text:
    Georgeann Farah, Plaintiff-Appellee, v. Elie Farah, Defendant-Appellant.
    (No. 59651;
    First District (1st Division)
    January 6, 1975.

      John C. Ambrose and Philip J. Schmidt, both of Chicago, for appellant.
    Rinella & Rinella, of Chicago (Samuel A. Rinella and Stuart N. Litwin, of counsel), for appellee.
   Mr. JUSTICE GOLDBERG

delivered the opinion of the court:

Georgeann Farah (plaintiff), wife of Elie Farah (defendant), brought suit for divorce upon grounds of physical and mental cruelty. After hearing evidence, the trial court entered a judgment granting plaintiff a divorce on the ground of physical cruelty and awarding her custody of their child, Georgeann D. Farah, presently about 3 years old. Defendant has appealed.

For better understanding of the contentions of the parties, we will first note certain factual details. The facts appear primarily from plaintiff’s own testimony. Defendant appeared at trial only by his attorney. Plaintiff was called as an adverse witness by defendant and the only other witness for defendant was his brother. Plaintiff is a citizen of the United States. Defendant is a citizen of Lebanon. The parties were married in Cook County, Illinois, on January 12, 1971. For some time, defendant, a civil engineer, was employed in Montreal, Canada, and the parties lived there for about 7 months. The child was born in Montreal. In September of 1971, the family took up residence in Chicago in a furnished apartment which they leased. Defendant was employed in Chicago. The parties made an effort to buy a home in a suburban area of Chicago but did not do so for financial reasons.

On the issue of physical cruelty, plaintiff testified that about the middle of January 1972, in their apartment in Chicago, defendant kicked her and struck her with his fists on the face, shoulders, arms and back, all without cause or provocation. In early March of 1972, at the same place, after an argument, also without any reason, he struck her with his fists on the arms and back. Plaintiff also testified that defendant thus caused her pain and suffering and that he threatened her life. Only the child was present on these occasions.

Defendant’s brother testified that he is a practicing physician in Illinois. The parties were his house guests in Chicago for five weeks before they moved to their own apartment. Then he visited them often in then home. Plaintiff never told him that defendant had struck her. When asked by counsel for defendant if he had ever seen marks or bruises about her body, he replied that he could not see anything abnormal and “I didn’t look for bruises.”

In May of 1972, parents and child left on an extended vacation during which they visited Europe and Lebanon. Plaintiff’s parents then lived in Greenwich, Connecticut. In June of 1972, the parties returned there. Defendant made a trip from Greenwich to Chicago where he remained for 4 days. He was employed in Chicago until July 4,1972. Plaintiff testified that during these months of May, June and July 1972, she had no home in Lebanon or in Greenwich but that her home continued to be in Chicago.

On cross-examination, plaintiff testified that she and her husband “lived together as man and wife” while they were on their vacation commencing in May of 1972. This situation continued until July of 1972.

Plaintiff also testified on direct examination that upon their return to Greenwich defendant told her that he would take the child to visit his sister who also lived in Greenwich. Instead, he and the child failed to return. Plaintiff did not know where defendant and the child were. She attempted, unsuccessfully, to find them by going to Chicago and making an inquiry at defendant’s place of employment. In a short time she received a cable sent by defendant from Lebanon, expressing regret at her "decision not to join us.” During that same month of July 1972, plaintiff was advised that defendant had made available to her a prepaid ticket for her air travel to Lebanon. However, plaintiff never took possession of this ticket.

Despite several attempts by plaintiff, defendant refused to permit her to see the child. She testified that on one occasion defendant told her on the telephone that she should “finish with all the lawyers” because if any lawyer was involved she would never see the baby again. Plaintiff and her American attorney went to Lebanon during August 1972. They attempted to obtain custody of the child but could not do so. Plaintiff testified that defendant then refused to permit her to see the child. She had no knowledge of the exact whereabouts of her child from July 4, 1972, -until January of 1973. Plaintiff filed suit in a civil court in Beirut, Lebanon, in which she sought divorce on the ground of cruelty, custody of the child and alimony. Apparently that suit remains pending and undetermined in the Lebanese court.

In connection with the instant proceedings, it should be noted that defendant was personally served with summons at his place of employment at Kano, Nigeria. Defendant filed a special appearance questioning the jurisdiction of the court over his person and a motion to quash service of summons. After a hearing, this motion was denied. Thereupon defendant filed a motion to dismiss the action on the ground of the pending case in Lebanon. (Ill. Rev. Stat. 1973, ch. 110, par. 48(1)(c).) After a hearing, this motion was denied. Defendant filed an answer and the cause proceeded to trial.

In this court, defendant contends that the trial court lacked jurisdiction over the subject matter and jurisdiction over his person; the proof was not adequate to support the divorce on the ground of physical cruelty because the testimony of plaintiff was uncorroborated and the findings of the trial court were thus manifestly against the weight of the evidence; plaintiff's action was barred by condonation as appears from her own testimony so that the court erred in denying defendant an opportunity to amend his answer to allege the affirmative defense of condonation; pendency of the prior action in Lebanon should be respected by this court which should refuse to proceed further on principles of comity; and the doctrine of forum non conveniens is applicable here so that the court should have dismissed the cause on that ground. Plaintiff contends that the court had proper jurisdiction over the subject matter and over the person of defendant; the evidence was sufficient to support the finding of physical cruelty; there was no evidence of condonation; section 48(1) (c) of the Civil Practice Act has no application to other actions pending in foreign countries and the principles of forum non conveniens should not be applied here.

The first points raised by defendant pertain to the jurisdiction of the trial court both as to subject matter and the person of the defendant. It is quite correct, as defendant asserts, that the trial court could not proceed without jurisdiction over the subject matter and his person. The Illinois Constitution of 1970 vested “* * * original jurisdiction of all justiciable matters * * *” in the circuit courts except for certain exceptions not pertinent here. (Ill. Const. (1970), art. VI, § 9.) This court recently defined jurisdiction of the subject matter as “* a a the power of a particular court to hear the type of case that is then before it.” (Davis v. Davis, 9 Ill.App.3d 922, 929, 293 N.E.2d 399, citing Faris v. Faris, 35 Ill.2d 305, 220 N.E.2d 210.) Under established legal principles, “* ° * the jurisdiction of courts of equity to hear and determine divorce cases is conferred only by statute” and, in turn, “* * * such jurisdiction depends upon the grant of the statute and not upon general equity powers.” Smith v. Johnson, 321 Ill. 134, 140, 151 N.E. 550.

In Illinois the pertinent statute pertaining to divorce provides that “[t]he circuit courts of the respective counties shall have jurisdiction in all cases of divorce and alimony allowed by this act.” (Ill. Rev. Stat. 1973, ch. 40, par. 5.) The statute further requires that every plaintiff reside in the State of Illinois “* * * one whole year next before filing his or her complaint, unless the offense or injury complained of was committed within this State.” (Ill. Rev. Stat. 1973, ch. 40, par. 3.) Immediately following this language is a proviso that even where the offense or injury complained of was committed within this State, plaintiff is not entitled to a divorce “* * * unless the plaintiff or the defendant shall have resided in this State for a continuous period of at least six months next before filing his or her complaint.” (Ill. Rev. Stat. 1973, ch. 40, par. 3.) This statutory requirement is of the utmost importance because it has been repeatedly held that “[t]he plaintiffs residence in a divorce case for the requisite period is necessary to confer on the court jurisdiction of his case.” Davis v. Davis, 9 Ill.App.3d 922, 929, 293 N.E.2d 399, citing McFarlin v. McFarlin, 384 Ill. 428, 51 N.E.2d 520; also People ex rel. Bradley v. McAuliffe, 24 Ill.2d 75, 80, 81, 179 N.E.2d 616.

Thus, the clear issue regarding the juridiction of the subject matter is whether plaintiff or defendant resided in Illinois for the necessary 6-month period prior to January II, 1973, when plaintiff’s complaint was filed in the circuit court. One of the leading Illinois cases on the issue of defining the word “residence” as used in these statutory grants of authority is Berlingieri v. Berlingieri, 372 Ill. 60, 22 N.E.2d 675. The supreme court carefully pointed out that residence and domicile are not synonymous. The word “domicile” is applicable in many situations with particular reference to taxation. On the contrary, the term “residence” as used in this statute “* * # was intended to have its ordinary and commonly accepted meaning.” (372 Ill. 60, 62.) Residence does not consist simply of physical presence in any particular locality. It is primarily a matter of intent. “Of paramount importance in determining whether a given place is or is not one’s residence is the intent of that person to five there as his permanent home.” (Garrison v. Garrison, 107 Ill.App.2d 311, 314, 246 N.E.2d 9.) The issue of existence of intent is purely a question which must be determined initially by the trier of fact in the trial court with due consideration for all of the evidence and circumstances of the case. Bateman v. Bateman, 337 Ill.App. 7, 13, 85 N.E.2d 196, leave to appeal denied, 403 Ill. 628.

In the case before us, the parties contracted their marriage in Illinois in January of 1971. They left Illinois temporarily while defendant was employed in Canada. In September of 1971 they returned to Chicago where they leased an apartment. They made an effort to purchase a home near Chicago. Defendant was employed in Chicago. Furthermore, there is direct evidence in the record that plaintiff’s home continued to be in Chicago continuously until July of 1972. The record is bare of evidence to the contrary. It follows that the finding that the parties were both residents of the State of Illinois when the alleged acts of physical cruelty were committed in Chicago, in January and March of 1972 is in accordance with the evidence.

