt to comply with the provision at issue. Plaintiffs answer to that interrogatory, quoted in fuH above, did list two doctors in addition to Dr. Vacante and gave their addresses as “St. Mary of.Nazareth Hospital, 1120 North Leavitt Street, Chicago.” It might be inferred from this information that these doctors were attending physicians at St. Mary of Nazareth Hospital, but it does not necessarily follow that the City could or should have interpreted this information to mean that the plaintiff had been hospitalized there or that St. Mary of Nazareth Hospital was the treating hospital within the meaning of the statute. Apparently the City did not so interpret the information and so did not realize plaintiff had been hospitalized. This is why the City did not raise this defect in the notice earlier in the proceedings.

In any event, even if we were to conclude that the information furnished by plaintiff in her answers to the City’s interrogatories did name the treating hospital, or at least was a sufficient attempt to comply with that particular provision of the statute, the information was not furnished within 6 months from the date of the injury as required by the statute. In so holding, we are aware of the recent case of Helle v. Brush, 53 Ill.2d 405, 292 N.E.2d 372, which held that the defendant’s timely counterclaim, arising out of the same occurrence as an underlying suit filed by the City against it, was not subject to dismissal for failure to comply with the notice requirements of section 8—102. The court listed the purposes of the statute (53 Ill.2d 405, 407): “to permit early investigation and prompt settlement of meritorious claims; to avoid the expenses and costs of suit where settlement can be achieved; and to permit the public entity to determine its budget in advance, for taxing purposes”, and held that these purposes were served in the case at bar, stating (53 Ill.2d 405, 408):

"Here, the fact that the public entity commenced the action indicates that the facts were not stale, and the avowed purpose of avoiding the expenses of litigation cannot be achieved since the public entity initiated the litigation. While the additional purpose of enabling a public entity to determine its budget for tax purposes is laudable, it must be weighed against the rights of the person who is sued to assert a cause of action against the litigant who brought him to court.”

The case at bar is clearly distinguishable from Helle v. Brush because here the City did not commence the litigation, and because the purposes of the statute listed above are not served if in a case such as that at bar, the name of the hospital can be omitted and the cost of 6 weeks’ hospitalization not come to light until trial. Nevertheless, plaintiff argues that the purposes of the statute were served first because suit was filed within the 6 months’ limitation and because the name of the hospital was contained in her answer to the City’s written interrogatories, in effect that the City had actual notice of the formation missing from the notice (the name of the treating hospital). But the case of Housewright v. City of LaHarpe, 51 Ill.2d 357, 361, 282 N.E.2d 437, explicitly rejected the contention of the plaintiff there, that an allegation of actual notice satisfied the statutory requirement of written notice within the 6-month period. The contention that the City waived tire notice requirement by failing to set it up as an affirmative defense in its answer and by waiting until the day of trial to raise the issue is not persuasive. In McComb v. City of Chicago, 263 Ill. 510, at 514, the court, even when giving the statute a liberal interpretation in favor of the plaintiff, was careful to point out: ‘We do not mean to be understood that the proof can be made to supply defects in the notice * * * Likewise, we can see no reason here why the holding in Helle v. Brush should be extended to nullify the 1969 amendment to the statute.

The 1969 amendment has for the first time required that the written statement give the name and address of the treating hospital or hospitals, if any. This requirement was an essential element of the notice. The plaintiff omitted this element altogether from her notice and she has not shown that she made any attempt and certainly no substantial attempt to comply with this provision, as she was required to do by the language of Minnis v. Friend, 360 Ill. 328, 196 N.E. 191. The notice, therefore, lacked a necessary element and was fatally defective. Accordingly, the motion to dismiss should have been granted and the judgment of the circuit court of Cook County is reversed.

Judgment reversed.

BURKE, J., took no part in the consideration or decision of this case.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Julio Cortes, Defendant-Appellant.
    (No. 59195;
    First District (1st Division)
    April 1, 1974.

      GOLDBERG, J., took no part.
    James J. Doherty, Public Defender, of Chicago (Thomas Lipscomb and John M. Kalnins, Assistant Public Defenders, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and John M. Cutrone, Assistant State’s Attorneys, of counsel), for the People.
   PER CURIAM.


author: Mr. JUSTICE GOLDBERG

text:
    Lincoln National Bank et al., Plaintiffs-Appellants, v. P. J. Cullerton et al., Defendants-Appellees.
    (No. 59216;
    First District (1st Division)
    April 1, 1974.
    Gann, McIntosh, Flaherty & Parker and Marovitz, Powell, Pizer & Edelstein, both of Chicago (Donald J. Parker and Nathan N. Powell, of counsel), for appellants.
    Bernard Carey, State’s Attorney, of Chicago (Sheldon Gardner and Paul P. Biebel, Jr., Assistant State’s Attorneys, of counsel), for appellees.
   Mr. JUSTICE GOLDBERG

delivered the opinion of the court:

