author: PRESIDING JUSTICE RAKOWSKI

text:
    PEKIN INSURANCE COMPANY, Plaintiff-Appellant, v. U.S. CREDIT FUNDING, LTD., et al., Defendants-Appellees.
    First District (6th Division)
    No. 1—90—0635
    Opinion filed March 28, 1991.
    Rehearing denied May 22, 1991.

      Pretzel & Stouffer, Chartered, of Chicago (Robert Marc Chemers, Scott 0. Reed, and Robert J. Franco, of counsel), for appellant.
    Pinderski & Pinderski, Ltd., of Palatine (Jerome W. Pinderski, Jr., and Paul C. Pinderski, of counsel), for appellees.
   PRESIDING JUSTICE RAKOWSKI

delivered the opinion of the court:

Plaintiff-appellant Pekin Insurance Company (Pekin) brought a declaratory action against its insured, U.S. Credit Funding, Ltd. (U.S. Credit), seeking to obtain a declaration that Pekin’s insurance policy did not obligate Pekin to defend or indemnify U.S. Credit in a lawsuit brought on behalf of Beth Trilling, a minor. The Trilling lawsuit arose from an accident occurring on January 22, 1987, in which Beth TriHing was struck by an automobile driven by defendant Heather Gould. A bench trial ensued, and the trial court entered judgment against Pekin. Pekin appeals the entry of judgment against it and in favor of defendants. A number of issues are raised on appeal, including: (1) whether the trial court’s finding that U.S. Credit owned the automobile involved in the accident was against the manifest weight of the evidence; and (2) whether section 154 of the Insurance Code (Ill. Rev. Stat. 1987, ch. 73, par. 766) precludes Pekin from raising the defense of fraud with respect to the issue of U.S. Credit’s ownership of the vehicle. We reverse.

On January 22, 1987, Heather Gould, a minor and the daughter of Jack Gould, a principal of U.S. Credit, was driving a 1976 Ford Granada car. The car struck and injured Trilling. Later that same day, Jack Gould applied for and was issued by Pekin a business automobile policy to insure three automobiles, including the 1976 Ford Granada. The trial court found that Gould made a material misrepresentation to Pekin regarding his knowledge of the accident. Defendant Trilling does not dispute the existence of this material misrepresentation on the part of Gould. The result of this misrepresentation was that the policy was backdated to become effective January 21, 1987, so as to provide coverage for the Trilling lawsuit.

At trial, Jack Gould testified that the Granada was owned by U.S. Credit, although at his deposition he conceded that his wife Roberta Gould’s name was on the title to the vehicle. Gould contended that the vehicle had been transferred to U.S. Credit several months before it was placed on the Pekin policy. He said that there was a handwritten receipt for the transfer, but he could produce no written documentation supporting the transfer. Gould further testified at trial that after the accident, he told a representative of the towing company that U.S. Credit was the owner of the car at the time. At his deposition, however, he stated that he thought his wife was listed as the owner when the car was given over to the tow truck driver.

Roberta Gould testified at trial that in October of 1986, she sold the subject automobile to U.S. Credit for $100.00. She was not sure whether the sale was for cash or check, and though she thought the car may have been paid for by check, she did not have a cancelled check concerning the payment. She testified that she did have a copy of the handwritten bill of sale, but this was not admitted into evidence.

Prior to trial, on March 21, 1988, Pekin filed a request to admit facts, which U.S. Credit and Heather Gould never answered. Requests numbers three and four stated:

“3. That on January 22, 1987, U.S. CREDIT FUNDING, LTD. was not the title holder of the 1976 Ford automobile.
4. That U.S. CREDIT FUNDING, LTD. did not purchase the aforesaid 1976 Ford automobile on or prior to January 21,1987.”

During cross-examination of Jack Gould, Pekin offered a certified copy of the Hlinois Secretary of State’s records pertaining to the title of the 1976 Ford Granada. This record, which was introduced into evidence, contained a duplicate certificate of title in the name of Roberta Gould. This certificate, Pekin asserts and Trilling does not dispute, is dated November 14,1986.

Pekin did not attach a copy of the application for insurance to the policy. At trial, testimony from a Pekin representative established that the policy application and Secretary of State records were considered in determining whether to underwrite a particular policy. On the application for the policy in question, only Jack Gould and his partner at U.S. Credit, John Spiess, were listed as the drivers, and U.S. Credit was listed as the owner. Pekin would not have underwritten the policy at the risk indicated on the application had Pekin known either that the automobile was involved in an accident on January 22, 1987, or that there was going to be an underaged driver of the vehicle. Had the application indicated that the Granada was owned by someone other than the named insured (U.S. Credit), the vehicle would have had to be insured on another policy.

Before resolving the issues we are confronted with, we clarify that we are not confronted with the issue of whether the policy itself could provide coverage on a vehicle which the insured did not “own.” The sole basis of Pekin’s complaint was that the misrepresentation that U.S. Credit owned the vehicle absolved Pekin from responsibility under the policy. The parties in their briefs have both taken the position that if U.S. Credit did not own the vehicle, a representation that it did own the vehicle could absolve Pekin of responsibility.

Pekin argues that the trial court’s finding that U.S. Credit owned the Granada was contrary to the manifest weight of the evidence. Pekin’s argument here is that the Secretary of State’s certificate of title, which indicated that Roberta Gould’s name appeared on a duplicate title application for the vehicle, was not sufficiently rebutted by competent evidence of contrary ownership."

Trilling argues the certificate of title listing Roberta Gould as the duplicate title holder is not presumptive evidence that Roberta Gould was, in fact, the owner of the vehicle. The certificate of title, however, “is evidence of title, though it is not conclusive and one can own an automobile though the certificate of title is in the name of another.” (Emphasis in original.) (State Farm Mutual Automobile Insurance Co. v. Lucas (1977), 50 Ill. App. 3d 894, 898, 365 N.E.2d 1329.) A prima facie presumption of ownership arises from a certificate of title; this presumption may be rebutted by competent evidence of actual ownership. (Klein v. Pritikin (1972), 6 Ill. App. 3d 323, 328, 285 N.E.2d 457.) Thus, the duplicate title application did present presumptive evidence of ownership, and the issue is whether this presumption of ownership was sufficiently rebutted by competent evidence at trial.

Trilling argues that there was a sale by Roberta Gould of the Granada to her husband’s business in the fall of 1986, and that subsequent to this sale, her husband’s business became incorporated in December of 1986. Then, according to Trilling’s theory, the unincorporated business “transferred” the Granada to U.S. Credit, the newly formed corporation. Either separate to this argument, or in conjunction with it, Trilling argues that the testimony of the Goulds as to the purchase of the automobile and U.S. Credit’s dominion over the automobile was uncontradicted at trial and, hence, the trial court’s finding that U.S. Credit owned the automobile must stand. Neither argument is persuasive.

Trilling’s first argument is unpersuasive for a number of reasons. First and foremost, Trilling has pointed to no evidence adduced at trial which supports the theory of a precorporate transfer. To be sure, discovery in the case revealed that U.S. Credit was incorporated in December of 1986. Trilling has not, however, pointed to any evidence of record establishing the facts of and circumstances surrounding the precorporate transfer of assets from the unincorporated entity to U.S. Credit. Trilling relies on the argument she advanced in response to a motion for summary judgment that it can be reasonably surmized that, upon incorporation, the assets of the unincorporated entity were transferred to U.S. Credit. Whether the inference of, in the absence of facts, the precorporate “transfer” was a proper basis to deny summary judgment is an issue that is not before us. The important point is that no facts supporting the theory were elicited at trial. Moreover, we note that the record reflects that the incorporator of U.S. Credit was an entity named “U.S. Credit Repair Center, Ltd.” Roberta Gould’s testimony was that she sold the Granada to U.S. Credit, not to this prior entity. In the absence of any plausible evidence at trial supporting Trilling’s precorporate transfer theory, we refuse to adopt it.

Trilling also argues that the evidence of the sale to U.S. Credit was uncontradicted, and that this, along with the testimony of U.S. Credit’s control over and use of the vehicle, or the latter standing alone, requires that we affirm the trial court’s finding on the ownership issue. Initially, we note that the presumption of ownership was that Roberta Gould was the owner, given the content of the certificate of title. (Klein, 6 Ill. App. 3d 323, 285 N.E.2d 457. supra) In light of this, and given that Trilling has not provided any authority in support of the contention, we do not believe- that evidence of .use and control over a vehicle, alone, is sufficient to rebut the presumption of ownership.

Moreover, we hold that the testimony of the Goulds at trial was so inherently unbelievable that the presumption of ownership was unrebutted. The evidence defendants put forth to rebut this presumption consisted of testimony that was often impeached and was contradictory. For instance, as Pekin points out, there was a discrepancy between Jack and Roberta Gould as to whether the purchase was made by cash or check. At his deposition, Jack Gould thought that Roberta Gould was listed as the owner of the vehicle at the time it was given to the towing company, after the accident. No check was produced, nor any other evidence documenting the purchase. Roberta Gould testified that she had a bill of sale for the purchase, which was not introduced into evidence. The record reveals this handwritten document, dated in October of 1986, to reflect a sale to “U.S. Credit Funding.”

