author: Mr. JUSTICE JONES

text:
    Cecil Baker, Appellee, v. Virginia Baker, Appellant.
    (No. 70-147;
    Fifth District
    — December 16, 1971.

      Richard E. White, of Murphysboro, for appellant.
    R. Corydon Finch, of Anna, for appellee.
   Mr. JUSTICE JONES

delivered the opinion of the court:

Defendant appeals from an order of the trial court denying her motion to set aside a decree granting plaintiff a divorce and divesting defendant of any interest in real estate owned by the plaintiff.

The facts pertinent to this opinion may be briefly stated. The parties were married on June 15, 1968. Plaintiff’s complaint for divorce was filed on May 15, 1970. On the same date defendant filed her written entry of appearance, waiving service of process and consenting that immediate default might be entered against her at any time thereafter. On June 11, 1970, a decree was entered granting the plaintiff a divorce from the defendant and divesting defendant of any interest in real estate owned by plaintiff. On June 12, 1970, the defendant remarried. On July 9, 1970, defendant filed a motion to set aside the decree of divorce on the grounds that she had been fraudulently deprived of a one-half interest in real estate which was the residence of the parties during their marriage. Plaintiff filed an answer to the motion and after hearing evidence the trial court entered an order denying defendant’s motion to set aside the decree. The defendant appeals.

Defendant argues in this court that the trial court abused its discretion in refusing to vacate the decree for divorce since the preponderance of the evidence at the hearing showed that the plaintiff had perpetrated a fraud in obtaining a decree of divorce which also barred defendant of any interest in the plaintiff’s real estate.

However, in the view we take of the case it is not necessary for us to consider the merits of defendant’s charges of fraud. It is undisputed that the defendant remarried the day after the decree of divorce was entered. She thereby recognized the validity of the divorce decree and availed herself of its benefits by marrying another man. She is accordingly estopped to attempt to vacate the decree. Boylan v. Boylan, 349 Ill. 471, 182 N.E. 614; Pierotti v. Pierotti, 343 Ill.App. 116, 98 N.E.2d 875; McDonald v. Neale, 35 Ill.App.2d 140, 182 N.E.2d 366.

Judgment affirmed.

MORAN, P. J., and EBERSPACHER, J., concur.


source: Caselaw Access Project

author: Mr. PRESIDING JUSTICE THOMAS J. MORAN

license: Public Domain

text:
    North Shore Sanitary District, Petitioner, v. Pollution Control Board et al.

    (No. 71-157;
    Second District
    — January 3, 1972.

      Modified on denial of rehearing February 10,1972.

      Murray R Conzelman, of Waukegan, for appellant.
    Wm. J. Scott, Attorney General, of Chicago, (Morton Friedman, Assistant Attorney General, of counsel,) for appellee.
   Mr. PRESIDING JUSTICE THOMAS J. MORAN

delivered the opinion of the court:

The petitioner, North Shore Sanitary District (hereinafter referred to as the District), seeks review of a decision rendered by the Pollution Control Board (hereinafter referred to as the Board).

While this review was pending, the Environmental Protection Agency (hereinafter referred to as Agency) moved this Court to dismiss the appeal as being moot. The motion and answer thereto were taken with the case. The motion is here denied.

The District is a municipal corporation which provides sewerage treatment to a portion of Lake County. It is bounded by Wisconsin on the north, the Cook County line on the south, Lake Michigan on the east, and, on the west, by the watershed divide between the Des Plaines River and Lake Michigan. The District has a plant located in each of the municipalities of Waukegan, North Chicago, Lake Bluff and Lake Forest, and three in Highland Park. All of these plants discharge their effluent, after chlorination, into Lake Michigan through extended outfalls.

In 1968, the federal government held a four state conference for the states of Wisconsin, Illinois, Indiana and Michigan, at which it was decided that, by the end of 1972, eighty percent of all phosphate should be removed from raw sewerage being discharged into Lake Michigan. The District intended to comply with this requirement.

On July 1, 1970, the Environmental Protection Act (hereinafter referred to as the Act) became effective in the State of Illinois. (S.H.A., Ch. 111%, Sec. 1001 et seq.) This Act provides for the creation of the Pollution Control Board whose function, in part, is to adopt rules and regulations to accomplish the purposes of the Act. Ch. 111%, Secs. 1005, 1010, 1013, 1017, 1022, 1025, 1026, 1027 and 1028. Pursuant to the authority granted by the Act, the Board, on January 6, 1971, adopted a phosphate regulation, R70-6, which amended the standard previously established by the Illinois Sanitary Water Board. R70-6 provides that by the end of 1971, a percentage of phosphate shall be removed from water and effluent discharged into Lake Michigan. This regulation, in effect, advances the date of phosphate removal from the end of 1972 to the end of 1971.

On March 4, 1971, the District, pursuant to Title IX of the Act, filed a petition with the Board requesting a variance from R70-6 for all of its plants except the one located in Waukegan. The District requested that the phosphate removal regulation not be applied to the six plants until the end of 1972 due to unreasonable hardship. The District requested a variance from only that part of the regulation applicable to effluent, and did not request a variation from the water standards portion of the regulation.

The Board held a hearing on the petition in which the District called three witnesses on its behalf. Raymond E. Anderson, Secretary and General Manager of the District, testified that the District was notified in 1963 that its plants were overloaded and should be expanded; that in 1967, after delay not caused by the District, the District proceeded with its expansion program; that upon completion of the expansion program, effluent will no longer be discharged into Lake Michigan; that in order to raise money for the expansion program a thirty-five million dollar bond issue was presented to the voters of the District in a referendum; that the referendum passed; that the District may be able to obtain sixteen million dollars from the federal government toward its program; that construction costs for the program are currently estimated at eighty-six million dollars; that, consequently, the District is in dire need of funds in order to undertake the program; and that, in his opinion, if the District did not remove phosphate from its effluent until the end of 1972, there would be very little damage to the Lake because of the proportionately small amount of flow emanating from the District.

Herbert W. Byers testified that he is Chief Engineer of the District; that in order to comply with R-70-6, the District would have to construct temporary facilities at all of its plants; that the cost of the facilities would be $654,000 the first year, and $292,000 for each year thereafter; that the District does not have the funds necessary for these facilities; that once the expansion program is completed and no raw sewerage is discharged into the Lake, the temporary facilities would not be needed; that the facilities would then, in all probability, be useless, and the District would not recoup its original expenditure; and that, in his opinion, if the District does not remove phosphate until the end of 1972, there would be no adverse effect upon the Lake.

Matt Stahl testified that he is a sanitary engineer with the U.S. Navy, stationed at Great Lakes, Illinois; that presently the Navy operates its own sewerage disposal plant; that the Navy has entered into negotiations with the District in order to have the District treat and dispose of the Navy’s sewerage; and that any connection to the District’s facilities would not occur until 1972.

The Agency produced no witnesses on its behalf.

On June 1, 1971, the Board rendered a final administrative decision consisting of an opinion and order in which the variance requested was denied. The Board based its decision on the grounds that, first, the one year delay in compliance would result in a harmful effect upon the Lake, and second, the cost of erecting temporary facilities and removing phosphate would be substantiaUy less than indicated by the District’s testimony. The Board reached these two conclusions after considering data, opinions, and testimony adduced at former hearings, none of which appear in the record before us.

The Act, Sec. 1041, provides that review of a Board decision may be obtained pursuant to the Administrative Review Act, Ill. Rev. Stat. 1969, Ch. 110, Sec. 264 et seq. However, instead of seeking review in the Circuit Court, the petitioner is afforded review directly in the Appellate Court. Therefore, the District seeks direct review in this Court contending that the Board’s decision is against the manifest weight of the evidence in that all the evidence appearing in the record is favorable to the position of the District.

This case is the first one arising under the Act wherein a decision of the Board will be reviewed. Consequently, the District has requested us to set forth procedural guidelines which wffl control all future hearings, whereas the Agency requests us to establish a rule that will grant almost total deference to the expertise of the Board.

The Agency first contends that we. do not have jurisdiction to review the Board’s decision in that the District is challenging the validity of R70-6, and that it is barred from doing so because it did not appeal the enactment of the regulation. However, the District does not now chaHenge the validity of the regulation; rather, it seeks relief from the strict application of the rule due to unreasonable hardship. The Agency counters that the petition, in effect, chaUenges the validity of R70-6 because only the District is affected since it alone discharges waste into Lake Michigan. This fact, however, does not appear in the record; to the contrary, the record indicates that the U.S. Navy at Great Lakes discharges into the Lake.

We come then to the central issue in the case. The Agency admits that the Board based its decision upon matters which are not within the record. Therefore, we must decide whether, according to IHinois law, an administrative agency can base its decision upon facts, data and testimony which do not appear in the record.

The Illinois cases have held that the reviewing court will search only the record in order to ascertain if the administrative findings are supported by the evidence.

“* * * the courts are not authorized to reweigh the evidence or to make an independent determination of the facts. The reviewing court is limited to a consideration of the record to determine if the findings and orders of the administrative agency are against the manifest weight of the evidence * * [emphasis added]. Parker v. Dept. of Registration (1955), 5 Ill.2d 288, 294.

(See also: Harrison v. Civil Service Com. (1953), 1 Ill.2d 137, 145; Strohl v. Macon Co. Zoning Board (1952), 411 Ill. 559, 563; Secaur v. Civil Service Com. (1951), 408 Ill. 197, 202-203; Drezner v. Civil Service Com. (1947), 398 Ill. 219, 227-228.)