The next issue is whether plaintiff abandoned her Illinois residence after July of 1972 and prior to the filing of her suit. It is true that plaintiff did leave Chicago for various reasons during this period of time. She did journey to Lebanon with her lawyer in an attempt to assert her rights to visitation of the child, but the mere fact, even of a lengthy absence under these circumstances, does not constitute abandonment. (See Cohn v. Cohn, 327 Ill.App. 22, 24, 63 N.E.2d 618.) This court dealt with a rather similar question in Davis v. Davis, 9 Ill.App.3d 922, 293 N.E.2d 399. We pointed out there that the case was different from a situation involving a transient person who entered Illinois originally for the sole purpose of obtaining a divorce. We held that the finding of residence by the trial court would not be reversed unless it was against the manifest weight of the evidence. In the case before us, the evidence fully justifies the finding of the trial court that the residence of plaintiff was in Illinois so that the circuit court had jurisdiction of the subject matter. Since his finding of the trial court is not manifestly against the weight of the evidence, we may not disturb it. Reese v. Melahn, 53 Ill.2d 508, 512, 513, 292 N.E.2d 375.

As regards the issue of jurisdiction over the person of defendant, when this suit was filed he had left the United States. Plaintiff attempted to obtain jurisdiction over him by publication and mailing of notices to him in care of three members of his family. In addition, plaintiff obtained an order of court authorizing personal service of summons by a process server. This was predicated upon section 17(1) (e) of the Civil Practice Act (Ill. Rev. Stat. 1973, ch. 110, par. 17(1) (e)) which provides for submission of the person to the jurisdiction of the courts of Illinois:

“With respect to actions of divorce and separate maintenance, the maintenance in this State of a matrimonial domicile at the time the cause of action arose or the commission in this State of any act giving rise to the cause of action.”

Summons and a copy of the complaint were actually served upon defendant personally in Kano, Nigeria. Defendant filed a special appearance in the cause and also communicated by mail with the clerk of the circuit court. The issue is, under the above statute, whether the parties had “a matrimonial domicile at the time the cause of action arose” or whether “any act giving rise to the cause of action” was committed in Illinois.

There is a scarcity of legal authority regarding the interpretation of this comparatively new section of the statute. (See Historical and Practice Notes, Ill. Ann. Stat., ch. 110, par. 17(1) (e), at page 177, (Smith-Hurd 1968), citing 16 DePaul L. Rev. 45.) Hawes v. Hawes, 130 Ill.App.2d 546, 263 N.E.2d 625, is not helpful. There, the court readily found that it did not have jurisdiction over the person of the defendant. There was no matrimonial domicile in Illinois, defendant never resided here and no material acts were committed within Illinois. (See 130 Ill.App.2d 546, 548.) In the case before us the clear language of the enactment authorizes and validates service of process on defendant outside of Illinois, both by virtue of maintenance of the matrimonial domicile in this State at the time the cause of action arose and also the commission of acts of cruelty within the State. This record shows that the parties were married in Illinois. Their matrimonial domicile was established in Illinois as both became residents of this State and remained here when the cause of action arose. Furthermore, plaintiff alleged in her complaint, and the proof supports the allegation, that acts of physical cruelty were committed upon her person by defendant in January and March of 1972 at their home in the city of Chicago. It follows that the trial court had jurisdiction over the person of defendant.

Defendant next raises three points regarding the evidence. He contends that the judgment should not have been granted upon uncorroborated testimony; the proof is insufficient to show physical cruelty which is limited to acts of violence, bodily harm or suffering or acts which endanger life or limb; and, finally, the findings of the trial court concerning cruelty are against the manifest weight of the evidence.

The need for corroboration in proof of grounds for divorce is established by section 9 of the Divorce Act. (Ill. Rev. Stat. 1973, ch. 40, par. 9.) The statute provides that in cases where the complaint is taken as confessed, the cause of divorce must be fully proven “# * * by reliable witnesses.” This language has been used in the statutes of Illinois for many years and it has consistently been interpreted as requiring that grounds of divorce must be proved by more than one witness in cases where the complaint is taken as confessed. (Kline v. Kline, 104 Ill.App. 274.) This has been the settled law of Illinois for generations. However, the statute has no application to cases in which the defendant appears in court and the issue is contested. By its express terms it applies only to cases in which “the complaint is taken as confessed.”

One of the later authorities illustrating this point and holding that “* * * corroboration is not necessary in a contested divorce proceeding” is Bilsky v. Bilsky, 18 Ill.App.3d 329, 333, 309 N.E.2d 697. (See also Surratt v. Surratt, 12 Ill.2d 21, 23, 145 N.E.2d 594.) The issue here, as in other cases, is whether the evidence of plaintiff is sufficiently credible to prove the charges by a preponderance of die evidence. Therefore, in this type of situation where the grounds for divorce are contested, “[w]hen a determination of the facts depends upon the weight and credibility to be given to the testimony of witnesses, a reviewing court will not reverse the finding of the trial court unless the finding is against the manifest weight of the evidence.” Varap v. Varap, 76 Ill.App.2d 402, 411, 222 N.E.2d 77.

As to the issue of the precise type of conduct necessary to bring any case within the statutory definition of extreme and repeated cruelty, the law of Illinois is clear and definite to the effect that (Surratt v. Surratt, 12 Ill.2d 21, 24, 145 N.E.2d 594):

“Each case must be considered upon its own facts, including the conduct of the parties before and at the time, their respective physical and mental conditions, and other circumstances relevant to the probable effect of the acts.”

It is correct that the policy of Illinois requires that a divorce should not be treated lightly and a marriage dissolved without due consideration. (McGowan v. McGowan, 15 Ill.App.3d 913, 915, 305 N.E.2d 261.) Physical cruelty may not be built upon trifling and insignificant incidents. On the other hand, it need not be shown that the physical cruelty was so aggravated as to gravely endanger the life or limb of the spouse upon whom it has been inflicted. “Two acts of physical violence resulting in pain and bodily harm, committed on separate occasions, are sufficient grounds for divorce.” (Kovack v. Kovack, 131 Ill.App.2d 382, 384, 268 N.E.2d 258, cited in Mills v. Mills, 13 Ill.App.3d 288, 289, 300 N.E.2d 842.) In the case at bar, plaintiff testified to an occasion upon which defendant kicked and struck her with his fists on the face, on the shoulders, arms and back. She testified to another occasion some 3 months later when defendant again struck her with his fists on the arms and back. She testified that both of these incidents were without reason or provocation and that defendant caused her pain and suffering and threatened her life. Plaintiff was not impeached in any degree. Her direct and positive testimony in this regard stands in the record without contradiction. The only witness called by defendant was his own brother whose testimony on this point was indirect and actually not probative.

We find that the result reached by the trial judge is fully supported by the record and it is not contrary to the manifest weight of the evidence. As regards the merits of the grounds for divorce, the judgment should be affirmed.

Defendant next raises four points on the issue of condonation. He contends that condonation is an absolute bar to a divorce; defendant had the right to amend the pleadings to conform to the proof; plaintiff’s own testimony showed she had condoned the charges of cruelty and the trial court abused its discretion in not allowing defendant to amend his pleadings by adding the defense of condonation.

Defendant’s first contention is theoretically valid. Condonation is well defined in many cases as “* * * forgiveness of an antecedent matrimonial offense on condition that it shall not be repeated and that the offender shall thereafter treat the forgiving party with conjugal kindness.” (Ollman v. Ollman, 396 Ill. 176, 181, 71 N.E.2d 50.) However, the law is equally well established that cohabitation is not necessarily equivalent to condonation. The sole fact that the husband and wife continued to live together and continued sexual relations is not, in and of itself sufficient proof of condonation. Deahl v. Deahl, 13 Ill.App.3d 150, 157, 300 N.E.2d 497, and authorities therein cited.

The basic issue to be decided here is whether there was sufficient proof of condonation. It was the duty of defendant to prove plaintiffs intent in this regard by a preponderance of the evidence. (See Deahl, 13 Ill.App.3d 150, 157, 300 N.E.2d 497.) The proof here shows simply that the parties cohabited after the last act of cruelty, which took place in March of 1972. This appears from plaintiff’s own testimony. However, defendant offered no evidence on this issue. As analyzed in view of the authorities above cited, this record presents proof simply of cohabitation with no additional evidence. There is no proof of full and free forgiveness and no proof whatsoever of any intention by plaintiff so to do. (Rasgaitis v. Rasgaitis, 347 Ill.App. 477, 480, 481, 107 N.E.2d 273.) We find this evidence insufficient to prove condonation.

Therefore, it is unnecessary for us to decide the contentions of defendant pertaining to his right to amend his answer. (Note McGaughy v. McGaughy, 410 Ill. 596, 600, 102 N.E.2d 806.) Since the proof was completely lacking, filing of an amendment to defendant’s answer would still leave him in the position of having “* * * allegations without proof in support * * *” and would have been a futile gesture. See Burke v. Burke, 12 Ill.2d 483, 487, 147 N.E.2d 373.

As above shown, defendant’s motion to dismiss the cause, because of the pendency of a similar action between the same parties in the courts of Lebanon, was denied before trial. It is agreed that such proceedings were instituted by plaintiff in Lebanon. To her knowledge, the foreign case remains pending.

Defendant’s motion was based upon section 48(1) (c) of the Civil Practice Act which provides for a motion to dismiss on the ground “[tjhat there is another action pending between the same parties for the same cause.” (Ill. Rev. Stat. 1973, ch. 110, par. 48(1)(c).) Despite the provision in this very section, that pleading over after denial of such motion was not a waiver of any error in such denial, defendant reinstated this defense in his answer. The matter was argued again before the trial judge and the judgment for divorce found this and other affirmative defenses of defendant to have no merit.