“U.S. Credit Funding, Ltd.,” however, did not exist as a corporation until December of 1986. The only evidence in the record as to the possible name of the unincorporated.business entity states that an incorporator of U.S. Credit was an entity named “U.S. Credit Repair Center, Ltd.” The Secretary of State document appears to be dated in November of 1986, after the alleged sale. The trial court found, in effect, that Jack Gould lied in just about every other respect than the ownership issue. Under these circumstances, we believe that the trial court’s finding on the ownership issue was, in-fact, against the manifest weight of the evidence.

In resolving the remaining issue, we begin by articulating the substance and purpose of section 154 of the Insurance Code. That section provides, in pertinent part:

“No misrepresentation or false warranty made by the insured or in his behalf in the negotiation for a policy of insurance, or breach of a condition of such policy shall defeat or avoid the policy or prevent its attaching unless such misrepresentation, false warranty or condition shall have been stated in the policy or endorsement or rider attached thereto, or in the written application therefore, of which a copy is attached to or endorsed to the policy, and made a part thereof.” (Ill. Rev. Stat. 1987, ch. 73, par. 154.)

The court in the recent case of Gibralter Casualty Co. v. A. Epstein & Sons International, Inc. (1990), 206 Ill. App. 3d 272, 562 N.E.2d 1039, 1042, discussed the statute as follows:

“The primary purpose of section 154 is to allow for objective evidence of negotiations at the time of application for protection of the insured from possible frauds by insurance agents in falsifying answers given by the insured in applying for insurance. [Citation.] In reviewing insurance policies in the context of an issue regarding an insurer’s compliance with section 154, courts require strict compliance with section 154’s requirements and, if the insurer has not attached the application to the policy, the policy must include a specific, unambiguous statement indicating the misrepresentation. [Citations.]” 206 Ill App. 3d at 277, 562 N.E.2d at 1042.

In this case, Pekin did not attach the application to the policy. Pekin argues that the misrepresentation of ownership of the Granada is apparent from the face of the policy. Pekin asserts that as Roberta Gould’s name appears nowhere on the face of the policy and the named insured is U.S. Credit, this indicates that U.S. Credit is the owner of the Granada. In fact, the policy states that the vehicles which are covered include those listed under the description of “owned vehicles” in the declaration,. and the Granada is listed on the declaration as an owned vehicle.

In Government Employees Insurance Co. v. Dennis (1965), 65 Ill. App. 2d 365, 212 N.E.2d 759, one of the cases upon which Pekin specifically relies, the declaration to the policy stated that the insured was the owner of the cars. The court held that section 154 was not a bar to the insurer’s defense. Here, as in Dennis, the declaration’s effect is to represent the insured as the owner of the Granada. We therefore hold that section 154 does not preclude Pekin from asserting the defense of fraudulent misrepresentation as the asserted misrepresentation appears on the policy itself.

Accordingly, the judgment of the circuit court is reversed.

Reversed.

McNAMARA and LaPORTA, JJ., concur.

      U.S. Credit and Gould have not participated in this appeal.


source: Caselaw Access Project

author: JUSTICE LINN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. OTILIO CASIANO, Defendant-Appellant.
    First District (4th Division)
    No. 1—88—1309
    Opinion filed February 7, 1991.
    Modified on denial of rehearing May 9, 1991.

      Michael J. Pelletier and Karen Daniel, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb, Joseph Brent, and Mary Kenney, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LINN

delivered the opinion of the court:

Defendant, Otilio Casiano, was convicted of one count of kidnapping (Ill. Rev. Stat. 1985, ch. 38, par. 10—1(a)(2)), and three counts of aggravated criminal sexual assault, based on the kidnapping (Ill. Rev. Stat. 1985, ch. 38, par. 12—14(a)(4)), following a bench trial in the circuit court of Cook County. Defendant was sentenced to the penitentiary for three concurrent terms of 16 years.

Defendant appeals, contending the State failed to prove him guilty beyond a reasonable doubt of both offenses. Focusing on the kidnapping conviction, defendant also argues that the evidence failed to establish that he “carried” the victim and, alternatively, that any asportation that did occur was merely incidental to the principal offense of criminal sexual assault. Defendant lastly assigns error to his sentence.

We affirm defendant’s convictions and sentence.

Background

The record contains the following pertinent facts. Defendant was charged in a 15-count indictment with various offenses relating to criminal sexual assault and kidnapping. He was tried on all counts.

At trial, the victim testified as follows. On January 12, 1987, at between 1 and 2 a.m., the victim was waiting for a bus on Division Street in Chicago after visiting a friend. After waiting for a bus for at least one-half hour, the victim began to walk west on Division Street. After she walked 8 to 10 blocks, defendant approached her from behind, stuck a sharp object in her back, grabbed her arm, and forced her to walk with him to his apartment, a distance of approximately V-k blocks.

Once inside the apartment, defendant began to push the victim, ordered her to remove her clothes, and threatened to kill her if she did not do so. Defendant displayed a butterknife and repeated his demand. The victim began to cry and asked defendant if she could telephone her mother to obtain a ride home. Defendant allowed the victim to use his telephone. However, instead of calling her mother, the victim telephoned the 911 emergency line. When the 911 operator answered the call, the victim said, “Mama, will you please come and get me?” Defendant then grabbed the telephone from the victim and hung up.

A short time later, defendant again demanded that the victim remove her clothes. Defendant snatched at the victim’s sweatshirt and tore it. The victim removed her sweatshirt. Defendant granted the victim’s second request to telephone her mother. For the second time, the victim dialed the 911 emergency line. When the 911 operator asked her what was wrong, the victim stated, “I can’t tell you, I can’t tell you.” Defendant again hung up the telephone.

The victim pleaded with defendant not to hurt her. In response, defendant threatened to beat and kill the victim and throw her out of the window or back door. Defendant then undressed the victim at knifepoint and raped and sodomized her.

During this prolonged attack, the police arrived. Police officers rang the doorbell and flashed a spotlight on the window, but defendant prevented the victim from approaching the window. The police departed from the scene when they received no response.

A short time later, the victim again obtained defendant’s permission to telephone her mother. The victim redialed the 911 emergency number and pretended to speak to her mother. Defendant hung up the telephone and again sodomized her. The police again returned to defendant’s apartment building, interrupting the attack. They rang the doorbell, pounded on and kicked the door, shone a spotlight on the window, and sounded their horn and siren. Defendant again restrained the victim. After receiving no response, the police left the scene.

After the police departed, defendant ordered the victim to dress and leave his apartment. The victim complied, hailed a police squad car in the vicinity of the building, and informed the officers that she had been sexually assaulted. Accompanied by the police, the victim returned to defendant’s apartment and identified him as the offender.

On cross-examination, the victim additionally testified as follows. Earlier that evening she drank three cans of beer. At defendant’s apartment, the victim used cocaine; however, she did so at defendant’s command and not voluntarily. She first saw the butterknife only when defendant removed her clothes. Also, the victim did not tell the police officers to whom she first spoke that defendant threatened her with a knife and threatened to throw her out of the window. The victim could not remember whether she subsequently gave this information to police detectives.

Chicago police officer Patrick Gillespie testified that he twice responded to reports of disturbances at defendant’s apartment building. However, he did not receive any response each time he announced his presence. Chicago police officers Elijah Ortiz and Linda Gonzales testified that the victim hailed their squad car approximately one block from defendant’s apartment. Officer Ortiz observed that the victim wore a tom sweatshirt. He also identified in court the knife that he recovered from the apartment. Officer Gonzales testified that the victim identified defendant as her assailant.

The parties then stipulated to the testimony of Rajeev Sareen, M.D., and Christine Anderson. Dr. Sareen, an emergency room physician, would testify as follows. He performed a physical examination of the victim subsequent to the attack. His examination disclosed superficial scratch marks on the right side of the neck and a swollen lower lip. Additionally, he prepared a Vitullo kit, a medical test used in sexual assault investigations. Christine Anderson, a police department criminologist, would testify that a vaginal swab taken from the victim revealed the presence of semen and type A activity. Defendant’s blood and saliva samples indicated that he is a type A secretor. The victim’s blood and saliva samples indicated that she is a type 0 nonsecretor. The State rested.

Defendant’s case consisted of a stipulation. Defendant and the State stipulated that if called to testify, a police detective would testify that the victim did not tell him that defendant threatened her with a knife in the apartment or threatened to throw her out of his window.

The trial court found that defendant used force to carry the victim from one place to another, i.e., from the street to his apartment, with the intent to confine her secretly against her will. Thus, the court convicted defendant of one count of kidnapping. (Ill. Rev. Stat. 1985, ch. 38, par. 10—1(a)(2).) The court also found that defendant committed criminal sexual assault based on the forced sexual intercourse, and oral and anal sodomy. Further, the criminal sexual assault was aggravated by the kidnapping. Accordingly, the court convicted defendant of three counts of aggravated criminal sexual assault. Ill. Rev. Stat. 1985, ch. 38, par. 12—14(a)(4).

At the sentencing hearing, the trial court denied defendant’s post-trial motion. At the close of the hearing, the court sentenced defendant to three concurrent prison terms of 16 years for the three convictions of aggravated criminal sexual assault. The court stated:

“And I do, in fact, sentence you to [prison] for a term of 16 years on each of the charges, each of the three charges. Your terms will run concurrent; meaning, you’ll be serving all the three sentences at the same time.”

Defendant appeals.