The courts have gone even further, and have exphcitly held that:

“It is fundamental that a decision pursuant to an administrative hearing must be based upon testimony and other evidence received at the hearing and that a conclusion influenced by extraneous considerations must be set aside * * *” Des Plaines Cur. Exch., Inc. v. Knight (1963), 29 Ill.2d 244, 247.

(See also: Smith v. Dept. of Reg. & Education (1952), 412 Ill. 332, 345-349, and cases cited therein; Garces v. Department of Reg. & Education (1969), 118 Ill.App.2d 206, 224; Grab It Here Liquor Store v. I.L.C. Comm. (1964), 53 Ill.App.2d 31, 34; Fantozzi v. Board of Fire & Police Com'rs. (1962), 35 Ill.App.2d 248, 256-257, aff'd. 27 Ill.2d 357 (1963).) The rationale for restricting findings to evidence in the record is that due process of law requires that all parties have an opportunity to cross-examine witnesses and to offer evidence in rebuttal. (Garces v. Department of Reg. & Education, supra.) Consequently, according to IEinois law, the Board cannot properly base its findings upon information not found in the record.

The Agency agrees that the foregoing is a correct characterization of IEinois administrative law, but argues 1) that the Board should be treated differently than other administrative agencies by granting total deference to its expertise as, it is aEeged, is the case with federal agencies, and 2) that a stipulation by the District placed aE of the Board’s files, records and orders, upon which is based its decision, into the record.

We have read the cases cited by the Agency and have researched other federal decisions, but we do not find support for the proposition that federal law allows administrative agencies to base their decisions on factors without the record. Rather, the rule established by the United States Supreme Court has always been that administrative decisions must be supported by substantial evidence contained in the record. (Int. Com. Commn. v. Louis, & Nash. R.R. (1913), 227 U.S. 88, 93-94; U.S. v. Abilene & So. Ry. Co. (1923), 265 U.S. 274, 288-289; Ohio Bell Tel. Co. v. Comm’n. (1936), 301 U.S. 292, 300-305; Goldberg v. Kelly (1970), 397 U.S. 254, 271.) We cannot, therefore, by federal example, allow the Board to exercise unrestricted discretion, nor can we find any compelling reason to treat it differently than other Illinois administrative tribunals.

At the end of the hearing the District stipulated, “that the Board may take judicial notice of its own files and records, and its own orders.” Although this stipulation presented the Board with the authority to consider its files and records in making its determination, it was not an agreement that the Board could base its decision upon information not placed within the record. In light of the broad stipulation, the Agency could have included portions of its files and records but did not do so. Failure to do so preempted this Court from reviewing evidence that may have been considered by the Board in reaching its decision. Consequently, we have no alternative but to reverse the order of the Board.

Order reversed.

ABRAHAMSON and GUILD, JJ., concur.

MODIFICATION ON DENIAL OF REHEARING It is further ordered that the variance requested by the petitioner as set forth in the opinion herein be allowed.


author: Mr. JUSTICE SEIDENFELD

text:
    Thomas Coffey, Plaintiff-Appellant, v. Edward MacKay et al., Defendants-Appellees.
    (No. 70-217;
    Second District
    — January 10, 1972.

      R. L. Huszagh and Raymond Agrella, both of Wheaton, and Redman, Shearer & O’Brien, of St. Charles, for appellant.
    James A. Geraghty, of Glen Ellyn, Reis, Kula, & Young, of Lombard, and Rathje, Woodward, Dyer & Burt, of Wheaton, for appellee.
   Mr. JUSTICE SEIDENFELD

delivered the opinion of the court:

Thomas Coffey, sued the defendants Edward MacKay, Lois MacKay, MacKay Publications, Incorporated, John B. Brust, d/b/a Brust Funeral Home, Roger B. Ytterberg and Leo A. Ozier, seeking damages based on an alleged conspiracy to destroy plaintiff’s funeral business and to libel and slander him. The trial court first dismissed Ozier as a party defendant with prejudice but with leave to file in the Court of Claims. In a separate order the court dismissed the original single count complaint with leave to amend. Thereafter the court dismissed the amendment to the complaint, Count II, and the second amendment to the complaint, Counts III and IV. The plaintiff appeals from the orders dismissing the complaint and the amendments.

The allegations of fact in support of the various counts of the complaint are substantially the same. Coffey operated a funeral home in Lombard, Illinois, and was a member of the Du Page County Funeral Directors Association; Brust operated the only other funeral home in Lombard; the MacKays were the owners, officers and operators of MacKay Publications which published the “Lombardian”, a newspaper with a large general circulation in Lombard and in Du Page County. Ytterberg was executive secretary of the Illinois Funeral Directors Association and editor of the Associations newsletter which had a wide circulation among members of the Association and other funeral directors in the State of Illinois and in many cities in surrounding states.

The MacKays and Brust on or about February 10, 1969, conspired among themselves to make false complaints against plaintiff in order to initiate investigations about his honesty, integrity, competence and as to his right to continue as a funeral director. These defendants conspired also to make false complaints to the Du Page County Funeral Directors Association that plaintiff had been fabricating obituaries for insertion in a local newspaper. The MacKays are charged with acts in furtherance of the conspiracy, consisting of incorrectly listing the name of a deceased, “Charles E. Sakis” as “Charles E. Fakis”, in the February 12, 1969, edition of the “Lombardian”, although the name was correctly listed in another Lombard paper and in the Chicago newspapers. The spelling was corrected in the February 19th edition. The MacKays then used the incorrect name in making subsequent complaints. Lois MacKay telephoned the president of the Du Page County Funeral Directors Association, one Schneider, and told him that plaintiff was running fake funerals and false obituaries. The MacKays and Brust contacted Ytterberg and told him to take action to take away plaintiff’s right to operate as a funeral director; Ytterberg agreed with the MacKays and Brust to assist them in ruining plaintiff’s good name and putting him out of business.

Ytterberg then complained orally and in writing to the Illinois Department of Public Health, Bureau of Vital Records, that plaintiff had inserted a number of false obituaries in the February 19th, 1969, issue of the “Lombardian”; made written complaint to the Illinois Department of Registration and Education that plaintiff had conducted fake funerals and had violated the IHinois Funeral Directors and Enib aimers Act.

Ytterberg also inserted a news item in the March 28th, 1969, issue of the IHinois Funeral Directors Newsletter:

“A FUNERAL DIRECTOR who has reportedly been fabricating obituaries for insertion in a local newspaper — evidentally on the theory that they have a beneficial, and free, advertising effect — is being investigated by the Department of Registration and Education, the Bureau of Vital Records and the Internal Revenue Service. The investigators are seeking evidence of fraud, failure to file death certificates and unreported income.”

knowing that the statements were untrue, and intending that readers, including funeral directors in this and neighboring states and other persons in related businesses, would know that the article referred to plaintiff although his name was not mentioned. It was further alleged that readers became curious about the identity of the person being investigated and were able to determine that the news item referred to the plaintiff.

The complaint aUeged that the defendants acted with malice by making the aUeged complaints knowing they were false and that plaintiff was damaged in amounts specified in the various counts. The complaint also aUeged inconsistently that the defendants did not contact him to determine the truth or falsity of the allegations against him.

On appeal, plaintiff has filed a motion to amend the complaint (which we have taken with the case), seeking to aHege that he was actuaUy forced out of business.

After the original complaint was stricken with leave to plead over, plaintiff filed the pleading entitled “Amendment to Complaint” (Count II) and thereafter filed a pleading entitled “Second Amendment to Complaint” (Counts III and IV). Both amended pleadings incorporated certain aUegations of the original complaint. EssentiaHy, Count II charges a common law conspiracy to libel and slander plaintiff; Count III charges that defendants conspired to violate the IHinois Antitrust Act (Ill. Rev. Stat. 1969, ch. 38, par. 60 — 3(2); and Count IV charges the defendants conspired to acquire monopoly power over the funeral business in the Lombard area for the purpose of excluding competition and fixing prices, also, in violation of the IHinois Antitrust Act (ch. 38, supra, par. 60 — 3(3).

The sufficiency of the pleadings is to be tested by rules which have been often stated. Pleadings are to be liberaHy construed with a view that controversies shall be determined on their merits to do substantial justice, rather than determined on technicalities. (Ill. Rev. Stat. 1969, ch. 110, pars. 33(3), 42(2); (Fitzgerald v. VanBuskirk (1968), 96 Ill.App.2d 432, 435, 436.) (See also Monroe College of Optometry v. Goodman (1947), 332 Ill.App. 78, 91, 92, 93.) Plaintiff is not required to allege facts with precision which to a greater degree of exactitude are within the knowledge of defendants rather than the plaintiff. (Field v. Oberwortmann (1957), 14 Ill.App.2d 218, 221.) A motion to dismiss admits allegations which are well pleaded, but not conclusions. Stenwall v. Bergstrom (1947), 398 Ill. 377, 383; Dean v. Kirkland (1939), 301 Ill.App. 495, 503.

The amendment to the complaint is framed on a theory of a common law conspiracy by the various defendants. The gist of this action is not the conspiracy itself but the acts done and the damages caused by overt actions of the alleged conspirators in pursuance of their common cause. Kovar v. Bremer (1935), 281 Ill.App. 505, 508 (see also Kovar v. Bremer (1938), 294 Ill.App. 225, 231; Dean v. Kirkland, 301 Ill.App. 495, 504, supra; Field v. Oberwortmann, 14 Ill.App.2d 218, 226, 227 supra.