This appeal presents additional aspects of the legal history of the personal property tax of Illinois. We are concerned here with attempts to obtain refunds of personal property taxes for 1971 paid by Lincoln National Bank and Mercantile National Bank of Chicago, both national banking associations (plaintiffs), upon capital stock issued by them and owned by various individuals. Plaintiffs bring this suit on behalf of themselves and all other taxpayers similarly situated. The defendants, all in their official capacities, ave the assessor, county treasurer and county clerk of Cook County and also the Director of the Department of Local Government Offices of Illinois and the Treasurer of the State of Illinois. The three officials of Cook County filed a motion to strike and dismiss plaintiffs’ complaint, as amended. The two State officials filed an answer to the complaint. After a hearing by the court, the motion to dismiss was granted and plaintiffs’ complaint, as amended, was dismissed with prejudice. Plaintiffs appeal. By leave of this court, the State officials have adopted the brief filed in behalf of the three county officials by the State’s Attorney of Cook County.

The comparatively simple facts appear from the properly pleaded allegations of plaintiffs’ complaint, as amended, which are deemed admitted by the motion to dismiss. (See Holiday Magic, Inc. v. Scott, 4 Ill.App.3d 962, 963, 282 N.E.2d 452 and other cases therein cited.) Plaintiffs’ complaint, as amended, alleged that they are taxpayers of Illinois doing business in this State. Despite the amendment to the Illinois Constitution of 1870 prohibiting taxation of personal property owned by individuals, the assessor of Cook County assessed all outstanding shares of bank stock as personal property and demanded payment of these taxes for the years 1970 and 1971. Numerous shares of stock in various banks were owned by individuals who were not subject to personal property taxes. Pursuant to long-standing custom, the assessor and county collector assessed and billed plaintiffs, and other Illinois banks similarly situated, for personal property taxes on the value of their outstanding shares of capital stock owned by their respective shareholders. Plaintiffs and others similarly situated paid these taxes from their general funds and did not withhold dividends from shareholders for payment of these taxes and individual shareholders did not reimburse the banks for the taxes thus paid. Demand was made upon the county treasurer for refund of these tax payments which he has refused.

The motion to dismiss filed by defendants set forth that plaintiffs are not the actual taxpayers and were not liable to pay the taxes in question so they could not bring the action. The order dismissing the cause found that natural persons are the only taxpayers entitled to refunds of personal property taxes and plaintiffs had paid the taxes as volunteers without legal obligation to do so.

In this court, plaintiffs urge that all taxes imposed upon bank stock owned by natural persons must be refunded; plaintiffs paid the tax in question under legal duress so that the payments were not voluntary; whenever taxes are paid by one person to the credit of another, the payor is entitled to reimbursement if it was reasonable for him to have made the payment; and, finally, that assessment of personal property taxes on shares of stock in national banks is specially related to Federal law governing State taxation and actual payment of such taxes by these banks has always been an integral part of the taxing scheme. Counsel for the three county officials involved in this appeal urge in response that the plaintiffs are not the primary obligators of the personal property tax which is upon stock owned by individuals; payment by plaintiffs, on behalf of its shareholders without legal obligation to do so was voluntary; and, in the absence of statutory authorization, taxes voluntarily paid cannot be recovered. Collaterally, these defendants urge that plaintiffs are not the taxpayers who should benefit from legislation authorizing refund of personal property taxes imposed after January 1, 1971.

It is necessary first to note certain legal matters which bear upon the rights of the parties. By referendum vote, article IX-A was added to the Illinois constitution of 1870 effective January 1, 1971:

“Notwithstanding any other provision of this Constitution, the taxation of personal property by valuation is prohibited as to individuals.”

The legislative and other background of this amendment appears in Lake Shore Auto Parts Co. v. Korzen, 49 Ill.2d 137, 273 N.E.2d 592. The supreme court there held article IX-A invalid on the ground “that the discrimination produced by article IX-A violates the equal-protection clause of the fourteenth amendment.” (49 Ill.2d at 151.) The United States Supreme Court reviewed this decision and held article IX-A constitutionally valid. (Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 35 L.Ed.2d 351, 93 S.Ct. 1001.) On April 25,1973, upon remand of the cause, the Illinois Supreme Court filed a supplemental opinion which confirmed exemption from “ad valorem taxation of property owned by a natural person or by two or more natural persons as joint tenants or tenants in common.” (Lake Shore Auto Parts Co. v. Korzen, 54 Ill.2d 237, 239, 296 N.E.2d 342.) The court defined personal property remaining subject to taxation, after the effective date of article IX-A of the Illinois constitution of 1870, as including that owned by limited partnerships, trusts and other fiduciaries and other similar categories. The court also used specific language regarding bank stock (54 Ill.2d at 239):

“Bank stock, like the shares of any other corporation, is exempt only when owned by a natural person or by two or more natural persons as joint tenants or tenants in common.”