Opinion

I

We first address defendant’s claims relating to his kidnapping conviction. He was indicted for violating the Criminal Code of 1961, section 10 — l(aX2), which provides as follows:

“§10 — 1. Kidnaping, (a) Kidnaping occurs when a person knowingly:
* * *
(2) By force or threat of imminent force carries another from one place to another with intent secretly to confine him against his will.
* * *
(c) Sentence.
Kidnaping is a Class 2 felony.” (Ill. Rev. Stat. 1985, ch. 38, par. 10—1.)

Additionally, it is elementary that the State must prove beyond a reasonable doubt every element of the crime charged. People v. Wolter (1979) , 78 Ill. App. 3d 32, 38, 396 N.E.2d 1102, 1106.

A

Defendant argues that the evidence failed to prove that he actually “carried” the victim from the street to his apartment. Thus, he argues, the kidnapping conviction should be reversed, the conviction for aggravated criminal sexual assault should be reduced to criminal sexual assault, and the cause remanded to the trial court for resentencing.

At common law, the offense of kidnapping had a narrow scope. It was the forcible abduction of a person and sending that person into another country. Kidnapping was merely an aggravated form of false imprisonment. Thus, kidnapping was a relatively unknown and inconsequential offense. (Model Penal Code §212.1, Comment, at 210 (1980); 2 C. Torcia, Wharton’s Criminal Law §210 (14th ed. 1979); 2 W. Burdick, Law of Crime §383 (1946).) Today, however, kidnapping is punished by statute and all States have progressively extended the scope of the offense. It is a crime of far broader definition and carries major felony sanctions. Model Penal Code §212.1, Comment, at 210 (1980); 2 W. Burdick, Law of Crime §387 (1946).

Simple kidnapping is sometimes defined, as in Illinois, as a seizure with asportation or detention. (Note, A Rationale of the Law of Kidnapping, 53 Colum. L. Rev. 540, 541 (1953).) “Asportation” has long been defined as either a “carrying,” “carrying away,” or “removal” of goods “from one place to another.” (Black’s Law Dictionary 105 (5th ed. 1979); 1 Bouvier’s Law Dictionary 253 (3d rev. 1914).) Of course, the concept of asportation applies also to persons. (See Annot., 43 A.L.R.3d 699 (1972).) Kidnapping statutes that contain asportation provisions typically use terms such as “carries,” “carries away” “takes away,” or “removes.” (53 Colum. L. Rev. at 545.) Criminal Code section 10—1(a)(2) provides that kidnapping occurs when a defendant “carries another from one place to another.” Ill. Rev. Stat. 1985, ch. 38, par. 10—1(a)(2).

Defendant argues that “ ‘carrying,’ not ‘asportation,’ is an essential element of the offense of kidnapping.” He further argues that “there was no evidence that [the victim] was ‘carried,’ either by motor vehicle, by [defendant] or by any other means.”

This argument completely lacks merit. Defendant attempts to distinguish the word “carry” from the legal concept of asportation. However, as shown above, an asportation is a “carrying.” Also, the word “carry” itself not only means to move while supporting a load, but also to “escort, lead, guide,” “convey,” or “take.” (Webster’s Third New International Dictionary 343 (1986).) We hold that the word “carries” in Criminal Code section 10 — 1(a)(2) simply refers to the general legal concept of asportation.

We further conclude that an asportation occurred in the case at bar. Defendant forced the victim, at knifepoint, to walk with him approximately IV2 blocks to his apartment. Thus, the victim was carried “from one place to another.” We hold that the State proved beyond a reasonable doubt that an asportation occurred as provided by Criminal Code section 10 — 1(a)(2).

B

Defendant alternatively argues that even if an asportation occurred, such movement was merely incidental to the “principal” offense of criminal sexual assault. It is true that not every asportation rises to the level of a kidnapping. (People v. Thomas (1987), 163 Ill. App. 3d 670, 676, 516 N.E.2d 901, 905.) Illinois courts consider four factors in determining when an asportation or a detention rises to the level of kidnapping as a separate offense. They are: (1) the duration of the asportation or detention, (2) whether the asportation or detention occurred during the commission of a separate offense, (3) whether the asportation or detention that occurred is inherent in the separate offense, and (4) whether the asportation or detention created a significant danger to the victim independent of that posed by the separate offense. People v. Smith (1980), 91 Ill. App. 3d 523, 529, 414 N.E.2d 1117, 1122.

Applying these factors to the case at bar, it is clear that defendant violated Criminal Code section 10 — 1(a)(2) as a separate offense. First, the asportation lasted approximately IV2 blocks. Whether an asportation is sufficient to constitute a kidnapping depends on the particular facts and circumstances of each case. Thus, the “time involved in the movement or the distance it covers are not the determining factors” in whether the separate offense of kidnapping occurred. (State v. Jackson (Mo. App. 1985), 703 S.W.2d 30, 33.) In the present case, although the asportation involved only a short distance, the victim was moved to a location that made the assault easier to commit and which reduced the danger of detection. Accord State v. Jackson (Mo. App. 1985), 703 S.W.2d 30 (victim forced at knifepoint to walk approximately one block from parking lot to vacant house); Beck v. United States (D.C. App. 1979), 402 A.2d 418 (victim forced at knifepoint to walk approximately 15 feet from street to defendant’s house).

Second, the asportation occurred prior to, rather than during, the sexual assault. Third, the act of forcing the victim to walk approximately V-lz blocks certainly is not inherent in the offense of criminal sexual assault. (See Ill. Rev. Stat. 1985, ch. 38, par. 12—13.) Fourth, the asportation clearly created a significant danger to the victim independent of that posed by the sexual assault. Defendant grabbed the victim’s arm from behind, stuck a sharp object in her back, and forced her to walk approximately IV2 blocks in this manner. A significant danger arose from this movement itself, and also from the potential of more serious criminal activity due to the privacy of defendant’s apartment. We hold that the kidnapping under Criminal Code section 10 — 1(a)(2) was a separate offense and not merely incidental to the criminal sexual assault. See People v. Gully (1986), 151 Ill. App. 3d 795, 800, 502 N.E.2d 1091, 1095.

II

Defendant also claims that the evidence failed to prove beyond a reasonable doubt his guilt. On appeal, a reviewing court, considering all of the evidence in the light most favorable to the prosecution, must determine whether any rational fact finder could have found beyond a reasonable doubt the essential elements of the crime. A criminal conviction will not be set aside unless the evidence is so improbable or unsatisfactory as to create a reasonable doubt of the defendant’s guilt. People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 276-77.

A

Addressing his kidnapping conviction, defendant essentially. attacks the credibility of the victim’s testimony and attempts to draw therefrom unfavorable inferences. However, it is well settled that “[i]n a bench trial it is for the trial judge to determine the credibility of witnesses, to weigh evidence and draw reasonable inferences therefrom, and to resolve any conflicts in the evidence.” (People v. Slim (1989), 127 Ill. 2d 302, 307, 537 N.E.2d 317, 319; People v. Berland (1978), 74 Ill. 2d 286, 305-06, 385 N.E.2d 649, 658.) This is exactly what the trial judge did in the instant case. After reviewing the evidence in the light most favorable to the prosecution, we conclude that the evidence established beyond a reasonable doubt a violation of Criminal Code section 10 — 1(a)(2). (Ill. Rev. Stat. 1985, ch. 38, par. 10—1(a)(2).) Further, we cannot say that the evidence is so improbable or unsatisfactory as to create a reasonable doubt of defendant’s guilt.

B

Defendant likewise claims that the victim’s testimony on the sexual assault was “contrary to human experience.” Defendant essentially notes inconsistencies in the victim’s testimony, brought out during both direct and cross-examination.

To sustain a conviction of criminal sexual assault, there must be evidence that a defendant committed an act of sexual penetration, i.e., “any contact, however slight, between the sex organ of one person and the sex organ, mouth or anus of another person,” by the use or threat of force or violence. (Ill. Rev. Stat. 1985, ch. 38, pars. 12—12(d), (f), 12—13(a)(1).) Further, this court agrees with the Appellate Court for the Fourth District that there exists only one standard of review in determining the sufficiency of the State’s evidence in a criminal case. Thus, we no longer require that, in a sex offense case, the State must demonstrate that either the victim’s testimony is clear and convincing, or substantially corroborated, to prove guilt beyond a reasonable doubt. People v. Byrd (1990), 206 Ill. App. 3d 996, 1008, 565 N.E.2d 176, 182, relying on People v. James (1990), 200 Ill. App. 3d 380, 384, 558 N.E.2d 732, 741-42; People v. Westfield (1990), 207 Ill. App. 3d 772, 777, 566 N.E.2d 392, 395-96, relying on People v. Roy (1990), 201 Ill. App. 3d 166, 185, 58 N.E.2d 1208, 1221.

After closely reviewing the entire record, we conclude that the evidence was sufficient for a rational trier of fact to find defendant guilty beyond a reasonable doubt. The victim testified that defendant was armed with a knife; Officer Ortiz identified the knife, which he found in defendant’s apartment. The victim testified that defendant tore her sweatshirt in an attempt to remove it; Officer Ortiz observed that the victim wore a torn sweatshirt when they met. Also, the victim testified that she thrice telephoned the 911 emergency line to summon aid; that the police came to defendant’s apartment building twice; and that during each visit defendant hid her from the police. Officer Gillespie testified that he twice responded to reports of disturbances at defendant’s apartment building, but received no response each time he announced his presence. We note that the victim’s testimony was substantially corroborated and, thus, satisfies the former dual standard of review in sex offense cases. (See People v. Bolton (1990), 207 Ill. App. 3d 681, 685, 566 N.E.2d 348, 350.) We cannot say that this evidence is so improbable or unsatisfactory as to create a reasonable doubt of defendant’s guilt.