Plaintiff asserts that the item in the Illinois Funeral Directors Newsletter constitutes a libel against him. He alleges that other funeral directors and persons in related businesses knew or became aware after reading the news item that it referred to him. Plaintiff argues that the pleading is sufficient and that opinion evidence as to the identity of a person referred to in a libelous publication would be admissible in the proof.

For a complaint to be sufficient to allege publication of a libelous article when it does not name the plaintiff, it must appear on the face of the complaint that a third person reading the article must have reasonably understood that the article was written of and concerning the plaintiff and that it referred to him. (Algozino v. Welch Fruit Products Co. (1951), 345 Ill.App. 135, 143; Voris v. Street & Smith Pub. (1947), 330 Ill.App. 409, 413; Duvivier v. French, 104 F. 278, 281 (CCA7-1900).) Here plaintiff has failed to allege those facts by which a reasonable man might infer that a third party reading the news items might understand it to refer to the plaintiff.

While opinion evidence is admissible as to the identity of a person referred to in a libelous publication, the pleadings as a matter of law must first be shown to have raised a question of fact. (John v. Tribune Company (1962), 24 Ill.2d 437, 440, 441.) But in this case the conclusionary allegations by the plaintiff that the articles were understood by other funeral directors to refer to plaintiff are not sufficient to raise a question of fact on the face of the pleadings. This became a defect of law and could not have been cured by other proof. The action based upon these allegations was properly dismissed by the court.

Plaintiff further argues that the allegations concerning Lois Mac-Kay’s telephone call to Schneider and Ytterberg’s complaint to the Bureau of Vital Records and the Department of Registration and Education, constitute overt acts in furtherance of the conspiracy. Plaintiff has also alleged in effect that the false complaints of the MacKays and Brust to Ytterberg are such other overt acts. These latter allegations do not state a cause of action for libel and slander, since there must be publication of the defamatory matter to a third person, not a defendant. The allegations of complaints to Ytterberg, a defendant, and alleged co-conspirator, thus are not actionable. McLaughlin v. Schnellbacher (1895), 65 Ill.App. 50, 55.

The allegations of a conspiracy on the part of the defendants plus overt actions by Lois MacKay and Ytterberg are sufficient to state a cause of action for a conspiracy to injure the business of the plaintiff through libel and slander. (Kovar v. Bremer, 281 Ill.App. 505, supra; Monroe College of Optometry v. Goodman, 332 Ill.App. 78, 92, supra.) Plaintiff has alleged sufficient facts to make it appear that the alleged wrongful acts of defendants resulted from concerted action. Majewski v. Gallina (1959), 17 Ill.2d 92, 99, 100; Commercial Products Corp. v. Briegel (1968), 101 Ill.App.2d 156, 164.

We agree with plaintiff that the alleged statements and writings of the defendants would constitute libel and slander per se. See Whitby v. Associates Discount Corp. (1965), 59 Ill.App.2d 337, 340, 341; Tunnell v. Edwardsville Intelligencer, Inc. (1968), 99 Ill.App.2d 1, 12; Mitchell v. Peoria Journal-Star, Inc. (1966), 76 Ill.App.2d 154, 160; Coursey v. Greater Niles Tp. Pub. Corp. (1967), 82 Ill.App.2d 76, affirmed 40 Ill.2d 257; Reed v. Albanese (1966), 78 Ill.App.2d 53, 58.

We also agree with plaintiffs position that when libel per se or slander per se are aHeged, it is not necessary to allege or prove special damages as both malice and damages are presumed. Cowper v. Vannier (1959), 20 Ill.App.2d 499, 501.

While neither party have argued the issue of conditional privilege attached to the aHeged statements and writings of the defendant, (see Judge v. Rockford Memorial Hospital (1958), 17 Ill.App.2d 365, 378, 379 we note that plaintiff has alleged actual malice by the defendants in malting the aHeged complaints knowing that they were false. This is a sufficient allegation of actual mahce to negate the issue of conditional privilege which arises because Brust, as a competitor of the plaintiff, and the MacKays, as the operators of the newspaper in which the alleged false obituaries were published, and Ytterberg, as executive secretary of the state trade association, had the requisite interest or duty to rebut the prima facie inference of malice which otherwise would have arisen from the publication. See Schlaf v. State Farm Mut. Auto. Ins. Co. (1957), 15 Ill.App.2d 194, 199.

AppeHant next argues, without citing authority beyond the bare words of the IUinois Antitrust Act, Ch. 38, Sec. 60, I.R.S., that Count III alleges a conspiracy in violation of Sec. 60 — 3(2) relative to restraint of trade and Count IV aUeges a conspiracy in violation of Sec. 60 — 3(3) relative to monopoly. Under Counts III and IV, plaintiff substantiaUy reaUeges aU the facts under Count II with the additional aUegations that the “Lombardian”, as a pubKc service and as a news item of general interest to the public, customarily published obituaries. The MacKays and MacKay Publications, Inc. refused to publish plaintiff’s obituaries and to run plaintiff’s ads foUowing the event aUeged in Count II, though requested to do so on numerous occasions. Meanwhile, they continue to pubHsh the obituaries of the Brust Funeral Home.

Both counts were properly dismissed by the trial court as failing to state a cause of action. Sec. 60 — 11 of the Antitrust Act provides:

“When the language of this Act is the same or simffar to the language of a Federal Anti-trust Law, the courts of this state in construing this Act shaU foUow the construction given to the Federal Law by the Federal Courts.”

Sec. 60 — 3(2) is similar to 15 USCA, Sec. 1 which provides in part, “Every contract, combination, in the form of a trust or otherwise, or conspiracy in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal * * Sec. 60 — 3(3) is similar to 15 USCA, Sec. 2 which provides in part, “Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a misdemeanor * #

The crux of plaintiff’s complaints under Counts III and IV is that the MacKays and MacKay Publications, Inc. refused to publish obituaries or accept plaintiffs ads. Plaintiff has realleged that the obituary of Saids was properly carried by the “Lombard Spectator” and by various Chicago newspapers. Appellees point out appellants reference to the “Lombard Area” and ask that we take judicial notice that Lombard has common boundaries with the municipalities of Elmhurst and Villa Park, which we do. We also take judicial notice of Lombard’s proximity to urbanized area in and about Chicago. In the absence of allegations of other facts, there is a failure to state a cause of action under Sec. 60 — 3(2) or Sec. 60 — 3(3) of the Antitrust Act where the only allegation is a bare refusal to deal with the plaintiff while dealing with a competitor of the plaintiff. (Six Twenty-Nine Productions, Inc. v. Rollins Telecasting, Inc. (1965), 365 F.2d 478; Lorain Journal Co. v. U.S. (1951), 342 U.S. 143, 72 S.Ct. 181, 96 L.Ed. 162.) The judgment of the trial court, dismissing Counts III and IV is affirmed.

The motion to amend the pleadings here to allege that “the plaintiff was unable to remain in business as a funeral director in Lombard, and was forced out of the funeral business in Lombard”, is denied. We find that the motion was not timely made and further that plaintiff has failed to show that the amendment is necessary or that no prejudice will result to the defendants if it is allowed. Also there is no showing that the issues sought to be raised by the amendment are supported by the facts in the record on appeal. See Supreme Court Rule 362.

Plaintiff has attempted to appeal both the order dismissing the original complaint with leave to amend and the order dismissing the amendment to the complaint, Count II, and the second amendment to the complaint, Counts III and IV. Plaintiff’s attempt to appeal the dismissal of the original complaint is a violation of Supreme Court Rule 273. The trial court struck the original complaint with leave to plead over. Plaintiff elected to plead over rather than stand on the complaint and is bound by that election. (See Martin v. Masini (1967), 90 Ill.App.2d 348, 353.) Of course, to the extent that the allegations contained in the original complaint are incorporated by reference in the amendment to the complaint, they are properly considered.

The cause is remanded to the trial court with directions to reinstate those portions of the pleading in Count II which we have held to state a cause of action and to further proceed in accordance with this opinion.

Affirmed in part, reversed in part and remanded with directions.

MORAN, P. J., and ABRAHAMSON, J., concur.

       Section 60 — 3 provided “Every person shall be deemed to have committed a violation of this Act who shall:
      # # #
      (2) By contract, combination, or conspiracy with one or more other persons unreasonably restrain trade or commerce; or
      (3) Establish, maintain, use, or attempt to acquire monopoly power over any substantial part of trade or commerce of this State for the purpose of excluding competition or of controlling, fixing, or maintaining prices in such trade or commerce;’’


author: Mr. PRESIDING JUSTICE SEIDENFELD

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Albert M. Day, Defendant-Appellant.
    (No. 71-25;
    Second District
    — January 10, 1972.

      Morton Zwick, Director of Defender Project, of Chicago, (Ralph Reubner and Kenneth L. Gillis, of Defender Project, of counsel,) for appellent.
    Jack Hoogasian, State’s Attorney, of Waukegan, for the People.
   Mr. PRESIDING JUSTICE SEIDENFELD

delivered the opinion of the court:

The defendant, Albert M. Day, was indicted for attempted murder and aggravated battery. The charges arose from a single incident alleged to have occurred on May 4th, 1969. After a jury trial, defendant was convicted of aggravated battery and sentenced to the penitentiary for 3 to 7 years.

On appeal, defendant urges that the jury was improperly instructed and also that he was not proven guilty beyond a reasonable doubt.

The alleged victim and his brother testified to the knifing in the tavern. A patron corroborated essential details of the attack by defendant but did not see the knife. The bartender also gave corroborative testimony for the State. The testimony of the State’s witnesses clearly established that defendant was the aggressor, that defendant had the knife and that his victim had nothing in his hands at the time of the stabbing.