Defendant has cited no authority in support of his contention that this court should recognize and respect the pendency of a prior divorce suit in a foreign country on the basis of comity. Defendant seeks to argue certain statutes which he states in his brief exist in Lebanon and which have a bearing on this issue. However, our courts have consistently held that courts of Illinois will take judicial notice of the laws of sister states and of the United States but that “* * * the laws of foreign countries cannot be judicially noticed by Illinois courts.” (Atwood Vacuum Machine Co. v. Continental Casualty Co., 107 Ill.App.2d 248, 262, 246 N.E.2d 882.) This is in accordance with the clear provisions of the statute which provide that laws of foreign countries are not subject to judicial notice but their existence is an issue for decision by the court. Ill. Rev. Stat. 1973, ch. 51, par. 48 (k).

The only other authority cited by defendant is Hilton v. Guyot, 159 U.S. 113, 40 L.Ed. 95,16 S.Ct. 139, decided in 1895. Hilton occupies more than 100 pages of the volume. The substance of the opinion is that, in the absence of statute or treaty, principles of comity do not require the courts of the United States to enforce a judgment entered in the courts of France. Four justices dissented on the theory that this was a matter of res judicata concerning which the court had no discretion. Note the analysis of Hilton in Clubb v. Clubb, 402 Ill. 390, 395, 84 N.E.2d 366. In more modem times, we have many authorities in the State of Illinois which hold that, “The full faith and credit clause of the Federal Constitution (Art. IV, Sec. 1, U.S. Constitution) does not require an Illinois court to recognize or enforce the decree of a foreign country.” (Hager v. Hager, 1 Ill.App.3d 1047, 1050, 274 N.E.2d 157.) Hager cites a number of authorities in support of this proposition including the exhaustive opinion of the Supreme Court of Illinois in Clubb.

However, these authorities are not directly applicable here. We are not dealing with a judgment entered by a foreign court but simply with the pendency of another suit. Our search did not disclose any decision by an Illinois court deciding this exact problem. Plaintiff has directed our attention to Skolnick v. Martin, 32 Ill.2d 55, 203 N.E.2d 428, cert. denied, 381 U.S. 926. That case holds simply that section 48(1) (c) of the Civil Practice Act does apply to other actions pending in the Federal courts. Skolnick has no application to the issue before us concerning mere pend-ency of proceedings in the courts of a foreign country.

The question was considered in Pesquera Del Pacifico v. Superior Court (1949), 89 Cal. App. 2d 738, 201 P.2d 553. The California Code of Civil Procedure provides that a defendant may object to the prior pleading on the ground that “there is another action pending between the parties on the same cause of action.” (Cal. Ann. Code of Civil Procedure, § 430.10(c) (Deering 1972).) Pesquera involved an action for writ of prohibition seeking to restrain an action in the California courts on the theory that another action involving the same parties and the same subject matter was pending before the courts of Mexico. The California court denied the writ on the theory that the pendency of the action in the foreign country was not a bar to the California proceedings. The court held that it had power in its discretion to withhold further proceedings in the case if such action was warranted by the circumstances but that such abatement of the California proceedings was not a matter of right.

This result seems supported by logic and analogy. If a final judgment entered by a foreign court need not be enforced by the courts of Illinois under constitutional principles of full faith and credit, then it should necessarily follow a fortiori that the mere pendency of a prior aotion in the court of a foreign country should not constitute a bar to further proceedings before this court.

In the case before us, two separate trial judges have heard arguments on this problem and have exercised their discretion by directing that the courts of Illinois proceed to final judgment. The trial judge in particular heard the witnesses and the arguments of counsel and arrived at the same result. We have nothing before us to indicate the laws of Lebanon and what effect, if any, such laws would have upon this entire situation. There is no evidence of any pertinent treaty between the United States and Lebanon. We find nothing in this record which would cause us to hold that two judges of the circuit court abused their discretion. On the contrary, the argument might well be advanced that plaintiff was impelled to institute the proceedings in Lebanon in an effort to obtain custody or even visitation rights concerning the child. Furthermore, since the filing of the Lebanese case neither party seems to have acted to obtain a ruling by that court. The defendant’s motion to dismiss was properly denied.

We may add that defendant’s 12th contention raises an issue of “equitable estoppel.” The theory is that plaintiff filed, and participated in, the Lebanese proceedings and that defendant, having engaged counsel and participated in the suit, had changed his position so that plaintiff should be estopped from proceeding with the Illinois case. These statements are not warranted by the record. From the evidence before us, it could be argued with greater force that plaintiff was coerced into filing proceedings in Lebanon because defendant had taken custody of their child by a subterfuge and had brought the child to that country. Plaintiff was actually unable even to visit the child until after she had taken affirmative action by instituting the foreign proceedings. In addition, we find no legal authority of any kind in support of defendant’s position. He cites two cases which are both completely inapplicable here. In re Estate of Owens, 7 Ill.App.2d 428, 129 N.E.2d 573; Schulz v. Schulz, 38 Ill.App.2d 445, 187 N.E.2d 540, decision published in abstract only.

Defendant’s final contention, forum non conveniens, may be shortly disposed of. Defendant made no motion to dismiss the case on that ground but merely stated in affirmative defenses appended to his answer that he was “placed in the extremely prejudiced and costly position of trying to defend two law suits at opposite ends of the world.” It is extremely doubtful if this statement actually raises the point of forum non conveniens. Furthermore, the proper method of raising this issue would be by preliminary motion. The granting or denying of a motion to dismiss on the ground of forum non conveniens is a matter which requires the exercise of discretion by the trial court. (Fender v. St. Louis Southwestern Ry. Co., 49 Ill.2d 1, 4, 273 N.E.2d 353.) When trial has commenced the proper and feasible time for exercise of this discretion has already passed.

However, quite apart from this technical consideration, it has been specifically held “* 9 9 that the doctrine of forum non conveniens is not applicable to actions arising within the state of Illinois 9 9 ®.” (Emerton v. Canal Barge Co., Inc., 70 Ill.App.2d 49, 53, 216 N.E.2d 457, leave to appeal denied, 34 Ill.2d 629.) This court arrived at that result by virtue of a statement made by the supreme court in Cotton v. Louisville & Nashville R.R. Co., 14 Ill.2d 144, 159, 152 N.E.2d 385, that the doctrine is available “* * * as a ground for refusal by a court to exercise jurisdiction over a cause of action arising beyond the State’s boundaries.”

The wisdom of this ruling is readily apparent in the case before us. These parties were married in Illinois and resided here for some time. The acts of cruelty depended upon by plaintiff were committed within the State of Illinois. The statutes of Illinois vest our courts with' jurisdiction to hear the cause. (Ill. Rev. Stat. 1973, ch. 40, par. 3.) No other forum within the United States would have jurisdiction to grant plaintiff relief in this cause. No other state presents a forum which would better “* * * serve the convenience of the parties and the ends of justice.” Lonergan v. Crucible Steel Co., 37 Ill.2d 599, 605, 229 N.E.2d 536.

After careful consideration of each and all of the issues raised by defendant, we conclude that they are without merit and that this record is free from reversible error. The judgment is affirmed.

Judgment affirmed.

BURKE, P. J., and EGAN, J., concur.

       Note the amendment effective July 1, 1974, providing instead that where the “complaint is taken as confessed” the cause of divorce must be “fully proven.”


source: Caselaw Access Project

author: Mr. JUSTICE DEMPSEY

license: Public Domain

text:
    John A. Hyde et al., Plaintiffs-Appellants, v. John W. Lewis, Secretary of State, et al., Defendants-Appellees.
    (No. 57408;
    First District (3rd Division)
    January 9, 1975.

      John A. Hyde, of Chicago, for appellants.

      William J. Scott, Attorney General, of Springfield, (Donald S. Carnow and Michael B. Weinstein, Assistant Attorneys General, of counsel), for appellee John W. Lewis.
    Jerome Torshen, of Torshen, Cohen & Eiger, of Chicago, for appellee State Security Insurance Co.
   Mr. JUSTICE DEMPSEY

delivered the opinion of the court:

The plaintiff, John A. Hyde, an attorney at law, brought this class action seeking a declaration that the Illinois Safety Responsibility Law was unconstitutional. Named as defendants, both individually and in their official capacities, were the Secretary of State, the Director of the Department of Insurance and the Director of the Department of Public Works and Buildings. Also named were the State Security Insurance Company, and “all divers unknown insurance companies which are now or have written insurance policies under the Financial Responsibility Act of Illinois since its enactment.” In addition to a declaratory judgment, Hyde requested injunctive relief against enforcement of the Act, damages and an accounting for the allegedly wrongful premiums charged by the defendant insurance companies. Orders were entered dismissing the 23-count, 104-page second amended complaint for want of equity and denying Hyde’s motion to vacate the dismissal. The dismissal order included findings that the Act was constitutional both on its face and in application and that the complaint failed to state a cause of action.

Hyde appealed directly to the supreme court, which transferred the cause to this court. Despite the size of his complaint, the issues before us are few. Hyde asks that the provisions of article II of the Safety Responsibility Law, which required that uninsured persons involved in accidents prove their financial responsibility for the future, be declared unconstitutional on their face and as applied, and he seeks remandment for trial on the questions whether he is entitled to an injunction against the named State officers and to. the rescission of all insurance contracts ■entered into by members of the plaintiff class in compliance with the Act.

This suit followed a train of events set in motion on May 12, 1969. Qn that date, according to the allegations of thé complaint, Hyde was involved in an automobile accident in a public parking garage owned by the city of Chicago. At the time, his driver’s license and vehicle registration were in good standing, but his auto was not covered by liability insurance.