Certain provisions of the Illinois Revenue Act should also be noted. Their pertinent parts may be summarized as follows:

Section 76 of the Act (Ill. Rev. Stat. 1971, ch. 120, par. 557) provides that shareholders of incorporated banks located in Illinois, whether organized under the law of Illinois or of the United States, shall be assessed and taxed upon the value of their shares of stock. Their shares are to be listed and assessed with regard to ownership and value as they existed on the first day of April, annually.

Section 77 of the Act (Ill. Rev. Stat. 1971, ch. 120, par. 558) provides that each bank shall keep a full and correct list of the names and residences of its shareholders and the number of shares held by each. The assessor is to report to the county clerk a correct list of these names and residences together with the number and assessed value of all such shares. The county clerk is to enter the valuation of the shares in the names of the respective owners thereof and to compute and extend the taxes accordingly. The tax against these shares shall remain a lien thereon until payment of the tax. In addition, for the purpose of collecting these taxes, it is the duty of every bank, or the managing officers thereof, to retain dividends belonging to the shareholders as necessary to pay taxes levied upon their shares until the taxes have been paid. Officers of any bank who pay, or authorize payment of such dividends contrary to the statutory provisions, are liable for the tax. If the tax is not paid, the collector shall sell the shares to pay the same like other personal property.

It should also be noted that, after the first opinion of the Supreme Court of Illinois in Lake Shore Auto Parts Co., (filed July 9, 1971), the legislature further amended the Revenue Act by adding section 195.01 (Ill. Rev. Stat. 1973, ch. 120, par. 676.01), effective July 27, 1972. This amendment provided that the county collector should create a special interest bearing escrow account in which he was to deposit an amount equal to all payments of ad valorem personal property taxes extended in 1972 against personal property owned by a natural person, or two or more natural persons as joint tenants or tenants in common, pending final disposition of the Lake Shore Auto Parts Co. litigation. The amendment specified that “[a]II such payments shall be considered to have been made under protest.” Each taxpayer for whom tax payments were placed in escrow was to be eligible for automatic full repayment if such personal property taxes were ultimately held invalid, notwithstanding the provisions of sections 194 and 195 of the Revenue Act which pertain to payment of taxes under protest.

It may also be of interest, if not directly essential, to note the provisions of pertinent Federal law (12 U.S.C. Sec. 548 (1971)). This statute authorizes the legislature of each State to determine and direct, subject to the provisions thereof, the manner and place of taxation of all shares of national banking associations located within its limits. The States are expressly authorized to tax the shares; or, alternatively, to include dividends derived from the shares in the taxable income of the owner and holder of the shares; to tax the bank on the net income thereof or according to or measured by the net income. Where shares are owned by nonresidents of the State, the bank itself is to pay the tax thereon as agent of the nonresident shareholders.

Each of the parties commences the argument by setting forth basic and generally accepted principles. Plaintiffs first urge that, under the constitutional provisions and statutes above noted, personal property taxes could not be imposed upon or collected on bank stock owned by natural persons. It is clear from this initial premise, which must be completely accepted, that, if these tax payments had been made by the natural persons, who are admittedly the owners of the stock in question, a refund of the taxes thus paid should be made. Defendants, however, predicate their argument upon a major premise which is equally valid. They urge that plaintiffs are not the primary obligators of the personal property tax but that the tax was owed only from the individuals who were the actual owners thereof. This legal proposition has been announced and adhered to in a number of decided cases. In People ex rel. County Collector v. First National Bank, 33 Ill.2d 457, 211 N.E.2d 713, the supreme court pointed out, “It has long been held, under the substantially identical predecessor sections of the present Revenue Act, that the holder of shares of a bank, not the bank itself, shall be assessed and taxed upon its shares.” (33 Ill.2d at 459.) This principle is quite clear particularly in cases such as the one before us which does not involve allegation or proof that a bank has declared and paid a dividend. Other authorities supporting this proposition have been cited by the supreme court. 33 Ill.2d at 459.

Thus, we have illustrated the divergent positions of the parties. Plaintiffs reason that because the stock here involved is actually owned by natural persons, tire taxes must be refunded. Defendants urge that since the banks were not primarily liable for the taxes in question, they made payment thereof as mere volunteers so that they are not entitled to obtain the refund.