The defendant’s argument that he was not proven guilty beyond a reasonable doubt since the only evidence directly contradicting his assertion of self-defense was the testimony of the complaining witness and his brother, is not persuasive. The argument is not supported by the evidence because there were other State’s witnesses whose testimony corroborated the testimony of the complaining witness and his brother and who also said that defendant was the aggressor. Moreover, the testimony of even one witness, including the complaining witness, can be sufficient to convict. (See The People v. Gipson (1963), 29 Ill.2d 336, 341.) The case turns upon the credibility of witnesses. We do not find that the evidence justifies entertaining a reasonable doubt of defendant’s guilt and we cannot substitute our judgment as to the weight of the evidence or the credibility of the witnesses for the judgment of the jury. The People v. Novotny (1968), 41 Ill.2d 401, 411, 412; People v. Sevastos (1969) , 117 Ill.App.2d 104, 108, 109.

Defendant has complained of People’s Instruction No. 16 (I.P.I. Criminal 24.09) claiming that the introductory language

“A person who initially provokes the use of force against himself is justified in the use of force only if * *

erroneously assumed as a fact that defendant had initially provoked the encounter although there was conflicting evidence. The instruction was properly given. There was conflicting evidence whether defendant struck the first blow or whether the victim initially went for his knife, or appeared to do so. The instruction, together with People’s Instruction No. 15 (I.P.I. Criminal 24.06) which also states the circumstances under which a person is justified in the use of force to defend himself gave the applicable law to the jury to resolve the issues on either hypothesis. (See The People v. Jordan (1960), 18 Ill.2d 489, 495; People v. McBride (1970), Ill.App.2d; 264 N.E.2d 446, 451. The People v. Morris (1956), 9 Ill.2d 359), cited by defendant is not applicable here. In Morris, an instruction directly invited the jury to consider the weight to be given to an oral confession although there was a conflict whether the confession had been made. Here, the instruction is properly framed in hypothetical terms.

The contention of defendant that the trial court erred by not giving —on its own motion and without any request by defendant — an instruction that the jury could find the defendant guilty of the lesser included offense of simple battery, also does not offer a basis for reversal. There is no evidence bearing on the lesser included offense here. Unquestionably the bodily harm inflicted was great. There would have been no cause for the court to instruct on the elements of simple battery on its own motion (The People v. Caldwell (1968), 39 Ill.2d 346, 355; The People v. Taylor (1967), 36 Ill.2d 483, 489), or even on request.

The defendant also argues that although he tendered Defendant’s Instruction No. 3 defining the elements required to be proved to sustain the charge of aggravated battery, the court still erred in giving the instruction substantially in the form tendered. Defendant urges that he was prejudiced because the instruction did not include the element of defendant’s reasonable belief that the force used was necessary in his self-defense. This element was included in the People’s Instruction No. 15 (I.P.I. Criminal 24.06) which was given. Defendant’s Instruction No. 3 (I.P.I. Criminal 25.05 combined with I.P.I. Criminal 11.08) included the requirement that the State must prove,

“That the defendant was not justified in using the force which he used * *

The jury, therefore, was adequately instructed on the issue of defendant’s use of force in support of his claim of self-defense. Additionally, the defendant did not submit the particular instruction which he now claims should have been given; and the court was not required to instruct the jury in the particular form now urged by the defendant on its own motion. The People v. Caldwell, 39 Ill.2d 346, supra; The People v. Taylor, 36 Ill.2d 483, supra.

The evidence is sufficient to sustain the jury’s verdict in a trial free from substantial error.

The conviction of the defendant is affirmed.

Judgment affirmed.

ABRAHAMSON and MORAN, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Michael Briseno, Defendant-Appellant.
    (No. 71-32
    Second District
    — January 10, 1972.

      Bernard Brody and Edward M. Genson, both of Chicago, for appellant.
    William V. Hopf, State’s Attorney, of Wheaton, (Malcolm F. Smith, Assistant State’s Attorney, of counsel,) for the People.
   Mr. PRESIDING JUSTICE THOMAS J. MORAN

delivered the opinion of the court:

The defendant, Michael Briseno, was charged with felony theft under Section 16 — 1(d)(1) of the Criminal Code (111. Rev. Stat. 1967, ch. 38, sec. 16 — 1(a) (1), found guilty in a bench trial and sentenced to one to four years in the penitentiary.

At 4:50 A.M., May 16, 1969, Officer Schorman of the Villa Park Police observed two males in the parking lot of Hejhal Oldsmobile. After radioing for assistance, he observed a 1957 Chevrolet moving out of the lot. Responding to the call for assistance, Officer Urso stopped the existing auto. The driver and passenger, Richard Briseno and his brother Michael, were searched, handcuffed and placed under arrest. The car was then searched and on the right front floorboard were found 16 chrome lug nuts wrapped in a sweater; in the trunk were two whitewall tires mounted on magnesium wheels. Officer Schorman searched the Hejhal lot and found a new Oldsmobile which was missing two tires, magnesium wheels and 16 lug nuts.

Both brothers were indicted for theft and found guilty. Only Michael Briseno appeals.

The defendant first alleges that the value of the stolen property was not proven to be in excess of $150. In order to have a valid conviction for the felony (rather than the misdemeanor) of theft the value of the stolen property must be proven, beyond a reasonable doubt, to be in excess of $150. Ill. Rev. Stat. 1967, ch. 38, sec. 16 — 1; The People v. Tassone (1968), 41 Ill.2d 7,12; People v. Kurtz (1966), 69 Ill.App.2d 282, 288, affirmed in part and reversed in part on other grounds, (1967) 37 Ill.2d 103.

At the trial, the service manager for Hejhal Oldsmobile referred to an OldsmobUe Parts and Accessory Catalogue and testified to the value of the stolen property. He stated that the retail price of the tires, wheels and lug nuts was $201.54; that with the maximum discount allowable to certain customers the price was $151.59; that the dealer’s cost was $128.08. All prices quoted excluded tax. Raul Briseno, the father of the defendant, testified that during the trial he purchased two identical wheels and tires for $130.68, tax excluded. A defense witness, employed by another Oldsmobile dealer, testified from a price list which he stated was in effect at the time of the theft. On direct examination he testified to the retaü and discounted prices for only the magnesium wheels; on cross examination he testified that the retail price of aU the stolen property was $166.60.

The criterion used in determining value in theft cases is the fair cash market value at the time and place of the theft. (The People v. Kurtz, supra, at 110-111; The People v. Stewart (1960), 20 Ill.2d 387, 393; People v. Hayes (1971), Ill.App.3d, 272 N.E.2d 423, 427.) The defendant alleges that Hejhal’s cost is determinative of market value because the dealer’s loss due to the theft would have been only the cost for replacement of the property. In Illinois law, however, cost does not determine fair market value. The People v. Rose (1960), 19 Ill.2d 292, 295; The People v. Todaro (1958), 14 Ill.2d 594, 601; People v. Hayes, supra at 427.

The defendant contends that the trial judge erred in finding the retail price indicative of the fair cash market value, basing this contention upon the fact that Hejhal sells wheels, tires and lug nuts to gas stations and insurance companies at discounted prices, concluding that “no one market should be used in determining value.” Concomitantly, testimony indicated that, at the highest discount allowable, the price of the stolen items would be in excess of $150. Substantively, however, the contention is answered by the fact that case law sets forth retail price as a proper measure of market value. (The People v. Hansen (1963), 28 Ill.2d 322, 340; People v. Leman (1968), 95 Ill.App.2d 212, 218-219; People v. Davis (1968), 94 Ill.App.2d 86, 88-89.) In Hansen the Supreme Court held that where, at the time of the theft, the retail market is the only market open for sale, the retail price determines market value. In the case at bar it is admitted by the defendant that the stolen items were part of an auto awaiting sale; evidence indicated that the retail prices for the optional whitewall tires, magnesium wheels and chrome lug nuts were included in the retail price of the auto. Therefore, as in Hansen, the retail market was the market open for the sale of the property stolen. Since both a prosecution witness and a defense witness testified that the retail price was in excess of $150, the value necessary for a felony conviction was proven beyond a reasonable doubt.

The trial judge gave little weight to the price which defendant’s father paid for the wheels and tires, finding the purchase to be an isolated discount sale and one not necessarily indicative of market value. Additionally, an examination of the record reveals that the father’s purchase did not include lug nuts.

Defendant contends that he was not proven guilty beyond a reasonable doubt on the premise that being a mere passenger in a car is insufficient to sustain a conviction for the theft of items found in the car. (The People v. Evans (1962), 24 Ill.2d 11.) The evidence clearly discloses that defendant was more than a mere passenger: the lug nuts were found inside the auto in the area where the defendant had been seated (see, The People v. Reynolds (1963), 27 Ill.2d 523;) a fingerprint expert testified that defendant’s fingerprints were found on the Oldsmobile from which the property had been stolen; the defendant’s brother Richard testified that he fell asleep in the car while Michael was driving and awoke when they were in Hejhal’s lot, that Michael told him it was his turn to drive and that none of the stolen property had been in the auto when they left their home that morning. After reviewing all of the evidence we are satisfied that defendant’s guilt was proven beyond a reasonable doubt. (See The People v. Reynolds, supra; People v. Ricketson (1970), 129 Ill.App.2d 365, 378-379.) We therefore affirm the judgment.

Judgment affirmed.