Ill

Defendant lastly assigns error to the sentencing order entered by the trial court. The State concedes that the order contains two errors. First, the order erroneously indicates that defendant was convicted of criminal sexual assault. The report of proceedings shows that defendant was convicted of one count of kidnapping and three counts of aggravated criminal sexual assault, based on the sexual intercourse and oral and anal sodomy, and aggravated by the kidnapping. Second, the order erroneously indicates that defendant was sentenced to a separate 16-year concurrent prison term for the kidnapping conviction. The report of proceedings shows that defendant was sentenced only to three concurrent, 16-year terms for the three aggravated criminal sexual assault convictions.

In cases where the report of proceedings conflicts with the common-law record, the report of proceedings will prevail. (People v. Thompson (1977), 51 Ill. App. 3d 447, 450, 366 N.E.2d 1009, 1011, relied on in People v. Ammons (1983), 120 Ill. App. 3d 855, 863, 458 N.E.2d 1031, 1037.) Accordingly, we correct the sentencing order here, so that it reflects that defendant was convicted of one count of kidnapping (Ill. Rev. Stat. 1985, ch. 38, par. 10—1(a)(2)) and three counts of aggravated criminal sexual assault (Ill. Rev. Stat. 1985, ch. 38, par. 12—14(a)(4)). The sentencing order will also reflect that defendant was sentenced to three concurrent prison terms of 16 years for the three aggravated criminal sexual assault convictions. 107 Ill. 2d R. 615(b); see Thompson, 51 Ill. App. 3d at 450-51, 366 N.E.2d at 1011-12.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed, and the common-law record is corrected as stated in this opinion.

Affirmed and record corrected.

JIGANTI, P.J., and McMORROW, J., concur.


author: JUSTICE McNULTY

text:
      In re R.D., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. R.D., a Minor, Respondent-Appellant).
    First District (5th Division)
    Nos. 1—87—2031, 1—87—3079 cons.
    Opinion filed April 5, 1991.

      Randolph N. Stone, Public Defender, of Chicago (Thomas N. Swital and Stephanie L. Ellbogen, Assistant Public Defenders, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Bonnie Meyer Sloan, Assistant State’s Attorney, of counsel), for the People.
   JUSTICE McNULTY

delivered the opinion of the court:

Following a trial in juvenile court, appellant was adjudged delinquent for aggravated battery and unlawful use of a weapon. He was sentenced to one year’s probation and commitment to Unified Delinquency Prevention Services (UDIS). He appeals the finding of delinquency, contending that the State failed to prove him guilty beyond a reasonable doubt. He also appeals the denial of his request for habeas corpus relief prior to the adjudicatory hearing, alleging that such relief would have been proper in that the adjudicatory hearing was delayed beyond the 10 days allowed by statute, and that such delay was attributable to the State. (Ill. Rev. Stat. 1985, ch. 37, par. 704—2 (2), now Ill. Rev. Stat. 1987, ch. 37, par. 805—14 (a)(2).) Even though this issue is now moot, appellant requests that it be considered by this court because it is of substantial public interest and capable of evading review. We affirm both the adjudication of delinquency and the denial of habeas corpus relief. We address the habeas corpus issue because we find that although moot, it is of substantial public interest and capable of evading review.

At trial it was established that on the evening of April 23, 1987, Sherman Kyser (the alleged victim in this case) walked out of a drugstore and across the street to a van in which he recognized several girls. His mother, Anne Kyser, and another party, Rochelle Odum, observed his actions from a car parked across the street from the van. Anne Kyser ran over to the van when three boys approached on bikes. When one of the boys pulled out a gun and pointed it at Sherman, she stepped in front of Sherman. When Anne stepped away, the boy fired and hit Sherman, who was taken to the hospital by ambulance.

At trial, the State offered the testimony of Sherman Kyser, Ann Kyser, and Rochelle Odum. Each identified appeHant as the gunman. Each gave a uniform description of how appellant backed up his bike, pulled a gun from his pants, aimed at Sherman, aimed at the sky when Ann stepped in front of her son, and finaUy fired at Sherman when Ann stepped aside. Appellant claims that these testimonies are inconsistent as to whether Odum was Sherman’s aunt, whether there were girls in the van throwing gang signs up, whether the offender was initially at the van or rode up later on his bike, and whether Anne Kyser chased the offender after the shooting. While these are in fact inconsistencies in testimony, they are not material and do not affect the reasonableness of evidence adduced at trial. (See People v. Hister (1975), 60 Ill. 2d 567, 328 N.E.2d 531.) Appellant also maintains that the physical description of the offender offered by the State’s witnesses is inconsistent with his actual physical characteristics and that the State’s witnesses were biased and had reason to lie. Although both the Kysers and Odum described the offender as being three inches taller and 30 pounds heavier than he actuaUy was, such inconsistencies do not invalidate the physical identification, especially in light of the fact that appellant was in close proximity to the witnesses, his face was not concealed, the circumstances were traumatic, and the witnesses’ accounts are corroborative of one another. Furthermore, the trial judge had the opportunity to observe the witnesses and to evaluate their credibility. The reviewing court will not substitute its judgment for that of the trial judge on questions involving the credibility of witnesses unless the evidence is so improbable as to raise a reasonable doubt of defendant’s guilt. (People v. Carlson (1980), 79 Ill. 2d 564, 404 N.E.2d 233.) Because we find that the State presented sufficient credible evidence to prove the appeHant guilty beyond a reasonable doubt, we affirm the decision of the trial court as to appellant’s adjudication of delinquency for aggravated battery and unlawful use of a weapon.

We agree with appellant that although the denial of his request for habeas corpus relief prior to the adjudicatory hearing is now moot, it should nevertheless be reviewed by this court as it involves issues of substantial public interest, capable of repetition and evasive of review. (People v. Clayborn (1980), 90 Ill. App. 3d 1047, 1052, 414 N.E.2d 157, 161.) Furthermore, an authoritative determination of this question is desirable for the future guidance of public officers.

The Juvenile Court Act contains provisions that set forth the terms of a minor’s detention. Section 4—2(2) (now section 5—14(a)(2)) provides in relevant part:

“In the case of a minor ordered held in detention or shelter care, the hearing on the petition must be held within 10 judicial days from the date of the order of the court directing detention or shelter care ***. Delay occasioned by the respondent shall temporarily suspend, for the time of the delay the period within which a respondent must be brought to an adjudicatory hearing pursuant to this Section.” Ill. Rev. Stat. 1987, ch. 37, par. 805—14(a)(2).

On May 4, 1987, the juvenile court found probable cause and urgent and immediate necessity as required by section 2—10(2) of the Act (Ill. Rev. Stat. 1987, ch. 37, par. 802—10(2)) to hold petitioner in custody pending an adjudicatory hearing, set for May 18, 1987, the tenth day of the juvenile’s detention. On May 9, 1987, the State tendered discovery to the defense, and on May 12, filed a motion to postpone adjudicatory hearing. However, on May 18, 1987, the State answered ready for trial and defense counsel claimed that she had been misled by the motion to postpone and, further, that the State’s discovery was not complete as it did not contain the criminal background of the complaining witnesses. The trial judge continued the case “Order of Court” to May 22, 1987, and refused to release petitioner from custody. On the day of the trial, the State tendered discovery to defense counsel shortly before noon. Defense counsel claimed that since she received the State’s discovery so close to trial, she would need another continuance to reconcile such discovery with her own. Defense counsel further requested that the continuance be charged to the State, and that the minor be released from custody, as such custody exceeded 10 days and all delays were attributable to the State. The court continued the case until May 28, 1987, but denied the request for the minor’s release, attributing all delays to the defense and thus tolling the running of the statutory limitation period.

On May 26, 1987, defense counsel filed a petition for habeas corpus, which was denied at a hearing in criminal court. At the hearing, counsel for the minor argued that said minor should be released from custody pursuant to the section 4 — 2(2) (now section 5 — 14(a)(2)) of the Juvenile Court Act, as his hearing was not held within 10 judicial days from the court's order of detention, and there was no delay attributable to the minor which would temporarily suspend the 10-day period. The judge ruled that the decision to charge the delay to the defense had already been made by the judge in juvenile court, and based on that decision, the petition for habeas corpus would have to be denied. The judge further stated that he did not sit as an appellate court and would not review the decision of another court.

We affirm the denial of habeas corpus relief, as case law supports the judge’s finding that habeas corpus is not an appropriate means of reviewing an alleged erroneous judgment of another court. (See People ex rel. Jackson v. Moore (1975), 32 Ill. App. 3d 269, 336 N.E.2d 197.) We further maintain that the habeas petition would have been more appropriately brought before the same judge who was hearing the juvenile case (see People v. Clayborn (1980), 90 Ill. App. 3d 1047, 414 N.E.2d 157), so as not to give the appearance of forum shopping.