The Illinois Safety Responsibility Law, at the time relevant to the disposition of this case (Ill. Rev. Stat. 1969, ch. 95½, par. 7A — 101 et seq.), provided for the requirement of both security deposit and proof of financial responsibility for the future from persons involved in automobile accidents. The law was administered jointly by the Department of Public Works and Buildings and the Secretary of State. Accident reports were required to be filed with the Department, which, if it found that death, personal injury or more than $250 damage to property had been sustained, determined whether an involved owner or operator was one to whom the Act applied. (Section 7A — 201.) Section 7A — 202 exempted several categories of owners or operators from the requirements of the Act. The principal grounds for exemption were either adequate evidence of financial responsibility such as insurance or bonding arrangements, or facts negating a person’s liability such as ownership of a vehicle legally parked at the time of its involvement in an accident. None of these exceptions applied in Hyde’s case.

By the terms of section 7A — 201, once the Department had determined the applicability of the Act, it certified to the Secretary of State the name of the affected owner or operator and amount of security deemed necessary. Persons required to file security were also required to file proof of their future financial responsibility. (Sections 7A — 201 and 7A — 204 (C).) Within 30 days after receiving the Department’s certification and 10 days after relaying adequate notice to the individual certified, the Secretary summarily suspended his driver’s license or his vehicle registration if he had not made the necessary filings. Persons aggrieved by the action of the administering authorities could request a hearing (section 7A — 101), and suspensions were subject to judicial review under the Illinois Administrative Review Act (section 7A — 102).

Hyde received notice from the Secretary’s office shortly after his accident that he had been certified by the Department as subject to the Act. The notice stated that unless he posted a $200 security deposit and supplied proof of his future financial responsibility, his license and registration would be suspended.

Proof of financial responsibility for the future is defined in article III of the Act, as:

“* * * proof of ability to respond in damages for any liability thereafter incurred resulting from the ownership, maintenance, use or operation of a motor vehicle for bodily injury to or death of any person in the amount of $10,000, and subject to said limit for any one person injured or killed, in the amount of $20,000 for bodily injury to or death of two or more persons in any one accident and for damage to property in the amount of $5,000 resulting from any one accident. Such proof in said amounts shall be furnished for each motor vehicle registered by every person required to furnish such proof.” (Ill. Rev. Stat. 1969, ch. 95½, par. 7A — 302.)

Section 7A — 314 of the Act provided for three acceptable alternative methods of furnishing the requisite proof: a liability bond, a deposit of equivalent money or securities with the State Treasurer, or an acceptable certificate of vehicle liability insurance. For persons without substantial assets only the third choice was practicable.

Hyde paid the security deposit asked of him, but informed the office of the Secretary that he would not post proof of future responsibility “so long as the State of Illinois by and through its Department of Insurance refuses or is unable to explain to me why it permits and, by acquiescence, approves excessive rates of 25 to 50 per cent over and above the regular premium when financial responsibility coverage is requested.” He also required the Secretary to defer action on his suspension until the Department of Insurance responded to a protest he had made to it concerning the alleged surcharge. The request was not granted, nor was he granted a hearing.

In November 1969, 3 months after his suspension became effective, Hyde negotiated a contract of insurance with the defendant State Security Company. He claimed that the cost of the policy included a 5 percent surcharge for filing a certificate of the policy with tihe Secretary’s office as proof of his financial responsibility. Hyde paid all but 5 percent of the premium and State Security cancelled his coverage and notified the Secretary, who in turn suspended Hyde’s vehicle registration and driving privileges in April 1970. In order to carry on his law practice, which necessitated travel to courts in northern Illinois and neighboring states, Hyde capitulated and paid the premium balance. The policy was reinstated and the suspension lifted.

In September 1970 Hyde was discharged in the negligence action filed against him after the accident. This, under section 7A — 207 of the Act, terminated the requirement for a security deposit but did not relieve Hyde of the need to maintain proof of future responsibility. But when his November 1970 insurance premium invoice revealed a 25 percent surcharge, he refused to pay, and once again his driver’s license and registration were revoked. Despite the lapse of many months, he still had not been granted a hearing by either the Department of Insurance or the Secretary of State, so in December 1970 he filed this action. On August 4, 1971, the office of the Secretary informed Hyde that the file on his case was closed, because die Act had been amended to terminate the requirement that proof of future responsibility had to be filed in accident cases. A month later his complaint was dismissed.

While this proceeding was pending in the Circuit Court of Cook County, a case involving similar issues was being processed in the District Court of Northern Illinois. In 1970 a panel of three Federal judges upheld the constitutionality of the provisions of the Illinois act for security deposit and proof of.future responsibility. However, the Federal court also declared that the State’s failure to incorporate a hearing procedure into its administration of the law contravened the explicit language of section 7A — 101, and the State agencies concerned were ordered to implement the statutory right to a hearing. Pollion v. Lewis (N.D. Ill. 1970), 320 F.Supp. 1343.

Pollion was appealed directly to the' Supreme Court of the United States, which vacated the District Court opinion and remanded the case (403 U.S. 902 (1971)) for reconsideration in light of its decision in Bell v. Burson (1971), 402 U.S. 535. In Bell, the court scrutinized the State of Georgia’s motor-vehicle financial-responsibility law and held that where a statutory scheme significantly involves the issue of an affected individual’s liability, a State must -as a matter of due process provide a means of determining whether there is a reasonable possibility of a judgment being rendered against hiña before it may deprive him of his license and registration for failure to post security.

Like the Illinois act, the Georgia statute provided for the posting of financial responsibility for the future by all individuals who were required to file a security deposit. However, the validity of that requirement was not reached by the Supreme Court, since the period for which such proof was demanded had expired. But in the second Pollion opinion (Pollion v. Lewis (N.D. Ill. 1971), 332 F.Supp. 777), handed down soon after the entry -of the order in the present case, the principle enunciated in Bell was extended to encompass the filing of proof of future responsibility, as well as the posting of a security deposit. It was held that neither may be required, in the context of a fault-oriented financial responsibility law, without preliminary inquiry into tire likelihood whether the uninsured individual will ultimately be held responsible for his accident. Since, contrary to the language of section 7A — 101, the plaintiffs in Pollion had been unable to secure a hearing, the Act was held unconstitutional as applied.

If the controversy between Hyde and the administrators of the Safety Responsibility Law were still a live at the time of the Pollion decision it could have been resolved by that decision and the trial court might not have made its erroneous finding that the Act was validly applied by the State authorities. However, prior to the final Pollion decision and, indeed, before entry of the trial court’s order in this action, the issue was rendered moot by an amendment which deleted from the Act the requirement of proof 'of future financial responsibility. (P.A. 77-327, § 1, eff. July 22, 1971.) This was the amendment which prompted the Secretary of State to notify Hyde that his file had been closed.

Hyde acknowledges that, because of the previously described developments, the current thrust of his appeal is to secure remandment of the cause for the trial of counts 12, 13 and 14. The gist of all three is the same. Taken together, they allege that members of the plaintiff class were coerced into purchasing policies of insurance from the defendant class of insurance companies, owing to the wrongful acts of the Secretary of State and the Department of Public Works and Buildings in enforcing the law as they did; that as experts in their field State Security and other insurance companies knew or should have known that the law was not being properly applied; that in consequence the plaintiff class asks rescission of its contracts with the defendant insurers and the refund of all premiums paid under duress, together with interest and special damages.

Duress has been defined as a condition where one is induced by a wrongful act or threat of another to make a contract under circumstances which deprive him of tire exercise of his free will. (Kaplan v. Kaplan (1962), 25 Ill.2d 181, 182 N.E.2d 706.) But the use or threatened use of civil proceedings to enforce a claim is not considered duress, “* * * at least where the threatened action is made in the honest belief that a good cause of action exists, and does not involve some actual or threatened abuse of process.” (Kaplan v. Kaplan, 25 Ill.2d 181, 187, 182 N.E.2d 706.) This exception is equally effective when the party threatening suit is a governmental agency possessing extraordinary powers of coercion. In Illinois, a sale of land to township trustees for use as a school site has been held free of duress, where the terms, resulting in a sale below the land’s apparent market value, where negotiated subsequent to initiation of condemnation proceedings by the eventual buyers. Mattion v. Trustees of Schools (1971), 2 Ill.App.3d 1035, 279 N.E.2d 66; see also Mills v. Forest Preserve District (1931), 345 Ill. 503, 178 N.E. 126.

While recognizing that State authorities regrettably erred in their application of the Safety Responsibility Law, and accepting the fact that the likely effect of this enforcement was to influence Hyde and persons in similar straits to contract for liability insurance, we cannot agree that the facts alleged show legal duress. Mere error by State officers in the interpretation and application of laws regulating public activity, without more, cannot be characterized as a wrongful inducement. The natural effect of governmental regulation is to impel the restructure of certain private relationships. That which one formerly chose to do or not to do may now be required of him or prohibited, in the interest of the general welfare. Like the threat to condemn land, the threat to suspend driving privileges, when incidental to tasks with which governmental agencies are charged by law, cannot be construed as a wrongful act amounting to duress, unless at the very least it is shown that the law was applied in bad faith.

Hyde has not alleged facts demonstrating anything more than administrative insensitivity and bureaucratic indifference to his problems. We deplore the stolid response to his pleas for a hearing, but we do not find in it the bad faith needed to sustain a charge of duress. As a duly enacted State law, the Act itself was presumed constitutionally valid. (People ex rel. Koch v. Rinaker (1911), 252 Ill. 266, 96 N.E. 897.) Since it had never been challenged, State officers could rely on that presumption. Moreover, similar statutes, similarly enforced, had been upheld in other jurisdictions. Rosenblum v. Griffin (1938), 89 N.H. 314, 197 A. 701; Annot, 35 A.L.R.2d 1011 (1954).