GUILD and SEIDENFELD, JJ„ concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Tyrone Springs et al., Defendants-Appellants.
    (No. 71-40;
    Second District
    — January 10, 1972.

      Rehearing denied February 10, 1972.

      Howard T. Savage, of Chicago, for appellant.
    Jack Hoogasian, State’s Attorney, of Waukegan, (John V. Virgilio and Michael M. Sieman, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. PRESIDING JUSTICE SEIDENFELD

delivered the opinion of the court:

The defendants, Tyrone Springs and Dennis White, were jointly indicted for Burglary. Tried together before a jury, both were found guilty. Springs was sentenced to a term of 3 to 6 years; White to 4 to 8 years. Their separate notices of appeal have been consolidated. The sufficiency of the indictment and the propriety of the trial court’s instructions are the issues raised.

The indictment charges the defendants with Burglary, “in that they knowingly, without authority, entered a building, better described as a dwelling house, located at 932 McAlister Street, First Floor Apartment, Waukegan, Lake County, Illinois, and occupied by Mary Jereb, with intent to commit therein a theft, * *

Defendants argue that the indictment is fatally defective because neither the ownership of the building nor proprietary interest in it is stated. They also claim that the indictment is further defective in failing to describe or allege any proprietary interest in the property said to be the object of the intended theft.

Defendants rely upon authorities which have held that the failure to allege ownership or proprietary interest in the building or premises broken or entered is a defect which is jurisdictional and thus fatal. E.g., People v. Picard (1918), 284 Ill. 588, 590; People ex rel. Ledford v. Brantley (1970), 46 Ill.2d 419, 421; People v. George (1970), Ill.App.2d, 264 N.E.2d 273.

The State responds that the current cases hold that the indictment need only refer to possession (e.g. People v. Henry (1966), 68 Ill.App.2d 48, 51); or occupancy (e.g. People v. Stewart (1961), 23 Ill.2d 161, 167, 168), or ownership (e.g. People v. Knox (1968), 98 Ill.App.2d 270, 272), which is rightfully in someone other than a defendant. The State concedes that there is a need to state an interest in someone other than a defendant, together with an unlawful entry by a defendant so that the person charged may be able to prepare for trial and plead a former judgment in bar of another prosecution for the same offense. It has also been said that an allegation of interest is required in order to show that the building was not the property of the accused and to negative his right to enter it. See The People v. Stewart, supra, at page 167.

The State argues from the cited cases that the terms “occupancy” and “possession” are used interchangeably to connote a “right to possession that is lawful” as opposed to occupancy and possession of the premises by the burglar which is unlawful. Thus that the statement in this indictment of the defendants’ unlawful entry into premises occupied by Mary Jereb at a specified address is a sufficient pleading to enable defendant to properly defend and to enable him to plead a judgment in bar of a subsequent prosecution, and to negative the defendants right to enter the premises. We agree.

Cases relied upon by the defendants are distinguishable. To the extent that People v. Picard, 284 Ill. 588, supra, rules that the ownership of the object of an alleged theft must be stated in the indictment, People v. Stewart, 23 Ill.2d 161, at page 168, supra, has overruled Picard.

Stewart also states the rule that occupancy or possession of the burglarized premises may be pleaded rather than the legal title. Ownership, considered a required allegation by the Picard court, is no longer a necessary element of proof (See Ill. Rev. Stat. 1969, ch. 38, pars. 19, 111 and 114), and the failure to allege ownership in the indictments does not void the charge. People v. Stewart, supra, at page 168; People v. Peck (1963), 29 Ill.2d 480, at page 483, 484.

People ex rel. Ledford v. Brantley, 46 Ill.2d 419, supra, followed in the People v. George, 264 N.E.2d 273, supra, are essentially relied upon by defendants. However, in Brantley, as well as in George, the court found neither an ownership allegation nor a reference to possession or occupancy in the indictment, and further found that there was no identification of the building burglarized. Here, the building was identified and occupancy by Mary Jereb, together with the unauthorized entry by defendants, was alleged.

The indictment charging these defendants with burglary was inartfully drawn but in our opinion is not void.

A stipulation was entered into at the trial that, Mary Jereb, if called, would testify that she is both the owner and occupant of the specified first floor apartment; that on March 27th, 1970, she gave no one permission or consent to enter her apartment, nor permission to move the T.V. set or radio into the kitchen area by the back door. Thus defendants cannot claim, and in fact do not claim, that there is a variance between the indictment and proof.

At trial, defense counsel tendered I.P.I. Criminal Instruction 3.02 (“You should not find the defendant guilty unless the facts and circumstances proved exclude every reasonable theory of innocence * * *”) pertaining to circumstantial evidence, and also tendered an instruction relative to the weight of police testimony, which is not found in I.P.I. Criminal. The defendants have argued that the State’s case consists entirely of circumstantial evidence relative to whether they broke the window, entered Mary Jereb’s apartment, ransacked the place and started to remove her T.V. set and radio. Defendants argue that the testimony of the three arresting officers dealt only with occurrences during and after the departure of the burglar or burglars from the apartment building and that therefore there was no direct evidence of the guilt of the defendants and therefore that it was error to refuse the tendered instruction. Here, the proof was that the officers were approximately 20 feet from the doorway of the burglarized house when they saw the defendants emerge from the apartment. Under these circumstances we cannot say that the proof was entirely circumstantial. The trial court exercised sound discretion in refusing the instruction.

We also find no error in the court’s refusal of Defendants’ Instruction No. 2. In substance, this was an instruction that the testimony of law enforcement officers is not entitled to be given greater weight merely because they are officers but that their testimony should be weighed and considered the same as in the case of the testimony of other witnesses. There was no issue as to the weight of testimony for the jury to consider since the officers were the only witnesses to testify at the trial. Moreover, the court gave People’s Instruction No. 2 (I.P.I. Criminal 1.02) which made the jury the sole judges of the credibility of the witnesses and of the weight to be given to the testimony and instructed them to take into account any interest, bias or prejudice that a witness may have and the reasonableness of his testimony. The jury was properly instructed.

The judgments of conviction are therefore affirmed.

Judgments affirmed.

ABRAHAMSON and MORAN, JJ., concur.


author: Mr. JUSTICE ABRAPIAMSON

text:
      In re Estate of Bernice Dillon Montgomery, Deceased — (Earl L. Montgomery, Admr., Petitioner-Appellant, v. Andrice F. Michaels, et al., Respondents-Appellees.)
    (No. 71-51;
    Second District
    — January 10, 1972.

      Ross S. Welch, of Chicago, for appellant.
    Hall, Meyer, Fisher, Holmberg, Snook & May, of Waukegan, for appellee.
   Mr. JUSTICE ABRAPIAMSON

delivered the opinion of the court:

This appeal is prosecuted from an order entered February 18, 1971, by the Circuit Court of Lake County that dismissed the appellant’s petition to discover and recover certain assets brought by him as administrator of the estate of his deceased wife, Bernice Dillon Montgomery and individually prasuant to Section 183 of the Probate Act (Ill. Rev. Stat., 1969, ch. 3, sec. 183)

On September 1, 1970, Letters of Administration were issued to Earl L. Montgomery, the appellant, in the estate of his deceased wife. On September 10, Montgomery petitioned the court for issuance of citations on the First National Bank of Chicago and the First National Bank of Highland Park relative to certain savings accounts established at those institutions by the decedent in her name as trustee for the benefit of Andrice Fleming Michaels and Robert Dillon Fleming, her children by a prior marriage. Citation writs and summons were issued pursuant to the petition and a hearing held on November 5, 1970.

The passbooks, ledger sheets and signature cards of the particular accounts were admitted into evidence on the stipulation of the parties. Those records indicate that four separate accounts had been established at the First National Bank of Chicago, each in the name of Bernice Dillon Montgomery as Trustee. Two of those accounts, in the aggregate amount of $16,552.15, provided on the signature card that the deposits in the account were made for the benefit of Andrice Fleming Michaels “to whom or to whose legal representative said deposits or any part thereof, together with the interest thereon, may be paid in the event of the death of the . . . trustee.” The two other accounts at the First National in Chicago, in the same amount, provided that they were for the benefit of Robert Dillon Fleming with identical provisions in regard to payment after the death of the trustee.

Two of the accounts at the First National Bank of Highland Park, each in the amount of $6,033.74, were in the name of the decedent as trustee for the benefit of, and payable on her death to, Andrice Michaels and Robert Fleming respectively. The last two accounts, also at the Highland Park bank, were each in the amount of $8,822.98 and in the name of the decedent as trustee for the two children but with no specific provision as to payment after her death.

In his petition, the appellant alleged that the trusts were “illusory and invalid” since his wife had full control over the accounts during her lifetime and possessed all the incidents of complete ownership including the right to withdraw all of the funds deposited at any time. He further alleged that the trusts constituted virtually all of his wife’s assets and were a fraud on his marital rights and that he should be accorded the same rights to the accounts that he would have if they were held in her own name.

At the conclusion of the hearing, the trial court took the matter under advisement and then entered the order from which this appeal was taken. That order found that the trusts were not illusory and ordered the two banks to pay the funeral bills of the decedent and distribute the balance of the proceeds to the named beneficiaries.

The Supreme Court, in 1965, ruled that “Totten” trusts (so-called from the case of Matter of Totten, 179 N.Y. 112, 71 N.E. 748) were valid in Illinois in the case of In re Estate of Petralia (32 Ill.2d 134). In that case, Antonio Petralia opened a savings account on November 8, 1948 at the First National Bank of Chicago as trustee for the benefit of his daughter, Domenica DiMaggio. The signature card provided:

“All deposits in this account are made for the benefit of Domenica DiMaggio.
To whom or to whose legal representative said deposits or any part thereof, together with the interest thereon, may be paid in the event of the death of the undersigned Trustee.”