Furthermore, if we were to review the May 18 and May 22 orders which continued the case, we would find that neither provides grounds for the minor’s release. Even if the May 18 continuance granted “Order of Court” is attributable to the State, it is justified by section 5 — 14(aX2), which allows the court to postpone an adjudicatory hearing for up to 20 days at the State’s written request. We also find that the May 22 continuance was properly charged to the defense. Although the minor’s counsel relies on People v. Nunnery (1973), 54 Ill. 2d 372, 297 N.E.2d 129, to support her argument that discovery should have been charged to the State, Nunnery is factually distinguishable from the instant case. Even though Nunnery involved a last-minute request for discovery, made on the 115th day of defendant’s incarceration, defense counsel (the public defender) had only been appointed on that day, so no earlier request would have been feasible. In the instant action, counsel had not only requested, but had also received, discovery from the State on May 9, nine days before trial was scheduled, and did not complain of any deficiencies in discovery till the day of trial. The fact that the State had filed a motion to postpone adjudicatory hearing does not relieve defense counsel of the obligation to review the discovery tendered. Additionally, the second continuance in the juvenile hearing was granted after discovery was tendered to the defense counsel, because she did not have time to reconcile such discovery with her own records. Clearly, this delay is attributable to the defense. Furthermore, the granting of a continuance is within the discretion of the trial judge and will not be disturbed on appeal absent an abuse of discretion. (People v. Nurse (1985), 131 Ill. App. 3d 590, 475 N.E.2d 1000.) Thus, we support the trial court’s determination that the continuances granted were properly charged and did not provide grounds for the minor’s release. We therefore affirm the denial of habeas corpus relief.

Judgment affirmed.

LORENZ, P.J., and MURRAY, J., concur.


text:
    JAMES McCOLGAN et al., Plaintiffs-Appellants, v. ENVIRONMENTAL CONTROL SYSTEMS, INC., et al., Defendants-Appellees.
    First District (5th Division)
    No. 1—89—1400
    Opinion filed April 5, 1991.

      Leonard M. Ring & Associates, EC., of Chicago (Leonard M. Ring and William J. Jo van, of counsel), for appellants.
    McKenna, Storer, Rowe, White & Farrug, of Chicago (James P. DeNard, Richard J. Rettberg, and Christine L. Olson, of counsel), for appellee Environmental Control Systems, Inc.
    Williams & Montgomery, Ltd., of Chicago (Barry L. Kroll, Lloyd E. Williams, Jr., and Lawrence K. Rynning, of counsel), for appellee Shamrock Mine Products, Inc.
    Martha A. Churchill, of Chicago, for amicus curiae Mid-America Legal Foundation.
   JUSTICE McNULTY

delivered the opinion of the court:

Plaintiff James McColgan appeals from the circuit court’s entry of summary judgment in favor of ••Environmental Control Systems, Inc. (ECS), a manufacturer of curtains used in underground mines, and Shamrock Mines Products, Inc. (Shamrock), the distributor of the curtains. The sole issue on appeal is whether the trial court properly entered summary judgment in favor of the defendants.

Plaintiff was employed as an electrician for the Zeigler Coal Company. On November 16, 1977, as plaintiff was repairing a coal drill near a yellow opaque “pull through” curtain, used to control ventilation in underground mining, he was struck by a shuttle car which traveled through the curtain. Plaintiff sustained crippling injuries and brought an action in the circuit court of Cook County alleging strict liability against defendants. Plaintiff alleged that the ventilation curtain was unreasonably dangerous because it blocked the vision of those in the mine and the defendants had a legal duty to warn of the danger. In addition, plaintiff’s wife, Delores McColgan, alleged a loss of consortium action.

Both ECS and Shamrock filed motions for summary judgment alleging that they had no duty to warn plaintiff of the inherent opaque condition of the curtain, which was open and obvious. In support of their motions, defendants pointed out that, according to plaintiff’s own deposition testimony, he was aware of the fact that neither he nor others were able to see through the yellow opaque curtain. In addition, ECS cited to the deposition of John E. Brannon, president of Shamrock, who stated that he met with Zeigler’s vice-president of operations in 1971 or 1972, and showed him samples of various curtain material, including a translucent material. According to Brannon, he explained to the vice-president the safety features of the translucent material, such as the fact that light could be detected through the translucent curtain.

Furthermore, Ernest M. Spokes testified as an expert for both defendants. Spokes stated that transparent materials could not have been used for ventilation curtains in the coal mine because no such material had been approved for such use at the time. Regarding the obviousness of the danger to the plaintiff, Spokes stated that plaintiff had no reason to believe that the shuttle car would come through the entry, but as a safe workman, he should have taken some care to make his presence known.

In response to defendants’ motions for summary judgment, plaintiff pointed out that he had frequently worked near opaque curtains and that he had never before known a car to' tram through a curtain where men were working. Plaintiff also noted that William S. Overton, the president of ECS, admitted that no one employed as a consultant by ECS had knowledge of the mining business and that he was not concerned, nor did he ever express to Zeigler or Shamrock any concern, about the safety or the manner in which the yellow opaque curtains were used.

In addition, plaintiff relied on the deposition testimony of David MacCollum, a safety specialist. In MacCollum’s opinion, the opaque curtain was unreasonably dangerous and therefore the defendants should have prevented the occurrence of a dangerous situation by either: (1) displaying the word “danger” on both sides of the curtain; (2) warning the user that the curtain was not to be used in areas where vehicles could pass through; (3) placing a warning sign on both sides of the curtain stating that nothing should be parked behind a curtain and that vision is obstructed from the other side; (4) including windows of translucent material on the curtain; or (5) including a warning in the training manual explaining the hazards of using an opaque curtain in front of equipment.

Plaintiff also referred to 16 investigative reports of accidents involving opaque curtains, prepared by the Department of Mines of the United States Department of the Interior. None of the reported accidents, however, involved a curtain manufactured by ECS or sold by Shamrock.

After a hearing, the trial court granted defendants’ motions for summary judgment, finding that plaintiff’s injuries were derived from the inherent properties of the product which were open and obvious to him. Therefore, the trial court concluded that the opaque curtain was not unreasonably dangerous and a warning was not necessary. Plaintiff then filed a motion for reconsideration and a motion for leave to file a second amended complaint adding a negligence count against both ECS and Shamrock. The trial court denied the motion for reconsideration but granted plaintiff’s motion for leave to file a second amended complaint. The trial court later entered summary judgment in favor of both ECS and Shamrock on the second amended complaint.

Plaintiff contends that the trial court erred in granting summary judgment because a genuine issue of material fact exists as to whether the opaque ventilation curtain was unreasonably dangerous and whether a warning was necessary. We affirm.

To recover in strict liability in tort, a plaintiff must prove that his injuries resulted from an unreasonably dangerous or defective condition of the product and that the condition existed at the time the product left the manufacturers control. (West v. Deere & Co. (1990), 201 Ill. App. 3d 891, 559 N.E.2d 511, appeal allowed (1990), 135 Ill. 2d 568, 564 N.E.2d 511.) A product is found to be unreasonably dangerous when it fails to perform in the manner reasonably expected in light of its nature and function. (Hunt v. Blasius (1978), 74 Ill. 2d 203, 384 N.E.2d 368.) A product may be unreasonably dangerous in one of two ways: because of (1) a design or manufacture defect or (2) a failure to warn of a danger posed by the product of which the average consumer would not be aware. Lamkin v. Towner (1990), 138 Ill. 2d 510, 563 N.E.2d 449.

It is well settled that injuries are not compensable under strict liability law if they are caused by those inherent propensities of a product which are obvious to all who come in contact with the product. See, e.g., Lara v. Thoro-Matic Vacuum Systems, Inc. (1990), 194 Ill. App. 3d 781, 551 N.E.2d 390 (vacuum cleaner was not defective as a matter of law where plaintiff was injured due to her failure to guard against tripping over cord, which is an obvious condition and an inherent propensity of an electric vacuum cleaner); Kokoyachuk v. Aeroquip Corp. (1988), 172 Ill. App. 3d 432, 526 N.E.2d 607 (summary judgment upheld on the grounds that the refrigeration unit was not defective based on its inherent tendency to cause icy condensation on the floor on which the plaintiff slipped); Hubbard v. Chicago Housing Authority (1985), 138 Ill. App. 3d 1013, 487 N.E.2d 20 (hot steam pipes could not be found to be defective because the hot surface of the pipes was a common property of steam pipes).

Thus, while plaintiff contends that “the open and obvious rule is being eroded into oblivion by courts that have directly considered it,” this is simply not so. The case Wards v. K mart Corp. (1990), 136 Ill. 2d 132, 554 N.E.2d 223, relied upon by plaintiff in support of his argument that the open and obvious danger rule does not absolve the defendants from liability, is distinguishable from the instant case in light of the fact that Wards was based on premises liability and not products liability.

In the case at bar, there is nothing in the record to indicate that the opaque ventilation curtain was either defective or unreasonably dangerous. There is simply no suggestion of a defect in the opaque curtain which affected its intended or actual use — to control ventilation in the mine. Plaintiff contends that the opaque ventilation curtain is unreasonably dangerous because the curtain obstructed the visibility of workers in the mine. Plaintiff’s argument is unpersuasive, however, since the opaque characteristic of the ventilation curtain is an inherent condition of the curtain, known and obvious to all persons. coming in contact with the curtain. Plaintiff even admitted that he and others could not see through the opaque curtain.