Even if it were conceded that the State wrongfully pressured Hyde into purchasing insurance, he has stated no cause of action against the insurer which benefited from his necessity. A contract executed under duress is as a general rule voidable by the coerced party. (Kaplan v. Kaplan.) But when a third party who is a stranger to the agreement supplies the wrongful inducement, the contract will be set aside only if the beneficiary of the duress had knowledge of the wrongful inducement. (Compton v. Bunker Hill Bank (1880), 96 Ill. 301; 2 Restatement of Contracts, §§ 496, 477 (1932).) It is safe to assume that insurers like State Security were aware of the manner of enforcement of the Safety Responsibility Law. But, despite their purported expertise in this area of the law, they had no compelling reason to conclude that the obligatory purchase of insurance was wrongful, until it had been declared so by a court.

It has also been suggested that State Security exerted “moral duress” by charging Hyde a premium markup for his financial responsibility policy. Some cases do, in general terms, propound a rule that the taking of undue advantage of the business or financial stress or extreme necessities or weakness of another is moral duress. However, undue advantage has been found only under the most extreme circumstances. See, e.g., People ex rel. Buell v. Bell (1959), 20 Ill.App.2d 82, 155 N.E.2d 104, where false and fraudulent representations by a woman’s doctor and her former husband while she was hospitalized in a weakened and sedated condition were held moral duress, vitiating her signed consent to the adoption of her newborn baby. More apt, given the facts alleged in this case, is the rule that a party’s act in signing a contract remains voluntary, even if he signs because of straitened circumstances, as long as he had ample time for inquiry, examination and reflection, and the party benefiting was not responsible for the circumstances creating the necessity. (French v. Shoemaker (1871), 81 U.S. (14 Wall.) 314.) The fact that the alternatives available to Hyde were unattractive did not render his agreement a coerced one.

The judgment is affirmed.

Affirmed.

McNAMARA and MEJDA, JJ., concur.


author: Mr. PRESIDING JUSTICE McGLOON

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Fred Johnson, Defendant-Appellant.
    (Nos. 58704-5 cons.;
    First District (3rd Division)
    January 9, 1975.

      James J. Doherty, Public Defender, of Chicago (Harold A. Cowen and John Kalnins, Assistant Public Defenders, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Jerome C. Randolph, Assistant State’s Attorneys, of counsel), for the People.
   Mr. PRESIDING JUSTICE McGLOON

delivered the opinion of the court:

This is an appeal by the defendant, Fred Johnson, from an order revoking his probation which had been granted to him after his conviction for the offenses of theft and burglary. Upon the revocation of his probation the defendant was sentenced to 3 to 10 years for each offense, to run concurrently.

On March 16, 1969, the defendant pled guilty to an indictment charging him with the offenses of theft and burglary. He was sentenced to 3 years’ probation, with the first 6 months to be served in Cook County Jail. Thereafter, the defendant was again arrested and on April 16, 1971, pled guilty to the charge of theft of less than $150. For this offense he was sentenced to 50 days in the House of Corrections. Subsequently, on the petition of his probation officer, a rule to show cause was issued by the circuit court, dated February 17, 1972, seeking to revoke the prior order of probation. On March 3, 1972, the trial court entered a finding that the defendant had violated his probation by being subsequently convicted in April, 1971, and on June 23, 1972, sentenced defendant on his original convictions of theft and burglary to 3 to 10 years for each offense, to run concurrently.

We affirm the judgment and remand the cause with directions.

The defendant first argues that he was denied due process of law when, during the probation revocation hearing on March 3, 1972, he was not admonished as to his rights before he made certain admissions which, he contends, were tantamount to a plea of guilty to the charge of probation violation. During the hearing on March 3, the defendant made what appears to be a voluntary statement and further testified that he had been convicted of the crime of theft on April 16, 1971. He stated to the trial court that the conviction was the result of an arrest at which time he was found to be in possession of stolen property. In this appeal the defendant contends that these statements were equivalent to a plea of guilty to the charge that he violated the terms of his probation and that he, therefore, should have been admonished as to his rights and the consequences of his statements at the outset of the hearing, prior to their acceptance by the trial court.

Essentially the same issue was presented in People v. Beard (1974), 59 Ill.2d 220, recently decided by the Illinois Supreme Court. In People v. Beard, the defendant Delbert Beard was convicted of theft in excess of $150 and criminal trespass to a vehicle on March 28, 1988, following a bench trial in the circuit court of Cook County. He was granted probation for 2 years. In June, 1969, the State sought to revoke probation contending that defendant had failed to report to his probation officer and could not be located. A report filed by the probation officer in June, 1972, asserted that defendant had participated in a Michigan bank robbery on December 5, 1968, during the probation period, which resulted in a Federal conviction and a 25-year penitentiary sentence. His Federal conviction was affirmed on appeal.

A probation revocation hearing was conducted in June, 1972, at which Beard’s attorney, after consulting him, admitted defendant’s Federal CQnviction and his failure to report to his probation officer. The trial court revoked probation and sentenced Beard to the penitentiary for a term of 2 to 8 years. We affirmed the revocation order but vacated the sentence and directed that defendant be resentenced in accordance with the Unified Code of Corrections. People v. Beard (1973), 15 Ill.App.3d 663, 304 N.E.2d 707.

Defendant in Beard contended that the admission to the act charged as a violation of his probation was entered without warnings comparable to those required by Rule 402, which, he asserted, is designed to inform an accused of the consequences of his admission and to insure its voluntary nature. In rejecting this contention and affirming this court the supreme court stated as follows:

“Having examined the contention of defendant Beard, we do not believe that he was denied due process of law at the revocation hearing. There has never been a challenge to the conviction for which Beard was granted probation. The only factual matter involved in the revocation proceeding was Beard’s failure to report to his probation officer, which could only be explained by his Federal detention and subsequent conviction in August, 1969. The fact that defendant’s counsel admitted these facts eliminated a minimal necessity of proof which the State would ordinarily have been required to introduce. Defendant cannot claim that he was prejudiced by his counsel’s admission nor can he claim that justice was denied. (See People v. Dudley, 58 Ill.2d 57, 60.)”

Likewise, in the case at bar, we find defendant’s contention that he was denied due process of law to be without merit.

The defendant also contends that under the provisions of the Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, par. 1001 — 1—1 et seq.) he is entitled to credit for the time he served on probation against the 3- to 10-year sentences subsequently imposed upon him.

A judgment pending on appeal has not reached a final adjudication (People v. Chupich (1973), 53 Ill.2d 572, 295 N.E.2d 1; People v. Johnson (1973), 13 Ill.App.3d 1020, 304 N.E.2d 681) and is therefore subject to the provisions of the Code, effective January 1, 1973. (Ill. Rev. Stat. 1973, ch. 38, par. 1008 — 2—4.) That Code, at section 5 — 6—4 (h) provides in pertinent part:

“Time served on probation or conditional discharge shall be credited against a sentence of imprisonment or periodic imprisonment e *

We note that this section has been amended by Public Act 78 — 939, which adds the phrase, “unless the court orders otherwise.” This change in the statute is effective as of July 1, 1974 (People v. Braddock (1974), 17 Ill.App.3d 73, 308 N.E.2d 74; People ex rel. Klinger v. Howlett (1972), 50 Ill.2d 242, 278 N.E.2d 84) and, therefore, is applicable to the instant case as our decision here comes after the effective date of tire amendment.

For this reason, the cause will be remanded so that the trial court, unless it orders otherwise, may determine the total time spent on probation when imposing sentence and may issue an amended mittimus which reflects that determination so that the defendant may be credited according to the statute.

Judgment affirmed and cause remanded with directions in accordance with this opinion.

McNAMARA and MEJDA, JJ., concur.


author: PER CURIAM.

text:
    Mannie Coney, Plaintiff-Appellant, v. Nellie L. Graham et al., Defendants-Appellees.
    (No. 60082;
    First District (1st Division)
    January 6, 1975.

      Leonard R. Grazian and Norman E. Zimmerman, both of Chicago, for appellant.
    Taylor, Miller, Magner, Sprowl & Hutchings, of Chicago (John A. Hutchings and James J. Hoffnagle, of counsel), for appellee Whitmore.
   PER CURIAM.

SIMON, J., took no part.


author: Mr. JUSTICE HAYES

text:
    Devon Bank, Trustee, el al., Plaintiffs-Appellees, v. The City of Chicago, Defendant-Appellant.
    (No. 58366;
    First District (2nd Division)
    January 7, 1975.

      Richard L. Curry, Corporation Counsel, of Chicago (William R. Quinlan and Marsile J. Hughes, Assistant Corporation Counsel, of counsel), for appellant.
    No appearance for appellees.
   Mr. JUSTICE HAYES

delivered the opinion of the court:

On 22 December 1970, plaintiffs-appellees (hereinafter plaintiffs), Devon Bank as trustee under Trust No. 2003 and David and Goldie Schultz as beneficiaries under the said trust, brought this declaratory judgment action against defendant-appellant (hereinafter defendant), City of Chicago, seeking a judgment that the minimum lot area provision of the R3 General Residence District Zoning classification of the Chicago Zoning Ordinance is unconstitutional as applied to plaintiffs’ property. Plaintiffs’ property, a vacant lot at 1813-15 W. Lunt Avenue in Chicago, is situated in a district zoned as “R3, General Residence District” under the 1957 comprehensive amendment of the Chicago Zoning Ordinance. Among the uses permitted under this classification are multiple-family dwellings. Plaintiffs propose to develop the property by erecting two buildings of five townhouses each, for a total of 10 dwelling units. The property has a total frontage of approximately 88.65 feet and a depth of approximately 170.33 feet for a total area of 15,100 square feet. However, the minimum lot area requirement for property zoned R3 is not less than 2,500 square feet of lot area per dwelling unit. Hence, plaintiffs are restricted by the ordinance to a maximum of six dwelling units on their property.