The evidence showed that Petralia kept the savings account passbook in his possession and made deposits and withdrawals from the account during his lifetime. The administrator of his estate contended that the mere execution of the signature card was insufficient to create a valid trust and that Petralia had attempted to make a testamentary disposition of the account without conforming to the statute of wills. The Supreme Court rejected that contention and said as follows:

“It is true that Antonio Petralia, as settlor and trustee, retained extensive control over the savings account trust which he established. However, in this respect it is not significantly different in substance from other revocable inter vivos trusts which have been held valid in this and other jurisdictions, (citations omitted). The nature of the beneficiary’s present interest under such trusts is well stated in I Scott, The Law of Trusts, 353-354:
‘The declaration of trust immediately creates an equitable interest in the beneficiaries although the enjoyment of the interest is postponed until the death of the settlor, and although the interest may be divested by the exercise of the power of revocation.’ The fact that the beneficiary’s actual enjoyment of the trust is contingent on Antonio Petralia’s death without first having revoked the trust by withdrawing the balance in the account does not negate the existence of a present interest in the plaintiff during her father’s lifetime, even though that interest may have been highly destructible.
We conclude that the instrument executed by Antonio Petralia on November 8, 1948, was sufficient to create a valid and enforceable inter vivos savings account trust. In so holding we accept the position adopted by the American Law Institute in Sec. 58 of the Restatement (Second) of Trusts: ‘Where a person makes a deposit in a savings account in a bank or other savings organization in his own name as trustee for another person intending to reserve a power to withdraw the whole or any part of the deposit at any time during his lifetime and to use as his own whatever he may withdraw, or otherwise to revoke the trust, the intended trust is enforceable by the beneficiary upon the death of the depositor as to any part remaining on deposit on his death if he has not revoked the trust.’ ”

The language of the signature cards in the Petralia case is identical to that used in the four accounts established at the First National Bank of Chicago by Bernice Montgomery. Although the accounts in Highland Park did not employ the same wording, we feel that there was sufficient evidence to show that those accounts were intended to create a savings account trust as described by the American Law Institute. In view of the Petralia case and other earlier decisions, we feel that these records evidenced the creation of valid inter vivos trusts even though the settlor was the trustee and retained the right to withdraw all of the funds from the account at any time prior to her death. The beneficiaries of those accounts, the children, did acquire a present equitable interest in the accounts even though that interest was postponed until the death of the trustee and was subject to divestment prior to that event. In re Estate of Petralia, 32 Ill.2d 134, 137; Farkas v. Williams, 5 Ill.2d 417, 433.

We must next consider if a savings account trust can be effective to deprive a surviving spouse of his marital rights of inheritance. Generally, a spouse may dispose of property during his or her lifetime, and thus deprive the survivor of a right of inheritance, unless the diposition is colorable, illusory and “tantamount to fraud”. Holmes v. Mims, 1 Ill.2d 274, 279; Padfield v. Padfield, 78 Ill. 16, 19.

In the case of Smith v. Northern Trust Co. (322 Ill.App. 168), cited by the appellant, the husband, Elmo Smith, transferred virtually all of his property into trust. Under the provisions of the trust agreement, Smith was to receive all the income for life with 80% of the corpus to be distributed to his children from his first marriage upon his death and the balance to his wife. He later amended the trust and left all of the trust balance to his children. Smith also reserved the right to supervise the investment of the trust assets and to amend or revoke the agreement at any time. Smith died in 1942 and left assets insufficient to pay the expenses of his estate. His widow brought suit against the trustee and the beneficiaries claiming that the trust was a device to defraud her of her rights as a surviving spouse and that the beneficiaries took advantage of Smith’s advanced years to sign the agreement on the basis of misrepresentations. The court of review held that the trust was, under the circumstances, merely colorable and illusory and invalid as to the rights of the widow to share in his estate.

The form of the agreement does not, however, per se constitute a trust illusory or colorable and a fraud on the marital rights of a surviving spouse. Burnet v. First Nat. Bank, 12 Ill.App.2d 514, 527. Hence, the mere creation of the savings account trusts by Bernice Montgomery during her lifetime did not, of itself, constitute a fraud on the appellant. “Whether the form of trust employed is merely colorable and illusory, and a fraud upon the marital rights of the spouse, must be determined from the particular facts in each case.” Burnet v. First National Bank, 12 Ill.App.2d 514, 528.

There were only two witnesses to testify at the citation hearing before the trial court. A trust officer of the Highland Park bank testified relative to the accounts held by them. The appellant himself testified that he was married to the decedent for 27 years prior to her death on June 27, 1970. He further testified that he was not aware of the existence of the savings accounts until he discovered the passbook in the basement of the marital home after the death of his wife and that those accounts were virtually all of her property. No other proof was offered.

We do not feel that the failure to disclose the existence of the trusts to the appellant constitutes, of itself, sufficient evidence to show that they were tantamount to fraud or invalid as to his rights of inheritance. In the recent case of Dennis v. Dennis, 271 N.E.2d 55, the husband transferred various assets owned by him (but not all) into trust shortly before his marriage for the ultimate benefit of the children of his first marriage. His wife was unaware of the existence of the trust until after his death and the court, in upholding the validity of the trust, stated on page 60 that “* * * there was no duty to disclose the trust or amendment to her either before or after marriage, and consequently plaintiff’s complaint contains no sufficient allegations of specific facts or circumstances indicative of fraud * *

The appellant has cited numerous cases from other jurisdictions contrary to the position that we have adopted in this case. However, we feel that the law in Illinois is clear that a bank deposit trust is, absent evidence that it is illusory or tainted with fraud, effective even against the claim of a surviving spouse.

We conclude that the savings account trusts established by Bernice Montgomery during her lifetime were valid inter vivos trusts and that there was no evidence to show that they were either colorable or illusory. Therefore, the judgment order of the trial court will be affirmed.

Judgment affirmed.

SEIDENFELD and GUILD, JJ., concur.


author: Mr. JUSTICE ABRAHAMSON

text:
    The Village of Lombard, Plaintiff-Appellant, v. Phillip Jacobs, a minor, Defendant-Appellee.
    (No. 71-69;
    Second District
    — January 10, 1972.

      Rehearing denied February 10, 1972.

      Peregrine, Stime & Henninger, of Wheaton, for appellant.
    Gates W. Clancy and James Mills, both of Geneva, for appellee.
   Mr. JUSTICE ABRAHAMSON

delivered the opinion of the court:

In this action for indemnity by one tortfeasor against another, judgment was entered for the defendant on his motion to dismiss the complaint. The parties to this case were co-defendants with others in an action brought by Clifford Cundiff, plaintiff against Phillip Jacobs, a minor, Wayne Kulie, Clarke Outdoor Spraying Co., Inc., hereinafter referred to as Clarke, and the Village of Lombard.

Cundiff’s complaint consisted of four counts. Count I alleged that on the 18th day of October, 1965, at about 9:30 p.m., the defendant, Jacobs, a minor, was driving a car and was proceeding in a westerly direction upon North Avenue in Lombard, in the interior westbound lane; that at that time the plaintiff was driving an automobile in a westerly direction upon the exterior westbound lane of North Avenue; that the plaintiff was in the exercise of due care and that the defendant, Jacobs, operated his automobile in a negligent manner so that it left the interior westbound lane of North Avenue, crossed over into the exterior westbound lane and upon and against the rear of the automobile driven by the plaintiff, thereby causing damage to the plaintiff’s vehicle and permanent injuries to the plaintiff.

Count II alleged that the defendant, Kulie, was driving an automobile in an easterly direction upon North Avenue in the interior eastbound lane, and that Kulie negligently caused his automobile to leave the interior eastbound lane of North Avenue, cross the center line, and go into the lane in which Jacobs was proceeding, thereby causing Jacobs to cross over into the exterior westbound lane and hit the rear of the car driven by the plaintiff.

Count III was against Clarke and alleged that, at the time and place of the collision, Clarke had one of its insecticide fogging trucks near the scene of the accident and as the truck proceeded in a westerly direction on the south shoulder of North Avenue, it disseminated large, dense clouds of foggy insecticide which formed a huge cloud several hundred feet in length across North Avenue; that said cloud hung over the point where the automobile of Kulie crossed the center line on North Avenue, as alleged, and where the automobile of the plaintiff, Cundiff, was struck in the rear by the automobile driven by Jacobs; that the dissemination of the insecticide was an eminently and inherently dangerous activity, particularly when carried out on a busy thoroughfare in the dark of night; that Clarke had the duty of exercising ordinary care in the dissemination of the insecticide, but notwithstanding that duty Clarke negligently and carelessly committed one or more of the following acts or omissions: a) disseminated said insecticide in a fog form on a busy thoroughfare; b) failed to provide any warning of the dangerous condition created; c) failed to provide warning lights and signs that the insecticide was being disseminated in the area; and d) operated the fogging equipment on said insecticide truck so as to cause a dense and impenetrable fog, obscuring the roadway of North Avenue and the passage of vehicles to and into said fog bank. That count concludes with the allegation that as a direct and proximate result of the negligence described, the plaintiff sustained permanent injuries.