It should also be noted that defendants have taken the position in this court that insofar as these 1972 tax collections represent assessments upon personal property owned by individuals, a refund should be made. The issue raised by defendants goes only to the identity of the person who should receive the refund. The question is whether the county officials should be obliged to refund to the banks, such as plaintiffs who actually paid these taxes, or to the various individuals who are the actual owners of the property assessed. In the consolidated litigation which resulted in the two opinions of the supreme court in the Lake Shore Auto Parts cases, refunds of all of the affected 1972 personal property taxes are presently being processed in the circuit court. A group of individual taxpayers have petitioned the circuit court to make the refunds involved in the case before us directly to them. The county officials, who are defendants in the circuit court, have answered this petition and have asserted that the pertinent section of the Revenue Act of Illinois (Ill. Rev. Stat. 1973, ch. 120, par. 676.01) is not clear as to whether the refund should be made to the individual who owned the bank stock or to the bank which actually made the payment. The answer further points out the pendency of the litigation in this court and the risk of inconsistent court rulings.

The basic question which thus presents itself is construction of section 195.01 of the Revenue Act to determine whether the intent of the legislature requires refund to be made to the banks or to the individuals who own the bank stock now exempt. This section of the statute first requires the county collector to establish an escrow equal to the amount of personal property taxes against property owned by natural persons. “Each taxpayer for whom such payments are placed in escrow shall be eligible for automatic full repayment * * In equity, the individual owners of the stock are undoubtedly the taxpayers in whose behalf the taxes were paid and for whom the tax payments should have been placed in escrow. In the past, when stock owned by individuals was subject to the tax, payment was actually made by the banks in behalf of the shareholders. Only a long-standing custom, utilized purely for administrative reasons, permitted the banks themselves to act in behalf of the shareholders as a conduit for payment to the taxing authorities. This procedure was of substantial benefit to the banks as well as to the taxing authorities. The tax money actually came from all of the shareholders since they were the equitable owners of all the corporate property. Each payment of taxes by the bank from its general funds operated as a pro tanto reduction of the assets of all of the shareholders. Therefore, refunds to the individuals are clearly possible and appear to be within the purview of the statute and the intention of the legislature.

Furthermore, reasoning from the premise, adopted by both sides of the controversy, that a refund of these taxes should necessarily be made, a refund to the banks would be grossly inequitable. This would enable the banks to hold these refunds as part of their general assets which in turn would redound to the proportionate benefit of all shareholders, including those legal persons not individuals to whom the legislature never intended to make refunds. To sustain plaintiffs’ contention but also to channel the refunds to the natural owners exclusively in accordance with the clear mandate of the constitutional referendum, as construed by the courts, the refunds would necessarily be made to the banks for the use and benefit of only the natural persons owning stock. This would present administrative and other problems which would best be solved by remitting the refunds directly to the individual owners entitled thereto. Machinery for this is ready to function in the proceedings in the Lake Shore Auto Parts case now pending in the circuit court.

Under these circumstances, we need not decide the issue as to whether payments by the banks were voluntary. By section 195.01 of the Revenue Act, the legislature has effectively created a statutory scheme for refund of these taxes as though they had been paid under protest. See Snyderman v. Isaacs, 31 Ill.2d 192, 194, 201 N.E.2d 106.

It foUows necessarily that the order of dismissal appealed from should be affirmed so that the process of refund can continue as indicated.

Order affirmed.

EGAN, P. J., and HALLETT, J., concur.

       The Illinois constitution of 1970 in turn provided that “Any ad valorem personal property tax abolished on or before the effective date of this Constitution shall not be reinstated.” Ill. Const. 1970, art. IX, sec. 5(b).


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Clifford Binder, Defendant-Appellant.
    (No. 59418;
    First District (1st Division)
    April 1, 1974.
    GOLDBERG, J., took no part.
   PER CURIAM.

O’Donnell, Wolff, LeVine, Mazzorana & Krupa, of Chicago (Arthur J. O’Donnell, of counsel), for appellant.

Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll and Mary Ellen Dienes, Assistant State’s Attorneys, of counsel), for the People.


author: Mr. PRESIDING JUSTICE HAYES

text:
    American National Bank, Adm’r of the Estate of Kamil W. Brazda, Deceased, et al., Plaintiffs-Appellees, v. Frank Wisniewski et al., Defendants-Appellants.
    (No. 55361;
    First District (2nd Division)
    April 2, 1974.

      Rehearing denied May 14, 1974.

      Posanski, Krohn, & Jacobs, of Chicago, for appellants.
    Mitgang, Levine & Schwartz, of Chicago (John B. Schwartz and Melvin H. Sorkin, of counsel), for appellees.
   Mr. PRESIDING JUSTICE HAYES

delivered the opinion of the court:

At approximately 5 A.M. on 22 December 1963, Kamil Brazda and the four members of his family were proceeding south on the Calumet Expressway (a divided four-lane highway) on their way to Florida for a vacation. As the Brazda automobile approached 167th Street, it was struck head-on in the southbound lanes by an automobile being driven northbound by one Albert Stynowick, who was allegedly intoxicated at the time of the accident. As a result of the collision Kamil Brazda and his son Roy were killed. Florence Brazda, Kamil’s wife, and their remaining two children, Larry and Marcia, survived. Subsequently, on 26 March 1964, Florence Brazda committed suicide by shooting herself.