On 31 July 1972, after hearing the evidence presented as to the constitutionality of the R3 classification as applied to plaintiffs’ property, the trial court made findings of fact, declared the Chicago Zoning Ordinance as applied to plaintiffs’ property null and void, and declared that plaintiffs may use their premises to build a townhouse compound to contain 10 dwelling units with provision on the premises for one parking space per unit, the development to comply in all other respects with the Building Code of Chicago and with the R4 General Residence District provisions of the Chicago Zoning Ordinance.

Defendant’s appeal from the above order raises the issue of whether plaintiffs have presented sufficient evidence to support the invalidation of the present R3 zoning ordinance as applied to then- property. To resolve this issue we turn to the trial record for the testimony bearing on the constitutionality of the R3 classification.

Aldin Mose, a licensed real estate broker familiar with the Rogers Park area, testified for plaintiffs that plaintiffs’ property is located on the south side of W. Lunt Avenue, in the block immediately west of the North Western Railroad line in the West Rogers Park area. This area is approximately 60 to 70 years old and is developed principally with single-family homes. In the 1920s, however, numerous apartment buildings were lawfully erected in the vicinity. Since then, the few residences that have been erected in the area have been mainly apartments. The witness examined several photographs depicting the neighborhood and testified as to many frame houses and some apartment buildings and townhouses in the immediate vicinity. The frame houses in the same block to the west of plaintiffs’ property are older houses tending toward obsolescence. Obsolescence means that they are deteriorating and that maintenance work is not being done. These houses are very large and are expensive to heat and maintain. In this witness’ opinion, the building of townhouses on plaintiffs’ property would upgrade the neighborhood and add longevity to it. The proposed 10 dwelling units on the property would provide over 1,500 square feet per dwelling unit, as opposed to only about 500 square feet per unit in some apartment buildings in the area. The proposed 10 units would be somewhat more crowded than townhouses on the opposite (north) side of W. Lunt Avenue, but this would not be deleterious. Under R3 zoning, plaintiffs’ property has a value of about $40,000; but, if 10 dwelling units were permitted to be built, the property would be worth about $64,000.

Alan E. Waldman, a real estate broker and appraiser whose qualifications were stipulated to by defendant, also testified for plaintiffs as to the nature of the area surrounding plaintiffs’ property. The area surrounding plaintiffs’ property was originally built up with stucco and frame single-family residences; but during the 1920s, many apartment buildings were erected in the area on comer lots and in L-shaped structures in the middle of blocks. The neighborhood is now a mixture of uses. To the west of plaintiffs’ property on the same south side of Lunt Avenue are a few two-story frame or stucco houses, and then a couple of two-flats. The next intersecting street to the west is N. Wolcott Street (1900 West). At the southeast comer of the intersection is a 36-unit three-story apartment building. Across Lunt Avenue from plaintiffs’ property are seven townhouses which abut the North Western Railroad tracks. To their west on the north side of Lunt Avenue are stucco and frame two-story residences. On the northeast corner of Lunt and Wolcott is a three-story English-basement apartment building containing 39 dwelling units, and on the southwest corner of Lunt and Wolcott is another walk-up apartment building containing 18 apartments. The seven townhouses on the north side of the street across from plaintiffs’ property comply with the R3 zoning requirements. The apartment buildings at the intersection of Lunt and Wolcott, which were built in the 1920s, are legal but nonconforming uses under the 1957 amendment to the Zoning Ordinance.

In Mr. Waldman’s opinion, development of plaintiffs’ property with townhouses is the highest and best use of the property. Townhouses have a stabilizing effect on an area, and these townhouses would have no different effect on the neighborhood than that produced by the conforming townhouses on the north side of the street. Mr. Waldman believes that proper zoning should provide some medium density point between the minimum 2,500 square feet of lot area for each dwelling unit in districts zoned R3 and the 900 square feet minimum requirement Sn R4 districts. Plaintiffs’ property under the R3 zoning is worth about $36,000; if the proposed 10-unit development were permitted, it would be worth about $53,000 or $54,000.

Richard J. McKinnon, a city planner, whose qualifications were stipulated to by plaintiffs, testified for defendant as to the nature of the area surrounding plaintiffs’ property. His testimony as to the type of buildings in the area is largely repetitive of the testimony of plaintiffs’ witnesses. In Mr. McKinnon’s opinion the present R3 zoning of plaintiffs’ property is the correct zoning in that all uses on the south frontage of Lunt Avenue in the block in which plaintiffs’ property is located are conforming except the apartment building at the intersection of Lunt and Wolcott; all uses on the north frontage of Lunt Avenue in plaintiffs’ block are conforming except the apartment buildings at the intersection of Lunt and Wolcott; and this same pattern of conforming uses in the interior of the blocks obtains in the immediate area of plaintiffs’ property. Mr. McKinnon believes that the only deleterious effect of permitting the proposed townhouses would be in establishing a precedent of violating the proper density restriction of the R3 zoning. He is of the opinion that the City Council was mistaken in the 1920s when it permitted construction of the now nonconforming apartment buildings, but that it was not mistaken in the 1950s when it established the present zoning classification of the area- Zoned ,R3, plaintiffs’ property is worth about $30,000; if the proposed 10-unit development were permitted, it would be worth about $50,000.

John McNamara, a real estate broker, appraiser, and consultant, whose qualifications were stipulated to by plaintiffs, also testified for defendant as to the area surrounding plaintiffs’ property. In Mr. McNamara’s opinion the highest and best use of plaintiffs’ property would be under its present R3 classification. This conclusion is based upon the fact that the townhouses on the north side of Lunt Avenue in the same block, as well as all new construction in the area, conform to the R3 zoning requirements. The said conforming townhouses were constructed within the last 7 years. Zoned R3, plaintiffs’ property is worth about $30,000; if the proposed 10-unit development were permitted, it would be worth about $50,000.

In addition, three residents in the block in which plaintiffs’ property is located testified to their opposition to plaintiffs’ proposed development.

In determining whether plaintiffs have presented sufficient evidence to warrant invalidating a zoning ordinance as applied to their property, the burden of proving the invalidity of the ordinance is on the plaintiffs, as the party attacking the ordinance. (Exchange National Bank v. County of Cook (1962), 25 Ill.2d 434, 185 N.E.2d 250.) Before a court will invalidate the application of a zoning ordinance to specific property, it must-be established by clear and convincing evidence that the ordinance as applied is arbitrary and unreasonable and has no substantial relation to the public health, safety, or welfare. (La Salle National Bank v. City of Evanston (1974), 57 Ill.2d 415, 312 N.E.2d 625.) Where it appears from all the facts that room exists for a difference of opinion concerning the reasonableness of a classification, the legislative judgment must be conclusive. Krom v. City of Elmhurst (1956), 8 Ill.2d 104, 133 N.E.2d 1.

From the evidence adduced, plaintiffs could argue three factors regarding the nature of their property and of the surrounding area which might tend to support a more liberal minimum density restriction per dwelling unit than that permitted under the R3 classification. The first factor is the disparity in density in the surrounding area created by the more intense uses of the existing apartment buildings. These buildings, erected long before the enactment of the 1957 zoning ordinance, are nonconforming legal uses.

In Cosmopolitan National Bank v. City of Chicago (1961), 22 Ill.2d 367, 373, 176 N.E.2d 795, the Supreme Court of Illinois reversed a judg.ment of the circuit court which permitted the plaintiff to erect a two-story townhouse containing five dwelling units upon a lot containing 6,999 square feet; the supreme court said:

“The record shows that, although the west side of Jersey is zoned R 4 and is largely built up with multiple-dwelling buildings, which presumably could not be built on their respective lots if the R 3 lot-area restrictions were applicable, the east side of the street is zoned R 3 and is for the most part built up with single-family dwellings which comply with the R3 lot-area restrictions. Thus, this is not a case of a glaring miszoning of a specific piece of property. On the contrary, the classification of plaintiffs’ property is entirely consistent not only with the zoning classification of other property on the east side of Jersey Avenue, but also with the actual construction and use of most of the property there situated.”

Neither in the instant case is plaintiffs’ property glaringly miszoned. Most of the frontage on both sides of plaintiffs’ block and in the surrounding area is in conformity with the R3 classification. Most significantly, since plaintiffs’ plan is to build townhouses, the townhouses across the street from plaintiffs’ property are in conformity with the R3 requirements. The existence of older, more crowded apartment buildings, as described by the witnesses, does not by itself make unreasonable zoning requirements providing for less crowded conditions as set forth by the City Council in 1957. Rather the existence of these buildings at the time of the present enactment may have been the very reason why a less liberal density restriction for future development was passed.

The second factor which might tend to support a more liberal density restriction per dwelling unit than that permitted under the R3 classification is the alleged trend toward obsolescence of the many frame houses on plaintiffs’ block and in the surrounding area. Mr. Mose testified that the building of townhouses would upgrade and add longevity to the neighborhood. Mr. Waldman testified that the proposed townhouses would have a stabilizing effect on the area. The trial judge found that the proposed townhouses consisting of 10 units “would be a step in the right direction toward the ultimate rehabilitation of Lunt Avenue in the vicinity of plaintiffs’ property.” Assuming all this to be true, plaintiffs have still failed to show how the restriction limiting plaintiffs’ property to townhouses with 6 rather than 10 dwelling units is unreasonable. The burden on plaintiffs is not to show the reasonableness of plaintiffs’ proposed violatory improvement but to show by clear and convincing evidence the unreasonableness of the existing zoning. The very existence of the conforming townhouses across the street tends to rebut an argument that nonconforming townhouses are needed to upgrade the community and that plaintiffs’ plan is the only feasible plan for construction of townhouses. Townhouses have been built, and may still be built, under the R3 classification.