We now turn to the question of whether the opaque curtain was unreasonably dangerous in. light of the fact that it was sold without a warning. The determination of whether a duty to warn exists is a question of law and not of fact. (Genaust v. Illinois Power Co. (1976), 62 Ill. 2d 456, 343 N.E.2d 465.) Generally, a duty to warn exists when there is unequal knowledge and the defendant possessed with such knowledge knows or should know that harm might occur if no warning is given. (Clark v. Penn Versatile Van (1990), 197 Ill. App. 3d 1, 554 N.E.2d 643.) The purpose of a warning is to apprise a party of a danger of which he has no knowledge and thereby enable him to take appropriate measures to protect himself. (Huff v. Elmhurst-Chicago Stone Co.(1981), 94 Ill. App. 3d 1091, 1099, 419 N.E.2d 561.) However, when a danger is obvious and generally appreciated, nothing of value is gained by a warning and none is required. West v. Deere & Co. (1990), 201 Ill. App. 3d 891, 559 N.E.2d 511, appeal allowed (1990), 135 Ill. 2d 568, 564 N.E.2d 511.

In our case, the fact that one could not see through the opaque curtain to the other side is undoubtedly an open and obvious condition of the curtain. Plaintiff was, according to his own testimony, aware of the inability to see through the curtain. Thus, a warning would have served no purpose.

This conclusion is supported by Davis v. R.H. Dwyer Industries, Inc., (E.D. Pa. 1982), 548 F. Supp. 667, a case similar to the present case. In Davis, the plaintiff sued the manufacturer of a curtain used in a car wash for injuries he suffered when he was struck by a car driven through the opaque curtain. Plaintiff claimed that the product was defective because it was opaque, and thus the driver was unable to see through it. The court held that the manufacturer had no obligation to provide a warning of the curtain’s propensity to become opaque. The court reasoned that the lack of warning concerning the curtain’s propensity to become opaque did not cause the accident and would have served no purpose. Such a warning would merely have informed the car wash employees that the material could become opaque, which was apparent to anyone who looked at the curtain. Davis, 548 F. Supp. at 671.

Likewise, in the case at bar, the defendants had no duty to warn of the opaque condition of the curtain, which was open and obvious. Therefore, the trial court properly entered summary judgment in favor of defendants on the strict liability counts.

Finally, although plaintiff’s brief mentions the negligence counts of the second amended complaint, plaintiff has failed to offer any authority in support of these counts. Plaintiff has therefore waived his argument as to the negligence counts, under Supreme Court Rule 341(e)(7) (113 Ill. 2d R. 341(e)(7)).

Accordingly, we affirm the trial court’s entry of summary judgment in favor of the defendants.

Judgment affirmed.

MURRAY and GORDON, JJ., concur.

      This opinion will only discuss plaintiff James McColgan’s causes of action since Delores McColgan’s loss of consortium action is derivative of her husband’s claim.


author: JUSTICE JOHNSON

text:
    MIAMI CORPORATION, Plaintiff-Appellee, v. THE DEPARTMENT OF REVENUE, Defendant-Appellant.
    First District (4th Division)
    No. 1—89—1158
    Opinion filed April 4, 1991.

      Roland W. Burris, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Deborah L. Ahlstrand, Assistant Attorney General, of Chicago, of counsel), for appellant.
    lee. Richard A. Hanson, of McDermott, Will & Emery, of Chicago, for appel-
   JUSTICE JOHNSON

delivered the opinion of the court:

The Hlinois Department of Revenue, defendant, appeals from the portion of a circuit court of Cook County decision finding that the application of a statutory apportionment formula to plaintiff taxpayer, Miami Corporation, grossly distorted the income attributable to plaintiff’s Hlinois business activities. The trial court found that plaintiff was entitled to utilize an alternative method of apportionment, separate accounting, to allocate the income derived from its Louisiana operations.

On appeal, defendant raises the following issues: (1) whether the trial court erred in setting aside defendant’s decision to apply the statutory three-factor formula to plaintiff; (2) whether plaintiff is entitled to deviate from the statutory formula and utilize an alternative means of allocating its income; and (3) whether the trial court erred in selecting the separate accounting method as the alternative means of allocating plaintiff’s income.

We affirm.

This appeal arises from the trial court’s setting aside a portion of defendant’s administrative decision which denied plaintiff income tax refunds for years 1978 through 1982, inclusive.

Plaintiff is a Delaware corporation -with its principal place of business and commercial domicile in Chicago. Plaintiff was founded by the Dearing family in 1917 for the purpose of overseeing the family’s personal investment portfolio. Income is derived through investments in real estate, stocks, and other securities. Plaintiff owns real estate in Louisiana, Florida, and Oregon.

In the mid-1920’s, plaintiff separated its oil and gas and real estate investments from its securities portfolio. Plaintiff established Department A for its securities and stock holdings. Department B was established for its real estate holdings in Louisiana, Oregon, and Florida.

Plaintiff’s real estate holdings in Louisiana include 250,000 acres of land. Oil and gas deposits were discovered on the land in Louisiana several years after plaintiff came into existence. Plaintiff does not engage in developing these reserves but, rather, contracts with independent oil and gas companies which explore, drill and produce oil and gas from the reserves. Plaintiff only retains a passive royalty interest in the reserves.

The primary source of revenue from land owned in Oregon and Miami is derived from the sale of timber rights. Plaintiff has two employees in Oregon and six to seven employees in Miami. The timber operations are supervised by plaintiff’s corporate offices in Chicago. Plaintiff has 35 employees in its Chicago office and one employee, Roger Vincent, in its Louisiana office. Vincent was hired in 1966 to locally manage plaintiff’s Louisiana land investments. Prior to Vincent’s employment, matters relating to the Louisiana investments were managed out of the Chicago office.

Plaintiff has filed timely income tax returns annually in Elinois, Louisiana, Florida, and Oregon. The Elinois income taxes paid for 1978 through 1982 were as follows:

1978 $ 5,344
1979 $ 8,188
1980 $ 8,068
1981 $597,090
1982 $101,002

Defendant issued a notice for additional tax liability on October 21,1982, for the following years and amounts:

1978 $ 49,216
1979 $133,465
1980 $370,732

On February 4, 1983, plaintiff filed objections to the proposed deficiencies. On February 22, 1984, defendant issued another notice to plaintiff proposing additional increases in plaintiff’s income tax liability for the following years and amounts:

1981 $289,032
1982 $933,542

Plaintiff also objected to these proposed amounts.

On January 29, 1985, defendant sent a notice of deficiency to plaintiff for the amounts previously set forth. Plaintiff paid the liability and filed a claim for refund on September 26, 1986. The foEowing figures summarize the amounts in question:

Notice of Requested Year Originally Paid Deficiency Refund
1978 $5,344 $49,216 $49,216
1979 $8,188 $133,465 $126,419
1980 $8,068 $370,732 $327,236
1981 $597,090 $289,032 $266,258
1982 $101,002 $686,544 $930,424

Defendants arrived at the dollar amounts owed to the State by determining what percentage of plaintiff’s business income was apportionable to Elinois and taxable within the State. The Elinois apportionment percentage used by defendant is commonly known as the three-factor formula. This formula is statutory and is set forth in the Illinois Income Tax Act (Ill. Rev. Stat. 1983, ch. 120, par. 3—304). The three factors used in the formula are property, payroll and sales. These factors each contain a numerator which represents the income derived from business conducted in Illinois and a denominator which represents the income derived from any other State. The average of the fractional amounts represents what portion of business will be attributable to Illinois and is subject to taxation.

The three-factor formula is illustrated as follows:

Illinois Property + Illinois Payroll + Illinois Sales
Property In Other Payroll In Other Sales In Other
States_States_States_

3

On October 20, 1986, plaintiff’s request for a refund was denied by notice from defendant. On December 3, 1986, plaintiff filed a letter of protest and a request for a hearing on this matter. At the hearing, it was determined that plaintiff’s income was business income derived from a unitary business; that the use of the statutory three-factor formula was the appropriate means of apportioning business income derived from plaintiff’s activities in Illinois; and that even if the other means of determining the percentage of business to be apportioned to Illinois were available to plaintiff, the separate accounting method would be an inappropriate alternative. The deficiency was upheld and plaintiff’s requested refund was denied. Plaintiff’s Illinois income tax was increased from approximately $719,000 to more than $2.4 million under the prescribed three-factor formula.

Subsequently, plaintiff filed a complaint seeking administrative review of defendant’s decision. The trial court reviewed each of the factors in the three-factor formula and determined that the factors, individually and in combination, did not fairly reflect plaintiff’s income in Illinois. The trial court set aside the portion of defendant’s administrative decision applying the three-factor formula to plaintiff but sustained the portion of the decision finding plaintiff a unitary corporation. The trial court also held, considering the nature and structure of plaintiff’s operation, that separate accounting was the most appropriate method to source plaintiff’s income. Separate accounting allows for the isolation of a portion of a business operated in one State from other portions of the business operated in other States. Defendant now appeals from the portion of the trial court’s decision with respect to its rejection of the three-factor formula and its application of the separate accounting method as an alternative means of allocating plaintiffs income.

A corporate taxpayer that derives its income from Illinois and one or more other States may be taxed in Illinois according to the income generating activities conducted within the State. (Ill. Rev. Stat. 1983, ch. 120, par. 3—304.) However, “the amount of income fairly attributable to activities within the taxing State must be discerned before income tax constitutionally may be imposed.” General Telephone Co. v. Johnson (1984), 103 Ill. 2d 363, 368.