Prior to the institution of the present suit, American National Bank, as administrator of the estates of Kamil, Florence, and Roy, and as guardian of the estates of Larry and Marcia, filed suit (64 C 167) in the Federal District Court for the Northern District of Illinois against Albert Stynowick (who was a resident of Indiana). The amended complaint in that case was in five counts. Count I alleged the wrongful deaths of Kamil, Florence and Roy, as well as personal injury to Larry and Marcia, all caused by the negligence of Stynowick; Count II alleged property damage to the Brazda automobile, owned by Kamil, caused by the negligence of Stynowick; Count III and Count IV were identical to Count I and Count II except that they alleged willful and wanton conduct on the part of Stynowick and prayed for a finding that malice be the gist of the action. Count V was a family expense count for the burials of Kamil, Florence, and Roy.

Judgment was entered by stipulation against Stynowick with a finding that malice was the gist of the action, as follows:

“American National Bank as administrator of the estate of Kamil W. Brazda, deceased $31,875.00
American National Bank as administrator of the estate of Florence Brazda, deceased 20,000.00
American National Bank as administrator of the estate of Roy Alan Brazda 8,000.00
American National Bank as guardian of the estate of Larry Brazda, a minor 1,000.00
American National Bank as guardian of the estate of Marcia Brazda, a minor $1,000.00”

Stynowick’s insurance carrier paid in the sum of $21,875, which was the full amount of its coverage. Thereafter, American National Bank petitioned the Probate Court to allocate $12,000 of the insurance recovery to the estate of Florence, $8,000 to the estate of Roy Alan, and $1,875 to the estate of Kamil. This latter payment was for the property damage done to the Brazda automobile. The petition was granted, and the respective amounts were so allocated. The Bank concedes that this allocation of the insurance recovery was proposed by it for the purpose of maximizing the potential recovery in the instant Dram Shop actions.

On 4 September 1964, American National Bank, in its representative capacities, filed suit in the Circuit Court of Cook County against:

(1) Frank, Hazel, Joseph, Agnes, Walter, and Helen Wisniewski, and Joseph Wines as owners and operators of the Cozy Comer Tavern; (2) Benjamin Green, Mabel Green, Leslie O. Johnson, and Leslie A. Johnson as owners and operators of the Green Shingle Tavern; and (3) a Dr. Daple, who had given a party attended by Stynowick on the night before the accident. The suit was commenced pursuant to the Dram Shop Act (Ill. Rev. Stat. 1963, ch. 43, par. 135). The second amended complaint contained three counts: Count I claimed $20,000 damages for injury to the means of support of the beneficial plaintiffs Larry and Marcia Brazda, caused by tire' death of Kamil. Count II claimed $20,000 damages for injury to the means of support of the same two beneficial plaintiffs, caused by the death of Florence Brazda. Count III claimed $10,000 damages for personal injuries to Larry, and also $10,000 damages for personal injuries to Marcia.

Appearance for the Wisniewskis was filed by Attorney Conrad W. Sanders, who had been retained by the Wisniewskis’ dram shop liability insurance carrier. On 25 June 1965, Sanders filed a notice of motion to withdraw because the insurance company which had retained him had' become insolvent. A certification on the notice of motion, dated 15 June 1965, stated that a copy of the notice had been mailed to the Wisniewskis and to Joseph Wines, care of Cozy Corner Tavern. Apparently this motion was allowed, although the order does not appear in the record.

On 23 September 1965, Dr. Daple was dismissed from the case. On 15 July 1968, the owners and operators of the Green Shingle were dismissed after having paid $2500 to the several plaintiffs for a covenant not to sue.

By a letter dated 13 November 1969, attorneys for plaintiffs advised the Wisniewskis that their insurance company had been declared insolvent, that their attorney had withdrawn, and that a default judgment would be taken against them unless they filed an appearance by 20 November 1969. The Wisniewskis thereupon obtained counsel who filed their timely appearance.

At trial Marcia and Larry Brazda testified to their recollection of the accident, to the extent of their injuries, to the effect of the accident on their lives, and to the suicide of their mother.