The final factor that might tend to support a more liberal density restriction per dwelling unit than that provided under the R3 classification is the fact that plaintiffs’ property is worth considerably more if 10 units may be built upon it than it is under the existing restrictions limiting the property to 6 units. It is normally the case that, where property is put to a more intense use, it will increase in value; but this, by itself, does not mean that the less intense use is necessarily unreasonable and that the ordinance must be invalidated. Elmer Clavey, Inc. v. City of Highland Park (1966), 75 Ill.App.2d 464, 220 N.E.2d 93.

Having examined these factors, we conclude that plaintiffs have failed to establish by clear and convincing evidence that the R3 classification as applied to plaintiffs’ property is arbitrary and unreasonable and has no substantial relation to the public health, safety or welfare. We conclude that the trial court erred in finding tihe defendant’s ordinance void as applied to plaintiffs’ property.

Accordingly, the judgment of the circuit court of Cook County is reversed.

Reversed.

DOWNING, P. J., and STAMOS, J., concur.

       Plaintiffs have filed no answering brief.


author: Mr. JUSTICE McNAMARA

text:
      In re Estate of Joseph J. Waitkevich, Deceased.—(Michael B. Susman, Attorney-in-Fact for Ionas Ruzas, Petitioner-Appellant, v. West Pullman Savings & Loan Association et al., Respondents-Appellees.)
    (No. 59224;
    First District (3rd Division)
    January 9, 1975.

      Michael B. Susman and Robert J. Krull, of Chicago, for appellant.
    Gomberg & Sharfman, Ltd., of Chicago (David L. Gomberg, Robert J. Sharfman, and Ronald S. Gertzman, of counsel), for appellees.
   Mr. JUSTICE McNAMARA

delivered the opinion of the court:

This is an appeal from an order of the circuit court of Cook County dismissing a verified petition for citation for recovery of assets of the estate of Joseph J. Waitkevich. Petitioner is Michael B. Susman, attorney-in-fact for lonas Ruzas, nephew and heir at law of the decedent. Respondents are West Pullman Savings and Loan Association and Felix Palilunas, the alleged beneficiary of a payable on death savings account created by decedent at West Pullman. At the conclusion of a hearing on the petition, the court found that the funds in the account belonged to Palilunas. Only the respondent West Pullman has filed an answering brief. Palilunas has filed an appearance but has not filed an answering brief.

The pertinent evidence is undisputed. On or about October 9, 1954, Waitkevich opened an individual savings account at West Pullman. Among the documents he signed at that time were a signature card specifying him as an individual holder and a ledger card which would record his future deposits and withdrawals. When Waitkevich died on January 30, 1970, the amount in his savings account was $11,524.79. Sometime subsequent to his death, West Pullman paid out the savings to Palilunas. At oral argument, counsel for West Pullman stated, however, that the savings were actually transferred to Palilunas’ account at West Pullman and that except for decedent’s funeral expenses, he believed that the remainder of the funds have remained in a frozen status awaiting the outcome of this appeal.

Casmire Deuruski, executive vice-president of West Pullman and the person in charge of the association’s records, testified that he transferred the funds from Waitkevich’s account to Palilunas’ after he had seen a signature card for an individual account bearing decedent’s signature and containing the typed words “Payable on death, Felix Palilunas.” According to the witness, the signature card has been lost or misplaced. Although Deuruski was not employed by West Pullman until 1958, he stated that he “would almost be certain” that the signature card he had seen subsequent to decedent’s death was the same one originally signed by Waitkevich in 1954. Deuruski admitted that he had no knowledge as to when or by whose direction the typed portion of the card was added. He further testified that the ledger card, also signed by decedent in 1954, bore the typed notation “POD Felis [sic] Palilunas, 6901 W. Englewood.” The parties agree that this phrase was typed on the ledger card on a typewriter different from the one used for the rest of the card. Again, Deuruski had no knowledge on whose direction or when these words were added to the ledger card. He also testified that the passbook for the savings account produced by Palilunas subsequent to decedent’s death contained a legend “of similar nature” to the one found on the ledger card. The passbook was not received in evidence.

Palilunas testified that he lived at 6901 W. Englewood from 1959 to 1968.

Petitioner contends that the evidence adduced at the hearing was insufficient to establish statutory compliance with the provision dealing with the creation of payable on death (POD) accounts. West Pullman argues to the contrary and further maintains that the order of the trial court can be sustained on the basis of a resulting trust theory.

The applicable statute, section 4 — 10(c) of the Illinois Savings and Loan Act (Ill. Rev. Stat. 1969, ch. 32, par. 770(c)), reads in pertinent part as follows:

‘If a person opening or holding a withdrawable capital account shall execute a written agreement with the association * * * providing that on the death of the person named as holder, the account shall be paid to or held by another person or persons, the account, and any balance thereof which exists from time to time, shall be held as a payment on death account and unless otherwise agreed * * e:
(1) Upon the death of the holder of the account, the person or persons designated by him and who have survived him shall be the owners of the account * * * and any payment made by the association * * * to any of such persons shall be a complete discharge of the association’s * * # obligation as to the amount paid * *

We shall first consider the issue of whether the legends appearing on the ledger card and allegedly seen on the passbook satisfied the statutory requirement that the holder “execute a written agreement with the association.”

The ledger card was introduced into evidence. On the top appears the typed name “Wiafkevich [sic], J. J.,” with decedent’s address stated below. His signature appears at the very bottom of the card; The parties agree that decedent signed the ledger card at the time the savings account at West Pullman was opened October 9, 1954. Below decedent’s typed name is the typed legend “POD Felis [sic] Palilunas, 6901 W. Englewood.” This phrase was typed on a typewriter different from the one used for the rest of the card. Although no one knows when the legend was placed on the card, it is agreed that it could not have been added earlier than 1959, since that is when Palilunas moved to that address. Although decedent’s passbook was not introduced into evidence, Deuruski testified that it contained a legend similar in nature to the one found on the ledger card.

In our view, the phrases typed on the ledger card and purportedly typed on the passbook do not satisfy the requirement of a “written agreement.” The phrases are mere notations, not agreements. They fail to make clear whether they were made by or at the direction of the holder of the account. Moreover, decedent signed the ledger card long before the addition of the typed phrase. We do not believe that trial courts, however sympathetic they may be toward promoting the validity of such a “poor man’s will,” should be burdened with the task of indulging in presumption or conjectures in the face of the statutory mandate that the evidence show the existence of the execution of a written agreement. See McGovern, The Payable On Death Account and Other Will Substitutes (1972), 67 Nw. U.L. Rev. 7, 12.

Since this statute became law in 1955, relatively few cases have dealt with the type of evidence needed to satisfy the statute. In all the cases in which our courts have sustained the position that a POD account did exist, either a signature card signed by the holder detailing the terms of the agreement was produced at trial (In re Estate of La Pierre (1974), 20 Ill.App.3d 429, 314 N.E.2d 309; Estate of Schwendeman v. State Savings & Loan Association (1969), 112 Ill.App.2d 273, 251 N.E.2d 99; In re Estate of Gubala (1967), 81 Ill.App.2d 378, 225 N.E.2d 646), or the issue before the court did not concern the actual existence of such an account. Johnson v. Garellick (1969), 118 Ill.App.2d 80, 254 N.E.2d 597.

West Pullman cites In re Estate of La Pierre (1971), 132 Ill.App.2d 751, 270 N.E.2d 579, in support of its proposition that the evidence was sufficient to satisfy the statute governing POD accounts. In that case, the association maintained that it had lost or mislaid the signature card delineating the aUeged payable on death agreement. This court held that the trial court had erred in permitting evidence of the association’s custom to substitute for the statutory requirement of a written agreement, and remanded the cause for further hearings because the lost signature card had been located. This court also held that the claimed beneficiary could not rely on a certificate of deposit which stated on its face the printed name of the holder foUowed by the initials “P.O.D.” The specific reason given for this decision was the failure of the certificate to show the name of the designated beneficiary and not the fact that the certificate contained a notation rather than a written agreement. However, since the court did not have to reach the question of the validity of a complete notation, that case offers no support to West Pullman’s position here. See In re Estate of Macak (1973), 14 Ill.App.3d 261, 302 N.E.2d 436.

Therefore, we hold that the fact that a notation was found typed on a ledger card and passbook of the decedent indicating the purported existence of a payable on death account was insufficient as a matter of law to fulfill the statutory mandate that there be evidence of a written agreement executed by the creator.

We next consider Deuruski’s testimony that he saw the missing signature card of decedent containing a typed notation “Payable on Death, Felix Palilunas.”

Although Deuruski was not employed by West Pullman in 1954, he testified, without objection by either respondent, that he “would almost be certain” that the card he had seen was the same one the decedent had signed in 1954. The only thing which had been added was the typed phrase stated above purporting to make the account a payable on death account. The witness testified that he had no idea when or at whose direction the notation had been added to the card.

A blank facsimile signature card for an individual account was introduced into evidence. There is no doubt that had there been evidence on such a signature card of an authorized change in the nature of the account to one payable on death the statutory requirement of a written agreement would have been met. (See Estate of Schwendeman v. State Savings & Loan Association, supra.) Such is not the case here.

A payable on death account is a will substitute, a specific statutory exception to the prescribed manner of making a testamentary disposition found in the Statute of Wills. (In re Estate of Gubala, supra.) Accordingly, we believe the statute creating such accounts should be strictly construed. There is absolutely no evidence as to when or at whose direction the account was changed to one denoting a payable on death relationship. The only inference which can be drawn from the record is that decedent’s signature on the card antedated the change. Despite the fact that decedent was a customer of West Pullman for many years, no employee of the association or other witness was produced who could relate that decedent knew of the change.