The United States Supreme Court in Container Corp. of America v. Franchise Tax Board (1983), 463 U.S. 159, 77 L. Ed. 2d 545, 103 S. Ct. 2933, states:

“Under both the Due Process and the Commerce Clauses of the Constitution, a State may not, when imposing an income-based tax, ‘tax value earned outside its borders.’ [Citation.] In the case of a more-or-less integrated business enterprise operating in more than one State, however, arriving at precise territorial allocations of ‘value’ is often an elusive goal, both in theory and in practice. [Citations.] For this reason and others, we have long held that the Constitution imposes no single formula on the States ***.” Container Corp., 463 U.S. at 164, 77 L. Ed. 2d at 552, 103 S. Ct. at 2939.

Generally, in Illinois there are several methods available to State tax officials in determining the net income that may be taxed by the State -within constitutional bounds. (Caterpillar Tractor Co. v. Lenckos (1981), 84 Ill. 2d 102, 115.) One method is commonly known as separate accounting. This method is employed when the income-producing activities and sources within the State can be differentiated from the income-producing activities and sources outside of the State. Citizens Utilities Co. v. Department of Revenue (1986), 111 Ill. 2d 32, 39.

Another method of accounting is formula apportionment, which is used when the income-producing activities and sources cannot be isolated from the out-of-State activities and sources. “Thus, what is referred to as ‘formula apportionment’ is available for income allocation in cases where separate accounting does not suffice.” (General Telephone Co. v. Johnson (1984), 103 Ill. 2d 363, 369.) Formula apportionment is usually employed to allocate the net income of a unitary business.

Our supreme court in Caterpillar Tractor Co. v. Lenckos (1981), 84 Ill. 2d 102, defined a unitary business as:

“[A] group of functionally integrated corporate units which are so interrelated and interdependent that it becomes relatively impossible for one State to determine the net income generated by a particular corporation’s activities within the State and therefore allocable to that State for purposes of taxation.” Caterpillar, 84 Ill. 2d at 116.

The trial court, in the instant case, upheld defendant’s decision that plaintiff was a unitary corporation. The court concluded that plaintiff’s operations were highly integrated and that the benefits that ensued from such operations were from an umbrella of centralized interaction between the divisions.

Defendant argues that because the decision finding plaintiff to be a unitary business is undisputed, the appropriate method of accounting would be the three-factor formula as set forth in section 304(a) of the Hlinois Income Tax Act. (Ill. Rev. Stat. 1983, ch. 120, par. 3—304(a).) Defendant contends that in order to overturn its decision to apply the three-factor formula, plaintiff bears the burden of showing by clear and cogent evidence that the income attributed to Illinois is out of all proportion to the business transacted in Hlinois. (Moorman Manufacturing Co. v. Bair (1978), 437 U.S. 267, 274, 57 L. Ed. 2d 197, 205, 98 S. Ct. 2340, 2345.) We agree with defendant that plaintiff must bear this burden but, we find, as the trial court so found, that plaintiff has carried its burden. The three-factor formula, as applied to plaintiff, grossly distorts the income that should be apportioned to Hlinois.

While we acknowledge that the increase of plaintiff’s liability from approximately $719,000 to more than $2.4 million does not necessarily prove malapportionment (see Citizens Utilities Co. v. Department of Revenue (1986), 111 Ill. 2d 32), we find that the distortion created by the use of the formula amounts to an unfair representation of plaintiff’s activities with the State.

The property factor in the formula was designed to measure the average value of real and tangible property, whether owned or rented, used in the taxpayer’s business. Property which is owned is valued at its original cost. Rented property is valued at eight times the net annual rental rate. (Ill. Rev. Stat. 1983, ch. 120, par. 3—304(a)(l)(A).) However, the oil and gas reserves in Louisiana which generated in excess of 80% of plaintiff’s income are not reflected in the formula because these elements are intangibles.

Relying upon Atlantic Richfield Co. v. Alaska (Alaska 1985), 705 P.2d 418, appeal dismissed (1986), 474 U.S. 1043, 88 L. Ed. 2d 754, 106 S. Ct. 774, the trial court, in the instant case, noted that the value of elements is not recognized under traditional apportionment formulas. In Atlantic Richfield, the supreme court of Alaska found that because of the unique character of oil and gas reserves, its value may not be recognized under the traditional formula apportionment methods. Atlantic Richfield, 705 P.2d at 426.

Similarly, the trial court, in the instant case, found that “[t]he singular structure and operation of the taxpayer negatives the application of the property factor. It produces a distortive effect because of the individual characteristics of the taxpayer’s operations and its tangible property.” As plaintiff argues, the land in Louisiana valued at its original or historical cost would not represent the true value of the oil and gas reserves. The use of the three-factor formula would aUow for the lease of the Chicago office (capitalized at eight times its rental value for purposes of inclusion in the property factor), to be worth more than the 250,000 acres of Louisiana land containing the oil and gas reserves.

The trial court also found that the application of the payroU factor was inappropriate due to plaintiff’s unusual corporate structure. The trial court stated that “[tjhe payroU factor *** from the point of view of economic realities, does not give effect to the substantial cost of the out-of-state activities performed by the independent contractors as was heretofore delineated by this Court.” One of plaintiff’s officers testified that the compensation paid for support services to Louisiana totaUed only 4% of the Chicago payroll. We defer to the trial court’s decision with respect to the applicability of this factor.

The final factor that the trial court considered was the sales factor. The sales factor measures receipts or gross revenues. The court defined this factor so as to include “receipts from sales of property, *** services, rentals, royalties, and business operations, generally.” (Emphasis added.) In applying this factor to plaintiff, the trial court found that defendant had erred in interpreting this factor as being based upon income generated in each State.

The trial court correctly held that the sales factor is based upon receipts and not income. Defendant now concedes that “ ‘receipts’ or ‘sales’ or ‘gross income’ [should have been used] rather than ‘income’ which is reflective of other factors of the business.” Moreover, plaintiff argues defendant included plaintiff’s gross dividends as Illinois receipts which substantially overstates its income from Illinois. We find that the trial court did not err in finding that plaintiff had met its burden by producing clear and cogent evidence that the income attributed to Illinois is out of appropriate proportion to the business transacted in Illinois. See Hans Rees’ Sons, Inc. v. North Carolina (1931), 283 U.S. 123, 75 L. Ed. 879, 51 S. Ct. 385.

Next defendant claims that plaintiff failed to meet its burden of establishing that it was entitled to deviate from the statutory formula and utilize an alternative method of allocation under section 304(f) of the Illinois Income Tax Act. (Ill. Rev. Stat. 1983, ch. 120, par. 3— 04(f).) The section provides:
“If the allocation and apportionment provisions of subsections (a) through (e) do not fairly represent the extent of a person’s business activity in this State, the person may petition for, or the Director may require, in respect of all or any part of the person’s business activity, if reasonable:
(1) Separate accounting;
(2) The exclusion of any one or more factors;
(3) The inclusion of one or more additional factors which will fairly represent the person’s business activities in this State; or
(4) The employment of any other method to effectuate an equitable allocation and apportionment of the person’s business income.” Ill. Rev. Stat. 1983, ch. 120, par. 3—304(f).

When a particular method of accounting leads to a grossly distorted result, an alternative method of apportionment must be used. (86 Ill. Adm. Code §100.3700(a) (1985).) In the instant case, the trial court stated:

“The Court not only exams [sic] each factor, but also the combined effect of all the factors. In this case, the totality of all the factors results in gross distortions. The imperfections that exist do not balance each other out.”

We find that since the application of the three-factor formula leads to gross distortions of plaintiff’s income-producing activities or sources in Illinois, an alternative form of apportionment is appropriate.

Finally, defendant contends that even assuming, arguendo, that plaintiff was entitled to section 304(f) relief, the trial court erred in selecting the separate accounting method. The separate accounting method “attempts to segregate and identify the sources or transactions which account for the generation of business income.” (Caterpillar Tractor Co. v. Lenckos (1981), 84 Ill. 2d 102, 115.) Defendant reasons that because plaintiff is a unitary business, the separate method of accounting would be inappropriate in apportioning plaintiff’s income. We disagree.

Plaintiff’s most profitable operation is its oil and gas reserves located in Louisiana. These reserves generated in excess of 80% of plaintiff’s total income. We previously held that the application of the three-factor formula did not fairly represent plaintiff’s activities in Dlinois with respect to the Louisiana property.

In Atlantic Richfield v. Alaska, the supreme court of Alaska described the problems in apportioning the income of unitary oil and gas businesses under the three-factor method and held that the separate accounting method would be more appropriate for these types of unitary businesses. The court stated:

“A unique characteristic of unitary oil and gas businesses is that the major income-producing element is the value of the oil and gas reserves in the ground. While this element can be readily identified, it is not recognized under traditional formula apportionment methods. ***
* * *
*** [Sjeparate accounting, not formula apportionment, is the prevailing method throughout the United States for reporting income for oil production.” Atlantic Richfield Co., 705 P.2d at 426.

We agree with the Atlantic Richfield court and hold that the trial court, in the instant case, properly found that the separate accounting method was the appropriate method to apply to plaintiff.

Defendant also argues that even if the separate accounting method is found to be appropriate, the case must be remanded to determine the correct amounts as a result of the implementation of this accounting method. We do not find this argument persuasive, as the trial court set forth in its March 31, 1989, judgment order the exact dollar refund amounts due plaintiff. Moreover, defendant does not present this court with any other figures or basis for refuting the trial court’s calculations. We, therefore, defer to the trial court’s findings with respect to the refund amounts owed to plaintiff.

For the foregoing reasons, the decision of the circuit court is affirmed.

Affirmed.