Albert Stynowick, the driver of the automobile which collided with the Brazda vehicle, testified on behalf of the plaintiffs that he did not have any recollection as to how the accident happened and that he imagined that he was drunk. Prior to the accident, he had arrived at the Cozy Corner Tavern about 11 P.M. on the evening of 21 December 1963. The tavern is located on the southeast corner of 171st Street and Ashland Avenue. He had come from a party at the home of Dr. Daple, from which party his wife had left at the same time in her own car. While at the tavern he drank two or three whiskey and seltzers, and felt pretty good. He left about 10 minutes to twelve. Upon leaving, and when he was a short distance eastward, his car slid off the road into-a ditch. He walked back to the tavern, called a tow truck, and, while waiting for the tow truck, had some more whiskey and seltzers. He stated he was getting kind pf drunk. The tow truck came and pulled his car out of the ditch- He then went back to the tavern to pay the tow truck driver and he imagined that he had had more to drink. He thought the bartender who was on duty that night was called “Joe”.

On cross-examination Stynowick testified that, after having left the Cozy Corner, he had gone to the Green Shingle Tavern at 159th and Western Avenue. He didn’t remember what or how much he drank there. He recalled that he had been in the Cozy Corner 10 or 15 minutes the first time, and that he had slipped off the road about a mile East. Several months before, he had worked nearby and had stopped at the tavern nearly every day for weeks. He didn’t know who the owners or bartenders were. He described the tavern as having an entrance on 171st Street; a U-shaped bar; a television hanging from the ceiling; and a pool table. He estimated the building to be 70 feet long and 50 feet wide, with the narrower side on Ashland. He thought that bottled goods were sold in the southern part of the building. He had waited half an hour for the tow truck. It had taken another half-hour to get the automobile out of the ditch. He had gotten back to the tavern, after his automobile had been pulled out, about 12:30 or 1 A.M. and had had more drinks. He had then gone to the Green Shingle, which is about 5 miles from the accident scene. He had awakened the next morning to find himself in jail.

At this point there were objections to questions as to whether Stynowick had been a party to other law suits arising out of this occurrence, as a result of which judgments had been entered against him which gave him a pecuniary interest in the pending suit. These objections were sustained.

Following redirect examination, counsel for appellants offered to prove by further cross-examination that there was a prior unsatisfied judgment against the witness arising out of the occurrence, which demonstrated his pecuniary interest in the outcome of the instant suit. This offer of proof was refused by the court.

Gladys Stynowick, the wife of Albert, testified on behalf of plaintiff. Her testimony was that, on 21 December 1963 after she and her husband had left Dr. Daple’s party, she had seen her husband stop at a small tavern (which she understood to be the Cozy Comer) where 171st Street goes under the Illinois Central tracks; that she had seen her husband get out of his car and enter the távem; that she had driven on to their home without herself stopping at the tavern; that, after having been at their home a short time, she had driven back to the tavern to see if her husband was still at the tavern; that she had seen her husband’s car still parked in the victinity of the tavern; that she had then driven back to their home arriving at about 1:30 A.M. on 22 December 1963; that in her opinion her husband had been sober when they had both left the house of Dr. Daple.

The final witness called by plaintiffs was the State trooper who had investigated the accident. He described the accident scene and testified that he had observed no noticeable injury to Mrs. Brazda; that Marcia had been bleeding slightly about her face; and that Larry had just been shaken up. The witness had talked to Stynowick and had noticed the odor of alcohol. Stynowick’s appearance had been disarranged, his speech had been slurry, and he had been thick-tongued. A breathalizer test taken in the witness’ presence had shown a reading of .19. According to the officer, such a reading indicated that the person was under the influence of intoxicating liquor.

At the close of plaintiff’s case, Count II of their complaint was dismissed on the ground that there was no evidence indicating that the mother’s suicide had been proximately caused by the collision. In addition, that portion of Count III relating to the personal injuries to Larry was stricken because the evidence adduced was insufficient to support it.

The first witness called by defendants was Frank Wisniewski. His description of his tavern differed from that given by Stynowick as to the size of the building, the location of the longer side of the building, and the shape and location of the bar. Both he and his brother Walter had been on duty the night of the accident. The witness had seen Stynowick for the first time in 1969, 4 or 5 months prior to this trial, when he and his brother had gone to the Stynowick home in connection with the letter which they had received from the attorneys for the plaintiffs about the status of the suit. The witness claimed he had not seen Stynowick in 1963.

When questioned further about the letter, plaintiffs’ attorney objected and the jury was excused. The trial judge stated that there could be no testimony as to the content of the letter (because the letter referred to the insolvency of the Wisniewskis’ insurance carrier), and that the witness could testify only to the conversation which he had then had with Stynowick.

The jury was recalled and the witness continued to testify about the visit to the Stynowick house, but he again mentioned the letter from plaintiffs’ attorneys. Plaintiffs’ attorney again objected and the jury was again excused. This time the trial judge threatened to hold the witness in contempt, and again made the point that he would not permit any testimony as to why the witness had visited Stynowick or about the letter which the witness had received. The court reiterated that, if the witness persisted, he would fine him $2,000 for contempt and send him to the County Jail. The jury was recalled and the witness completed his testimony.