The final count, Count IV, alleged that the defendant, Lombard, engaged Clarke as its agent, servant and employee to operate an insecticide fogging truck in the village; realleged the acts of fogging performed by Clarke in the vicinity of the accident and the creation of the cloud of fog which hung over the point of the collision and in the general vicinity thereof; stated that the dissemination of the insecticide was a nondelegable activity of Lombard, particularly when being carried out on a busy thoroughfare and in the dark; that notwithstanding its duty to exercise ordinary care for the safety of the plaintiff, Lombard, by its agent and servant, Clarke, negligently disseminated the insecticide fog and was otherwise negligent as alleged in Count III. This count concluded that as a direct and proximate result of the negligence of Lombard by its employee and agent, Clarke, the plaintiff was permanently damaged.

The jury rendered a verdict in favor of the plaintiff, Cundiff, and against all the defendants in the amount of $10,000 and costs. This action for indemnity by Lombard, as plaintiff, against Philip Jacobs, a minor, foHowed.

The complaint of Lombard recites the filing of the complaint herein-above referred to by the plaintiff, Cundiff, against Lombard and other defendants; states that a trial of the issues concluded with a jury verdict against aU defendants in the amount of $10,000, plus costs; that Lombard was required to pay $6,666.67, plus costs, to Cundiff, for which it received a release of judgment; that the evidence on trial showed that Jacobs collided with the rear end of a vehicle driven by Cundiff as alleged, and further showed that Lombard engaged an independent contractor, Clarke, to fog for mosquitoes, and that the mosquito fog from a vehicle operated by Clarke had drifted at or near the place of coHision; that the jury found Jacobs guilty in one or more of five ways he negligently drove his vehicle; and that every allegation of negligence pertained to the affirmative and active conduct of Jacobs in the operation of his vehicle. The complaint continues by aHeging that Lombard was found guilty of negligence as set forth in an instruction submitted to the jury, charging that Lombard: a) permitted Clarke to disseminate the insecticide without any warning to appraise oncoming vehicles of the dangerous conditions, b) permitted Clarke to operate its fogging equipment so as to cause a dense and impenetrable fog obscuring the roadway and passage of vehicles to and into said fog bank, and c) faffed to guard each end of the fog bank with police department vehicles; that each of the charges of negligence on the part of Lombard pertain to passive or secondary conduct arising from the nondelegable duty the law places on municipalities to keep its roadways in a safe condition; that Lombard was only secondarily and passively negligent with respect to the coHision between Jacobs and Cundiff, and is only secondarily liable because Jacobs’ affirmative conduct continued up to the moment of collision and he had the last clear chance to prevent injury to Cundiff, whereas Lombard had not engaged in any affirmative conduct contributing to the injury of Cundiff. The complaint concludes with the assertion that the plaintiff is entitled to be indemnified and reimbursed by Jacobs in the amount it had paid, plus costs and attorney’s fees of $1,000.

The motion to dismiss filed by Jacobs alleges that the complaint does not state a cause of action recognizable under IHinois law; that the issues instructions submitted to the jury upon which a finding of guilty against Lombard was made presented issued resolved against Lombard and which on their face involved acts of active negligent conduct, contrary to the allegations in Lombard’s complaint with reference to alleged passive negligent conduct; that the complaint is, in effect, a suit for contribution and not for indemnity, and as such states no cause of action against defendant Jacobs. Thereafter, an order was entered dismissing the complaint and this appeal followed.

It is the theory of Lombard, plaintiff herein, that, where a judgment for personal injuries is rendered against a municipality, based solely on its nondelegable duty to maintain roadways in a safe condition, the municipality has a right of indemnification from a party whose act of wrongdoing causes the injury. Jacob states that the complaint alleges a claim of contribution and not for indemnity, and therefore states no cause of action as there is no duty on one active tortfeasor to indemnify another active tortfeasor under Illinois law.

Illinois cases have reiterated the rale that there is no contribution among tortfeasors, but most of these cases have qualified that rale by saying that where one does the act which produces the injury, and the other does not join in the act but is thereby exposed to liability and suffers damage, the latter may recover against the principal delinquent, and the law will inquire into the real delinquency and place the ultimate liability upon him whose fault was the primary cause of the injury. The general rale is stated in Griffiths & Son Co. v. Fireproofing Co., 310 Ill. 331, 339. However, in the Griffiths case, at page 340 the court noted that whether an action for indemnity could be maintained, for the same kind of liability which rests upon a municipality, against the person actually causing the injury by his negligence as the proximate cause, in the absence of a contract, was not to be decided as there was an indemnification contract between the parties. In Reynolds v. Illinois Bell Tel. Co., 51 Ill.App.2d 334, 337, the court noted that in Griffiths a contract of indemnity was involved but said that it was adopting the statement by the Supreme Court in the Griffiths case that indemnity may be obtained on tort principles and that a contract is not required. The court also stated that the statement was dictum but it had been followed in many cases which were cited. In that case, Reynolds, a minor, sued the defendants, Illinois Bell Tel. Co., and two of its employees, for personal injuries resulting from the alleged negligent act of Illinois Bell Tel. Co. in parking its vehicle. The defendants filed a third-party complaint against an Eleanor Miller, who had actually struck the plaintiff who was a pedestrian in a crosswalk. Miller had previously settled with plaintiff by a covenant not to sue. The court, in Reynolds, reversed the judgment of the trial court which dismissed the third-party action against Miller, and held that the third-party complaint stated a cause of action for indemnity. There the court, at page 339, also commented on the purpose of third-party practice and stated that it was “to avoid a wastefully inefficient multiplicity of suits by combining into a single action all claims arising from one transaction.” In our case, no third-party complaint was filed in the original action, and the complaint for indemnification was filed after judgment was rendered against the defendants and after Lombard had paid two-thirds of the judgment amount. No special interrogatories were presented to the jury in the original action. It is interesting to note that in the Reynolds case the court, on rehearing, stated that neither the recognition of a right of indemnity nor of a right of contribution rests upon comparative negligence.

Four of the cases which trace and analyze the numerous classifications, arising by virtue of different factual situations that give rise to the remedy of indemnification, are Muhlbauer v. Kruzel, 39 Ill.2d 226; Mullins v. Crystal Lake Park Dist., 129 Ill.App.2d 228; Sargent v. Interstate Bakeries, Inc., 86 Ill.App.2d 187; and Spivack v. Hara, 69 Ill.App.2d 22. In Muhlbauer, at pages 231 and 232, it was stated: “* * * a third-party complaint must disclose some relationship upon which a duty to indemnify may be predicated,” and upheld a dismissal of a third-party complaint in the trial court, as the only allegations regarding indemnity in the third-party complaint were hypothetical assertions and only the pleaders conclusion as to legal characterizations without any facts to support such a conclusion. The court indicated that facts might have been alleged from which it would be possible to discern a potential relationship that would support a duty to indemnify. However, the court did strongly indicate that there would be no indemnification between two tortfeasors, even where one is passive and the other active, if they were complete strangers.

In the Spivack case, it was pointed out that, to combat the harshness of a rule prohibiting contribution among tortfeasors in all cases, the Illinois courts have developed certain exceptions wherein indemnity is allowed and stated the usual case, in which the exception is allowed, involves a specific relationship where the defendant incurring derivative liability has neither participated in the wrongful act nor known of the condition which caused the injury. An example of this is the case of Maroni v. Intrusion Prepakt, Inc., 24 Ill.App.2d 534, where it was held that an owner, who had been held liable under the Scaffold Act, could successfully sue for indemnity from the contractor whose employee was injured by the contractors negligence and where the owner had no knowledge of the defective equipment. There, in Maroni, the court followed the general principle that “the rule against indemnity between tortfeasors does not apply between parties, one of whom is the active and primary wrongdoer and the other bears a passive relationship to the cause of the injury.” In Spivack, a defendant, who was found guilty of negligent operation of his automobile in an automobile accident, was held not to meet the standard of passivity necessary for indemnification from a second tortfeasor who was found guilty of wilfully and wantonly operating his automobile and who was involved in the same accident. The court there stated that the finding of tire jury does not suggest conduct substantially more culpable on the part of the driver guilty of wilful and wanton misconduct than on the part of the driver found guilty of ordinary negligence. In Spivack, it was noted that in Gulf, M. & O. R. Co. v. Arthur Dixon Transfer Co., 343 Ill.App. 148, indemnity was introduced into a factual situation different from owner-contractor cases, and that the court, in Dixon, reiterated the active-passive distinction where derivative liability was involved but did not limit its application to instances where there was no participation by the indemnitee. In the Sargent case herein referred to, it was argued that if the Reynolds case is followed, a negligent defendant can be completely relieved of liability if he can find another defendant who was more negligent and the filing of third-party complaints would be encouraged by the attempts to shift liability from one defendant to another. The court, in Sargent, stated that it is true that the Reynolds decision did add a further dimension to the right of one negligent tortfeasor to recover from another as the requirement of cases prior to Reynolds was that the defendant from whom indemnity was sought, and the defendant who was seeking indemnity, had to have some community of interest in their relationship to the plaintiff which antedated the liability-creating incident. The court, in Sargent, discussed several classes of cases and noted that, when the courts had the question before them of the right to contribution, the decision tended to support a conclusion that tha law does permit contribution between negligent tortfeasors. The conclusion was that our courts now permit one tortfeasor to recover from another if there is a qualitative distinction between the negligence of the two. In the Mullins case, this court pointed out that, in the Muhlbauer case, the pleadings were dismissed for failure to allege any relationship or circumstances connecting the parties, and that the Supreme Court in that case observed the doctrine of implied indemnity and said it existed if a potential relationship between the parties is pleaded and the liability of one party is primary and the other is secondary. In Midlins, we stated that the relationship or circumstances between the parties was sufficient upon which to predicate an action for indemnity.