JIGANTI, P.J., and LINN, J., concur.


author: JUSTICE GREIMAN

text:
    ALLSTATE INSURANCE COMPANY, Plaintiff-Appellant, v. DORCIE FISHER, Defendant-Appellee.
    First District (3rd Division)
    No. 1—90—0186
    Opinion filed April 3, 1991.

      Law Office of Clifford P. Mallon, of Chicago (Robert Guilfoyle and Patrick R. Stoker, of counsel), for appellant.
    Heller & Richmond, Ltd., and Schwartzberg, Barnett & Cohen, both of Chicago (Benjamin H. Cohen, of counsel), for appellee.
   JUSTICE GREIMAN

delivered the opinion of the court:

The plaintiff, Allstate Insurance Company (hereinafter Allstate), filed a petition to vacate an arbitration award rendered under the “uninsured motorist” provision of an insurance policy issued by it to the defendant, Dorcie Fisher (hereinafter Policyholder).

Allstate seeks to set aside the award due to the failure of the arbitrator to render the award within 30 days after the closing of the arbitration hearing as provided by the rules of the American Arbitration Association (hereinafter AAA), the appropriate regulatory authority established by the terms of Allstate’s policy.

The trial court granted the Policyholder’s motion to dismiss and dismissed Allstate’s petition with prejudice. We affirm the trial court.

The facts are not in dispute. On October 13, 1987, the Policyholder filed a demand for arbitration with the AAA for personal injuries sustained in a motor vehicle accident with an uninsured motorist. The Allstate policy provided that the rules of the AAA would be applicable to such arbitration proceedings.

The Policyholder appeared at hearings on September 21, 1988, and November 4, 1988, which were continued. The final proceedings in the arbitration of the Policyholder’s claim were on June 29, 1989. On August 1, 1989, Allstate wrote the AAA objecting to the entry of an award by reason of the provisions of Rule 28 of the AAA rules which provided for the rendering of the award no later than 30 days from the close of the hearing, unless otherwise agreed by the parties or specified by law.

Section 8(b) of “An Act relating to arbitration ***” (Ill. Rev. Stat. 1987, ch. 10, par. 101 et seq.), Illinois’ adaptation of the Uniform Arbitration Act, provides:

“An award shall be made within the time fixed therefore by the agreement ***. The parties may extend the time in writing either before or after the expiration thereof. A party waives the objection that an award was not made within the time required unless he notifies the arbitrators of his objection prior to the delivery of the award to him.”

Rule 28 of the rules of the AAA provide as follows:

“The arbitrator shall render the award promptly and, unless otherwise agreed by the parties or specified by law, no later than thirty days from the date of closing the hearing ***.”

The award was received by the AAA on August 25, 1989, 26 days after the day established by rules and statute for the filing of the award.

Policyholder claims that the issue here presented is one of first impression in Illinois, and Allstate notes that only one Illinois court has inferentially addressed the issue. Goble v. Central Security Mutual Insurance Co. (1970), 125 Ill. App. 2d 298, 260 N.E.2d 860.

Judicial review of an arbitration award is more limited than an appellate review of a trial court’s opinion. (Garver v. Ferguson (1979), 76 Ill. 2d 1, 8.) Both parties acknowledge that this court has the opportunity to follow decisions from other jurisdictions that require strict adherence to procedural rules or those that follow liberal contract guidelines to provide relief to the objecting party only on a showing of damages occasioned by the delay in filing.

Decisions from the latter part of the last century and the early 20th century provided a hostile environment for arbitration. Courts required an exacting adherence to the rules of procedure and agreements between the parties. (Buntain v. Curtis (1872), 27 Ill. 374.) Perhaps the classic decision in this regard is Elliott v. Hanson (1878), 39 Mich. 157, where an award was held invalid when rendered in the afternoon of August 3 instead of at 10 a.m. as required by the agreement.

Early courts in Illinois and elsewhere did not favor arbitration as a means of dispute resolution. Agreements to submit a future dispute to arbitration were against the public policy of this State and unenforceable. White Eagle Laundry Co. v. Slawek (1921), 296 Ill. 240.

To meet the needs of a litigious society, the Illinois General Assembly and other legislatures have adopted legislation authorizing and regulating submission of disputes to arbitration. See Ill. Rev. Stat. 1987, ch. 10, par. 101 et seq.

The State’s insurance code requires automobile policies containing uninsured motorist clauses to provide for arbitration (Ill. Rev. Stat. 1987, ch. 73, par. 755a et seq.). Although not relevant to these proceedings, a mandatory arbitration process has recently been established in several large urban counties in the State pursuant to Illinois Supreme Court Rule 86 (134 Ill. 2d R. 86).

These legislative enactments and the cases construing them provide a clear expression of the public policy of Illinois which looks with favor upon the resolution of disputes by arbitration.

Allstate relies heavily on the inferences gleaned from Goble v. Central Security Mutual Insurance Company, where the court determined that the failure of a party to object prior to the entry of an untimely award will be deemed a waiver of the right to contest the violation of the limitations set by the arbitration rules. From this decision, Allstate reasons that its timely objection on August 1, 1989, two days after the period had run, is sufficient to destroy the validity of the award made 26 days later.

In upholding the agreement, the Goble court stated: “These rules *** make no provision for the effect of the failure to object to the award not having been made in time.” (125 Ill. App. 2d at 303.) Here, the court recognizes that in the absence of specific provisions as to the effect of noncompliance with the AAA rules, courts will have to resort to other legal principles to determine the controversy.

Goble observes that the rules are silent on the effect of the failure to object. It should be here noted that the rules are similarly silent on the effect where a party has objected to the award having not been made in a timely fashion. Accordingly, we must resort to other legal principles in that situation as well.

Even those cases that have declined to give effect to the arbitrator’s tardy report acknowledge that the time limits are not jurisdictional and that the arbitrator may still render the award for a variety of reasons. Campbell v. Castle Shannon Borough (1984), 83 Pa. C. 264, 476 A.2d 1018; Ruff v. Metropolitan Property & Liability Insurance Co. (R.I. 1986), 508 A.2d 672; Rosaria v. Carrasquillo (1982), 88 A.D.2d 874, 451 N.Y.S.2d 776.

The most recent cases, however, have been reluctant to provide strict enforcement of the statute or rules of the AAA. In 1987, a West Virginia court, upholding the arbitrator’s six-day tardy award, remarked:

“A fair reading of the cases indicates that in instances when an arbitration award is delayed courts must apply a rule of reason. The threshhold question then becomes whether the party raising the delay issue has been prejudiced by the delay. In this regard the complaining party is more likely to show prejudice by long delay than the party against whom the complaint has been made because arbitration is a substitute for court action. Usually, however, the delay issue is used only to establish colorable grounds for challenging an otherwise just and reasonable award [in order] to postpone paying off the winner. We disapprove of that tactic. As is usual in these cases that use delay to buy more delay, we have in the case before us only a classic example of damnum absque injuria (more commonly expressed in the coal fields as ‘no hurt, no'foul’).

The Nichols court allows that the delay must not be too long, must not be the fault of the parties, and the work done by the arbitrator preceding the making of the award ought to be substantial. There are no allegations in the instant case that the delay was unreasonable, or that it was the fault of any of the parties. Moreover, the work done by the arbitrator preceding the award was, within the framework of this case, substantial in that it appeared to resolve all of the issues in the case.

Other jurisdictions have determined that a two-week delay is not fatal to the arbitrator’s award. (Brandon v. Hines (D.C. App. 1981), 439 A.2d 496.) In Tomczak v. Erie Insurance Exchange (W.D. Pa. 1967), 268 F. Supp. 185, a party’s refusal to agree to an extension of the time within which the arbitrator’s award might be rendered did not invalidate the award when issued sometime after the time limited for the rendering of such decision.

The parties enjoy freedom of contract and may impose upon themselves such limitations as they deem in their respective best interests. Since neither the statute nor the rules of the AAA provide that time is of the essence in the rendering of the arbitrator’s decision, the parties could have imposed such a limitation. Moreover, the General Assembly or the AAA could have effected appropriate amendments to reflect a change in philosophy.

While the Illinois statute contemplates that a party may object prior to the rendering of the decision, the statute does not direct us to the remedy available to the objecting party and therefore we apply ordinary, contract rules.

The general rules of construction do not require that a court infer from a contract that time was meant to be of the essence. (King v. Stephenson (7th Cir. 1971), 445 F.2d 565.) In the absence of such a provision, the mere tardiness in the filing of an award will not obviate the effects of arbitration unless the objecting party can show that the rights of third parties have intervened, the rights of the objecting party have been injured by the delay or the time within which the award has been rendered is unreasonable.

The issue of reasonableness must be left to a case-by-case consideration. In Nichols, six days were not unreasonable. In Hines, two weeks were not unreasonable, and in the instant case, 26 days are not unreasonable.

In reaching this more liberal view, we are also mindful that a contrary decision would serve to generate litigation against arbitrators and that there is a likelihood qualified practitioners would be less interested in participating in the arbitration process.

As previously noted, Illinois strongly favors resolution of disputes by arbitration, and awards which otherwise provide parties with a just result and fair process should not be set aside for minor technical violations of the rules.

For that reason, we affirm.

Affirmed.

CERDA, P.J., and WHITE, J., concur.

      *** ghort ¿g minimis delay by which no one is harmed should not be permitted to void the prolonged efforts of the arbitrators.” Anderson v. Nichols (W. Va. 1987), 359 S.E.2d 117, 121 n.2.