The only other witness called by defendants was Walter Wisniewski. He testified that the first time he had met Stynowick was 5 months ago and that he had not seen him before that time. The witness did not recall anyone calling a tow truck on the night before the accident. The tavern was not equipped with a public telephone. If a customer wanted to make a telephone call, the bartender dialed the number on a private telephone located behind the bar and gave the receiver to the customer. In relating his conversation with Stynowick 5 months ago, the witness stated that Stynowick had told the witness and his brother that he did not know them, that he did not remember being in their place, and that he couldn’t tell them where he had been that night.

After hearing all of the evidence, the jury found in favor of plaintiffs and assessed damages as follows:

(1) to the administrator of the estate of Kamil Brazda $20,000;
(2) to the guardian of the estate of Larry Brazda “none”;
(3) to the guardian of the estate of Marcia Brazda, $1,000.

Defendants filed a post-trial motion asking the trial judge to modify the judgment by reducing the amount of the judgment by the total amount which had been received from Stynowick’s insurance carrier in the Federal suit and by the total amount which had been received for the covenant not to sue, or, in the alternative, for a new trial. Their theory was that Larry and Marcia, who were the beneficial plaintiffs in the instant case, had actually received those total amounts as the beneficial plaintiffs in the Federal action and under the covenant not to sue. The trial judge allowed a credit of $1000 on the judgment in favor of the estate of Kamil as the estate’s equitable share of the $2500 received for the covenant not to sue, but did not allow any credit at all for the ftinds received from Stynowick’s insurance carrier, because neither the estate of Kamil (in respect of Larry and Marcia’s loss of support) nor Marcia (in respect of her personal injury) had received any portion of the insurance fund. The alternative motion for a new trial was denied. Defendants appeal from the judgment entered on the jury’s verdict.

OPINION

The first issue we decide is whether and to what extent appellants are entitled to a credit either for the amount received from the owners and operators of the Green Shingle for the covenant not to sue or for the amount received from Stynowick’s insurance carrier pursuant to the judgment against him in Federal corut.

Initially, appellants contend that they are entitled to a credit for the full amount received for the covenant not to sue. We do not agree. It is true that defendants in dram shop cases are entitled to credit against the amount recoverable from them in the amount of any sums paid by co-wrongdoers for covenants not to sue. (See De Lude v. Rimek (1953), 351 Ill.App. 466, 115 N.E.2d 561.) Unlike that case, in the case at bar the amount received for the covenant was paid for a covenant not to sue on five then-asserted causes of action (only one of which might then have been deemed to have no merit). Of these five causes of action, only tile causes of the estate of Kamil Brazda and the' personal cause of Marcia Brazda remain involved in the present suit. The record further indicates that appellants have received a $1,000 credit on the $20,000 judgment in favor of the estate of Kamil Brazda. Appellants are obviously not equitably entitled to any further credits for the amount received for the covenant not to sue. Implicit in vtiiat we have just said is our acceptance of plaintiffs-appellees’ “per cause of action” approach and our rejection of defendants-appellants’ “per beneficial plaintiffs” approach. See Edenburn v. Riggins (1973), 13 Ill.App.3d 830, 301 N.E.2d 132, and the discussion immediately following herein.

Appellants next contend that they are entitled to a credit for the total amount received from Stynowick’s insurance carrier, because the affirmance of the decision below denying them such credit would allow plaintiffs to achieve a double recovery for the same injury. It is established in Illinois that for one injury there can be but one satisfaction. (See McClure v. Lence (1953), 349 Ill.App. 341, 110 N.E.2d 695.) However, a single collision or accident may give rise to a number of different causes of action. Kelly v. Hughes (1962), 33 Ill.App.2d 314, 179 N.E.2d 273.

There were four separate causes of action involved in the case at bar. (The fifth cause of action for property damage to Kamil’s automobile had been fully satisfied in his Federal suit.) These causes of action were: (1) injury to means of support of Larry and Marcia occasioned by the death of Kamil; (2) injury to means of support of Larry and Marcia occasioned by the death of Florence; (3) personal injuries to Larry; and (4) personal injuries to Marcia. Of these four causes of action, those relating to Florence and to Larry’s personal injuries were dismissed. With regard to the remaining two causes of action, to date neither Marcia for her personal injuries nor the estate of Kamil has received any money from the recovery in the Federal court suit. (As noted above, the estate of Kamil did receive $1,875, but that amount was for property damage to his automobile.)