We do not mean to discourage payable on death accounts as will substitutes. We simply hold that the evidence must reflect the account holder’s intent. Claims cannot be dubious or ambiguous. Consequently, we hold that the evidence adduced at the hearing failed to meet the statutory prerequisites of a valid payable on death account.

West Pullman also urges that the trial court’s order can be sustained by imposing a resulting trust on the funds in the account. Although this argument was not presented to the trial court, we recognize that any argument may be relied on in support of a judgment on appeal as long as a factual basis for such a point was before the trial court. Shaw v. Lorenz (1969), 42 Ill.2d 246, 246 N.E.2d 285.

A resulting trust arises by operation of law and is founded on the presumed intent of the parties as ascertained from their acts and attendant circumstances. (Hanley v. Hanley (1958), 14 Ill.2d 566, 152 N.E.2d 879.) Although various kinds of transactions have been held to constitute resulting trusts, the most common have been in cases where an express trust has been held ineffective (Waggner v. Clauson (1948), 399 Ill. 403, 78 N.E.2d 203) or where there is evidence of payment of consideration by one party for conveyance of title to property to another. (Scanlon v. Scanlon (1955), 6 Ill.2d 224, 127 N.E.2d 435.) The evidence must be clear, convincing, and unmistakable before such a doctrine will be utilized. Tuntland v. Haugen (1948), 399 Ill. 595, 78 N.E.2d 308.

West Pullman’s position is that the intent as manifested by decedent’s actions was clearly directed toward giving his “only surviving friend,” and not some distant relative, the funds in the estate. In the first place, the record does not furnish any indication whatsoever of decedent’s intent or of the purported friendship between himself and Palilunas. Moreover, West Pullman’s argument does not detail how the actions taken here fit within any of the well-established transactions supporting the imposition of a resulting trust. The facts and holding in In re Estate of Roth (1968), 96 Ill.App.2d 292, 238 N.E.2d 607, cited by West Pullman, are inapposite to the present case.

Accordingly, the order of the circuit court of Cook County dismissing the citation petition is reversed, and the cause is remanded for further proceedings not inconsistent with the holdings of this opinion.

Order reversed and remanded.

DEMPSEY and MEJDA, JJ., concur.


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    Saul S. Sherman et al., Plaintiffs-Appellants, v. The Home Insurance Company et al., Defendants-Appellees.
    (No. 59248;
    First District (3rd Division)
    January 9, 1975.

      Julie H. Friedman, Michael L. Shakman, and Arthur W. Friedman, all of Devoe, Shadur & Krupp, of Chicago, for appellants.
    Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (D. Kendall Griffith, Thomas M. Hamilton, and Stanley J. Davidson, of counsel), for appellees.
   Mr. JUSTICE DEMPSEY

delivered the opinion of the court:

This is an appeal from the dismissal of the plaintiffs’ complaint against their insurers, The Home Insurance Company and the Federal Insurance Company, for failure to represent them in a legal action.

A personal injury suit was filed against Rockford Iron Works, Inc., a Delaware corporation, on March 25, 1970. The complaint, brought by James Cobban, alleged that he was severely injured in the course of his employment when a punch press manufactured by Rockford malfunctioned.

Rockford Iron Works had been dissolved in June 1966. The plaintiffs were shareholders of the corporation and its assets had been distributed among them. On learning of the suit against Rockford the plaintiffs determined that Rockford had a defense to the suit under section 278 of the Delaware Business Corporation Act, which provides that a lawsuit cannot be commenced against a corporation which has been dissolved for 3 years. However, with no corporate entity to assert the defense, the plaintiffs foresaw that a default judgment would be entered against Rockford. If this happened, they were apprehensive that they might be called upon to pay the judgment. Section 325(b) of the Delaware Business Corporation Act provides that a default judgment can be pursued against the shareholders of a dissolved corporation to the extent of the assets distributed to them. According to the plaintiffs’ interpretation of Delaware law, if the judgment were pursued against them it was doubtful whether the complete defense provided by section 278 of the Delaware Act would be available to them as individuals. They determined that it would be in their best interest to prevent a default judgment from being entered against Rockford. They decided, therefore, to enter the case and raise the section 278 defense on behalf of the corporation.

The plaintiffs Saul and Devorah Sherman were insured by The Home Insurance Company and the Federal Insurance Company; the plaintiff Shirley Cohen was insured by CNA Insurance and the Insurance Company of North America; the plaintiff David Emerman, as trustee, was insured by the Travelers Indemnity Company. Each insurance policy contained a substantially identical provision that the company would defend any suit brought against its insured which alleged bodily injury, and would pay all sums which its insured would be legally obligated to pay as damages because of such bodily injury.

The plaintiffs asked the carriers to assume the defense of the Cobban suit. They explained that they could ultimately be held liable for the damages awarded Cobban and that it would be to their advantage to enter the suit and raise the complete defense provided by section 278 rather than wait for a default judgment to be entered and be named as defendants in a separate suit. The carriers refused to defend, and the plaintiffs retained counsel to represent Rockford. Their counsel moved to dismiss on the ground that a Delaware corporation could not be sued more than 3 years after it was dissolved. The motion was sustained, and Rockford was dismissed from the suit.

The plaintiffs then demanded that their insurers repay them the fees they had paid and the costs they had expended in defending the Cob-ban suit. The insurers refused and the plaintiffs brought this action. The Home and Federal insurance companies moved to strike the complaint. Their motion was granted and the plaintiffs appealed. The action is pending in the trial court against the remaining three defendants, but the court’s order stated there was no just reason to delay the present appeal.

Home and Federal’s motion to strike in the trial court and their position in this court are the same: they were not obligated to represent Saul and Devorah Sherman because the Shermans were not named as defendants in the Cobban suit, and nowhere in the Cobban complaint was liability asserted against them as individuals or as shareholders. Additionally, Home Insurance contends that the Shermans were not entitled to representation because their liability, if any, would be in the nature of a “business pursuit” which coverage was excluded from the Home policy.

An insurer must defend a suit brought against its insured when the complaint states facts which fall within the potential coverage of the1 policy. If the complaint does not state facts bringing it within the policy, the insurance company may decline to defend the suit. (Fragman Construction Co. v. Preston Construction Co. (1971), 1 Ill.App.3d 1002, 274 N.E.2d 614; Midwest Contractors Equipment Co. v. Bituminous Casualty Corp. (1969), 112 Ill.App.2d 134, 251 N.E.2d 349.) An unjustified refusal to defend makes the company liable for the amount recovered from its insured either by way of judgment or settlement, for his costs in defending the suit and for any additional damages caused by its refusal to defend. Sims v. Illinois National Casualty Co. (1963), 43 Ill.App.2d 184, 193 N.E.2d 123.

• An insurance company’s obligation to represent its insured depends on the allegations of the complaint and the provisions of the insurance policy. (Hartford Accident & Indemnity Co. v. Case Foundation Co. (1973), 10 Ill.App.3d 115, 294 N.E.2d 7.) In Sims the court affirmed the general rule that the personal injury complaint must show on its face that there is no coverage before an insurance carrier can safely refuse to defend.

There was no indication in the Cobban complaint that the Shermans might possibly be sued for damages caused by personal injury.' It was only through their own theory concerning their potential involvement that a contingent liability might conceivably be envisioned. The insurance companies were not required to consider contingencies not discernible in the complaint. The plaintiffs determination that it was in their best interests to enter the suit was a plausible one but was neither indicated nor dictated by the complaint itself, and, therefore, the companies were not obligated to represent them.

The plaintiffs argue that Sprayregen v. American Indemnity Co. (1969), 105 Ill.App.2d 318, 245 N.E.2d 556, supports the duty of an insurance company to consider known facts outside the complaint in determining the coverage of its policy. However, in Sprayregen the court held that the complaint itself indicated that there was a potential cause of action against the insured. The complaint stated that the address of the property where the injury occurred was adjacent to the insured property, and it also stated that there was a wooden projection in front of the premises where the injury occurred. There was such a projection in front of the insured’s property. Furthermore, the policy definition of insured property included the ways immediately adjoining it, so that under the complaint alleging injury on adjacent property the insured could have been potentially hable. The court’s conclusion that the company was bound to represent its insured was based on the allegations o£ the complaint and on the terms of the policy; it did not espouse the plaintiffs’ proposition that an insurance company should consider known facts outside the complaint.

The plaintiffs have cited several cases from other jurisdictions which do state that insurance companies must consider facts known to them which conflict with a complaint when they determine whether there is potential coverage under their policies. (Crum v. Anchor Casualty Co. (1963), 264 Minn. 378, 119 N.W.2d 703; Albuquerque Gravel Products Co. v. American Employers Insurance Co. (10th Cir. 1960), 282 F.2d 218; Hardware Mutual Casualty Co. v. Hilderbrandt (10th Cir. 1940), 119 F.2d 291; see also Annot, 50 A.L.R.2d 458 (1956).) While these cases are impressive they are contrary to prevailing Illinois law.

Because we hold that the defendants did not have the duty to represent the plaintiffs, we need not reach the issue raised by The Home Insurance Company regarding the effect of the exclusionary clause in its policy concerning the “business pursuits” of those it insured.

The order of the trial court is affirmed.

Affirmed.

McGLOON, P. J., and MEJDA, J., concur.


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    The People of the State of Illinois, Plaintiff-Appellee, v. Robert G. Edmonds, a/k/a Joseph Evans, Defendant-Appellant.
    (No. 59751;
    First District (3rd Division)
    January 9, 1975.

      Paul Bradley and Brenda Richey, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Michael J. Goggin, Assistant State’s Attorneys, of counsel), for the People.
   PER CURIAM.