In Miller v. DeWitt, 37 Ill.2d 273, there was a prior relationship upon which a duty to indemnify could be predicated, and therefore the Miller case does not involve the type of factual situation with which we are faced herein.

The language of the Supreme Court in Muhlbauer (a 1968 case) is clear, and unequivocably states that a third-party complaint (indemnification action) must disclose some relationship upon which the duty to indemnify may be predicated and indicates there can be no indemnification as between complete strangers. It has been previously noted that the Supreme Court in Muhlbauer held that the trial court had properly dismissed the third-party complaint because it only asserted the pleader’s conclusions as to legal characterizations, without any facts to support the conclusions.

The facts alleged by Lombard, the plaintiff, in its complaint against Jacobs, do not suggest that the two are not complete strangers but bear some relationship to each other, and do not justify the legal conclusion of the pleader that it is entitled to indemnification from Jacobs, the only defendant from whom indemnification is sought. Furthermore, it would appear that Lombard, in violation of a nondelegable duty, was found guilty by the jury, in accordance with the instructions on the law, of active negligence in the dissemination of the mosquito fog.

The only Illinois case involving mosquito fogging is King v. Mid-State Freight Lines, 6 Ill.App.2d 159. In that case, defendant Clarice, d/b/a Clarice Outdoor Spraying Company, was found guilty of negligence and judgment was entered against Clarke for personal injuries suffered by the plaintiff as a result of Clarke’s negligence, all other defendants having been found not guilty by verdict of the jury. That case involved a fogging operation and a collision between automobiles in the fog, resulting in injuries to the passenger of a car that was driven into the rear of a truck ahead. The appeal was from an order denying Clarke’s motion for judgment notwithstanding the verdict. The court held at page 170:

“We believe there is competent evidence, together with all reasonable inferences to be drawn therefrom, standing alone, taken with all its intendments most favorable to the plaintiff tending to prove that Stinson, in whose car the plaintiff was riding, drove his car into a created mosquito fog created at the time and place in question by Clarke in his mosquito control operation, which obscured his vision, and which proximately caused the injuries’ to the plaintiff when Stinson struck the rear of the truck ahead, * *

and said at page 177:

“Stinson’s driving the car on the highway, and, his vision being obscured by the fog, his running into the rear of the truck which had slowed down because of the same fog, is not an intervention of an independent, concurrent, force, breaking the casual connection, — or, if it were, the jury could find that it was probable and foreseeable by the decedent Clarke.”

thus concluding that there was no error in denying Clarke’s motion for judgment notwithstanding thé verdict. Although Clarke, in that case, was hired by the Village of Hinsdale (not named as defendant) and was required to exercise reasonable care to prevent injury to a person lawfully traveling the public highway, the same duty must apply to the municipality employing another to conduct a mosquito-fogging operation. Lombard concedes this is a nondelegable duty. Rather than Lombard being entitled to indemnification from Jacobs, Lombard owed a nondelegable duty to Jacobs, and his contributory negligence was a question of fact resolved by the jury.

For the reason stated, the complaint does not state a cause of action, and the judgment entered by the Circuit Court of Du Page County, dismissing the complaint, is affirmed.

Judgment affirmed.

MORAN, P. J., and SEIDENFELD, J., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Roger Slaughter, a/k/a Clarence Slaughter, Defendant-Appellant.
    (No. 70-177;
    Second District
    — January 11, 1972.

      Edwin L. Gouglas, of Defender Project, of Wheaton, (Frank Wesolowski, Jr. and Robert H. Heise, of counsel,) for appellant.
    William V. Hopf, State’s Attorney, of Wheaton, Malcolm F. Smith, Assistant State’s Attorney, of counsel,) for the People.
   Mr. PRESIDING JUSTICE SEIDENFELD

delivered the opinion of the court:

The defendant, Roger C. Slaughter, a/k/a Clarence Slaughter, after a jury trial, was convicted of Burglary alleged in the indictment to have occurred on or about June 11th, 1969.

He urges that the evidence against him was wholly circumstantial and that he was not proven guilty beyond a reasonable doubt. He also claims that trial errors deprived him of a fair trial.

The charge against defendant arose as an aftermath of the service of a warrant on one Demaris Sears who lived with Slaughter. The police went to their apartment on June 17th, 1969 with a warrant for Demaris Sears’ arrest on a check forgery charge. After Demaris was taken away, defendant stated that he wanted to go to the police station to be with her but would take a shower first. While defendant was in the bathroom an officer heard the noise of the top of the toilet tank moving, and upon examination of the water tank found seven payroll checks which, upon investigation, were shown to be part of some 83 checks reported missing from the Fireside Engineering Company.

There was testimony that defendant had previously been employed by the Fireside Engineering Company as a clean-up and maintenance man for a period of six months terminating in January of 1969; and that earlier on the day of the alleged June 11th burglary, defendant had been at the Fireside office to discuss painting of the building. Neither Korona, who was the president of the Fireside Engineering Company, nor the bookkeeper, Lavergne Blindt, were able to establish the date the checks were taken. Mrs. Blindt testified that they first looked for missing checks following a call from a police officer some days after June 11th. There had been a prior break-in on May 21st, as well as two earlier break-ins. No investigation had been made after prior break-ins to see if checks were missing. The blank payroll checks were kept in an office cabinet, loosely, in a box supplied by the bank with the printed checks. The missing checks began with those numbering in the “8400” series with intermittent numbers being found missing in that series and in the “9000” numbered series. Mrs. Blindt testified that the checks being written by the company at the time of the June break-in were “Say around 8400 some”. While Mrs. Blindt testified that the checks were used in numerical order and said “* * * and we keep a record”, there was no further explanation of the record kept nor was any such document offered.

There was testimony that the checks recovered from the water tank (People’s Collective Exhibit #1) were in the “9000” series.

A check numbered 9040 dated June 12th, 1969, was introduced as People’s Exhibit #2 supported by testimony that it had been cashed by one Kathleen Louden, the sister of the defendant, at a grocery store in the neighborhood of defendant’s apartment. The testimony of the store clerk was that she did not know whether it had been cashed before or after the date of the burglary.

Demaris Sears testified that she was given the checks comprising People’s Group Exhibit #1 on June 17th, 1969, by defendant’s brother-in-law, Jim Louden, for the purpose of typing names thereon. She also testified that she cashed a Fireside Company check (People’s Exhibit #5, Check 9053) on June 14th, 1969, and that she had received it earlier that morning from Jim Louden. She said that the defendant, to the best of her knowledge, did not know that Jim Louden had given her the checks.

On cross-examination of one of the police officers, defendant’s counsel identified a copy of a check marked Defendant’s Exhibit 2 for identification as Check No. 8472. On re-direct examination the State identified the check as People’s Exhibit #3 and established that it was dated May 22nd, 1969. The check bore a Clearing House stamp of June 10, 1969.

On this testimony, defendant argues that it is mere conjecture whether People’s Group Exhibit #1 was taken in the June 11th burglary for which the defendant was indicted. He argues that the fact that another stolen Fireside Engineering check No. 8472 was cashed by some other person prior to June 11th, 1969, and had a Clearing House stamp with date of June 10th on its back, clearly established that the check was in circulation before the June 11th burglary. Thus, defendant argues that the State’s assumption that the checks found in defendant’s possession were taken at the June 11th burglary is not credible and that it is a reasonable hypothesis that whoever took Check 8472 also took those included in People’s Group Exhibit #1. Defendant also argues that the unrefuted testimony of Demaris Sears supports this view.

The jury was not required to believe the testimony of Demaris Sears as to the origin of the checks and apparently did not. However, a more serious question, we believe, is whether the possession of the checks (Plaintiff’s Exhibit #1) by the defendant under the circumstances presented was sufficient to prove beyond a reasonable doubt that defendant committed the burglary for which he was charged. It is a familiar rule that exclusive possession of recently stolen goods, unexplained, is evidence of larceny; and if at the time the articles were stolen burglary was committed, that such possession is also evidence of burglary. (The People v. Hein (1924), 315 Ill. 76, 81.) In almost every case which has come to our attention in which this rule has been applied, there was no doubt that the property had been taken at the time of a particular burglary charged. In this case there was evidence of several previous break-ins and there was no satisfactory proof that the particular items were taken at the time of the June 11th burglary.

We have found a somewhat similar case, People v. Moore (1966), 76 Ill.App.2d 326, 331. Moore argued that there had been burglaries on other occasions so that his possession of stolen checks was not sufficient proof that they were taken in the burglary of which he was convicted. In affirming the conviction, the court noted that there was no evidence that checks had been taken in the other break-ins and that the owner had testified that the particular checks found in defendant’s possession were the same as those taken in the burglary charged. This last finding distinguishes the cases. Here, neither the owner nor his bookkeeper could state that the checks were taken in the June 11th burglary. Defendant’s possession of the checks may well have been relevant evidence of his involvement in some crime, but the wholly circumstantial evidence was insufficient to prove that the particular crime charged had been committed by defendant. The entire record leaves us with a serious doubt that the defendant was proven guilty of the June 11th burglary beyond a reasonable doubt and tire conviction cannot stand. (See The People v. Hooper (1936), 364 Ill. 320, 325; The People v. Johnson (1964), 31 Ill.2d 321, 324.) The judgment is reversed. See The People v. Butler (1963), 28 Ill.2d 88, 92.

Judgment reversed.

ABRAHAMSON and MORAN, JJ., concur.