Appellants are. not entitled to credit for the $12,000 paid to the. estate of Florence or for the $8,000 paid to the estate of Roy, because these payments were for causes of action for which there was either no recovery sought or no recovery received in the present suit. We see nothing improper on the state of this record with regard to the probate court’s allocation of the recovery from the suit in Federal court to the various estates in order to permit maximum recovery in this dram shop action. (We recognize that defendants had no opportunity, if indeed any standing, to object to the allocation proposed to and approved by the probate court. No case on point as to the propriety of this allocation in respect of its impact on defendants has been cited to us, and our own research has disclosed none. The closest analogy, which would support its propriety, is the right of a debtor, subject to the laws of bankruptcy, to prefer one creditor over other creditors by payment to one in full, though such payment renders him unable to pay the others. (Thompson v. Williams (1955), 6 Ill.2d 208, 127 N.E.2d 457.) In any event, defendants’ attack on its propriety in this action would clearly constitute a collateral attack on the decree of the probate court.) The fact remains that plaintiffs have received no double recovery for any single cause of action. See Edenburn v. Riggins (1973), 13 Ill.App.3d 830, 301 N.E.2d 132.

The second issue appellants raise in this appeal is whether there is sufficient evidence to support the verdict for plaintiffs. In order for a court of review to disturb the verdict of the jury in a civil case, in which a motion for a new trial, based on the same ground, has been denied, the verdict must be contrary to the manifest weight of the evidence. (Tuskey v. Callos (1969), 112 Ill.App.2d 213, 250 N.E.2d 524.) From our review of the evidence we cannot say that the verdict in the case at bar was contrary to the manifest weight of the evidence. The testimony of Stynowick himself and the testimony of the State trooper establish that Stynowick was under the influence of intoxicating liquor at the time of the accident. The testimony of Stynowick was that he had drinks at the Cozy Comer Tavern during the late evening of 21 December and early morning hours of 22 December 1963; and the testimony of his wife was that his car was parked in the immediate vicinity of the tavern at those hours. The testimony of Frank and Walter Wisniewski that they do not recall ever having seen Stynowick prior to visiting him at his home in 1969 and that they had closed the tavern that night earlier than Stynowick’s return and that they do not recall anyone telephoning that night for a tow track merely presents a conflict of testimony for resolution by the jury. Reed v. Knol (1972), 7 Ill.App.3d 163, 287 N.E.2d 238.

The third issue raised by appellants concerns alleged prejudicial conduct during the course of the trial on the part of the trial judge. Appellants contend that they were prejudiced in the following ways: (1) by the trial judge’s actions and remarks when admonishing Frank Wisniewski not to testify about the contends of the letter from plaintiffs’ attorneys to the Wisniewskis concerning the reason for the visit; (2) by the trial judge’s refusal to permit inquiry into the Federal court judgment for the purpose of impeaching Stynowick by demonstrating his personal pecuniary interest in the outcome; and, (3) by the trial court’s questioning of the State trooper about the result of the breathalizer test without first requiring that a foundation be laid for that testimony.

With regard to prejudicial conduct of the trial judge by not permitting Frank Wisniewski to testify about the contents of the letter, we note that the refusal was based on preventing the jury from learning that the Wisniewskis’ insurance carrier had been declared insolvent. It is within the discretion of the trial court to determine whether the injection of the matter of insurance into a case is prejudicial. (Clarke v. Rockford (1967), 79 Ill.App.2d 336, 224 N.E.2d 679.) We cannot say that this discretion was abused by the trial judge in the case at bar. Furthermore, the trial judge’s comments were made outside the presence of the jury. Such comments are not grounds for a new trial. Hann v. Milla (1968), 95 Ill.App.2d 447, 237 N.E.2d 753.

Neither was it error for the trial judge in the exercise of his discretion to refuse to permit inquiry into the Federal court judgment against Stynowick in front of the jury. It is thé function of the jury to find plaintiffs’ total damages in dram shop actions. (Tresch v. Nielsen (1965), 57 Ill.App.2d 469, 207 N.E.2d 109. If the jury had been apprised of the prior recovery, they may weH have lowered the verdict which they eventuaUy did render.

Finally, we note that no objection was made by defense counsel to the questioning by the trial judge of the State trooper. Therefore, any error with respect to this contention has not been preserved for our consideration.

Similarly, no objections appear in the record regarding appellants’ fourth and final contention that improper instructions were given to the jury. Objections to instructions must be noted in the record and report of proceedings, and failure to do so will not properly present these objections for review. (See Barrett v. Fritz (1969), 42 Ill.2d 529, 248 N.E.2d 111; Caughron v. Welnicki (1968), 95 Ill.App.2d 118, 237 N.E.2d 829.) Therefore, we do not consider this issue further.

For the foregoing reasons the judgment below is affirmed.

Affirmed.

STAMOS and LEIGHTON, JJ., concur.