text:
      In re ESTATE OF ADOLPH FANTOZZI (Lena Fantozzi, Adm’r, Petitioner-Appellant, v. Lake View Trust and Savings Bank, Respondent-Appellee).
    First District (4th Division)
    No. 1—88—1484
    Opinion filed May 18, 1989.

      Wahler, Pecyna & Fleming, of Chicago, for appellant.
    Tishler & Wald, Ltd., of Chicago, for appellee.
   JUSTICE LINN

delivered the opinion of the court:

Lena Fantozzi, the administrator of her husband’s estate, filed a citation to recover assets from Lake View Trust & Savings Bank. Her claim was premised on her discovery of a passbook among her husband’s effects, 24 years after his death. The passbook showed a balance of $35,605.13 in an account presumably opened by her late husband. The trial court denied Fantozzi’s petition for citation to recover assets.

On appeal, Fantozzi argues that the trial court erred in applying the rule that the law presumes payment of a debt that has been due and unclaimed for 20 years; the 20-year period had not run in any event; the court erred in ruling that the bank’s records need be preserved for only three years; and the court erred in holding that Fantozzi had failed to establish her cause of action.

We affirm the trial court.

Background

In 1983 Fantozzi discovered a Lake View Trust & Savings Bank passbook when she was cleaning out an attic where her husband, Adolph, had stored his business and personal papers. The passbook showed an account number but listed no name. It showed a balance of more than $35,000 as of May 31, 1958, the date of the last entry. Fantozzi’s husband died on May 2,1959.

Lake View checked its records when Fantozzi presented the passbook, but found no evidence that the passbook was an open account. Lake View told Fantozzi to check with the Illinois Department of Financial Institutions, since under State law Lake View could not hold funds in an inactive account for more than 15 years but would have been required to turn them over to the Department. See Ill. Rev. Stat. 1983, ch. 141, par. 101.

The Department had no record that Lake View had turned over the account. Fantozzi then brought the instant citation proceeding in the probate court.

At trial, three witnesses testified. Fantozzi stated that she had no knowledge of her husband’s income and that she had not known of the existence of the passbook account during her 12 years of marriage to Adolph. She had not searched through her husband’s belongings after his death. She knew her husband had owned real estate but knew little about his actual income.

Fantozzi further testified that she and her husband had maintained a safety deposit box and a checking account at Lake View, both of which were released to her after his death. She testified that in 1959 they had purchased a house in Herrin, Illinois, for $14,000 in cash and had built an addition to it. She admitted that she did not know whether her husband had withdrawn funds from the passbook account between the date of the last deposit on May 31, 1958, and his death in May of 1959. She ássumed that the passbook belonged to her husband because she found it among his possessions in the attic and no one else had access to the attic.

Robert Rybka, vice-president in charge of operations at Lake View, testified regarding the bank’s record-keeping procedures. He had been employed since 1964. Until 1970, Lake View had maintained a dual system, using both hand-posted ledger entries and key-punched computer entries. The original, official savings account records were kept after being hand posted into the ledger book after each transaction. After 1970, however, Lake View went fully “on-line” and kept only the computer-generated records.

Rybka testified that prior to 1970 manual entries were used for each savings account. He could find no ledger sheet for the account in question, although he had searched through the bank’s oldest records, including an abandoned property report. Nor could he find the passbook number on the earliest computer interest run that he could find, dated December 27, 1962. He concluded from this that the account had been closed prior to the 1962 computer interest run because the passbook number did not appear thereon.

Mary Marcquenski, an employee of Lake View from 1953 to 1965, testified that Lake View used a ledger book with entries for every customer who had an account in the savings department. When the bank began using computer records, in 1959 or 1960, the ledger book was still used for a time, and in 1962 the handwritten entries in the book were compared to the computer run each day.

She further testified that if a depositor lost his passbook and wished to withdraw money from his account, he would be required to execute a lost passbook affidavit, which would then be stored in a vault with the closed ledger sheet. If someone later came in with the lost passbook, Lake View would have the affidavit to establish that the money had been paid out.

The procedure used in 1958 and 1959 would have been to freeze Adolph Fantozzi’s ledger page in the book upon notice of his death, if the account were still open. Notice of his death would have been given to all departments. A pink card would have been put on the ledger page and would have remained there until the Attorney General’s office, inheritance tax division, released the account to the decedent’s representative. Based on her knowledge of bank procedures, her experience with Lake View, the absence of the passbook account number on the 1962 computer ran and Mr. Fantozzi’s death in May 1959, Ms. Marcquenski believed that the passbook was closed prior to Mr. Fantozzi’s death.

Opinion

I

Fantozzi initially challenges the trial court’s application of the assumption that a debt which has been due and unclaimed by the creditor and unacknowledged by the debtor for more than 20 years has been paid, absent evidence to the contrary. (Fagan v. Bach (1912), 253 Ill. 588, 97 N.E. 1087.) She contends that she presented sufficient explanatory evidence to rebut the presumption.

Fantozzi’s explanation as to why a demand had not been made until 24 years after her husband’s death is that she had not discovered the passbook and was unaware of its existence until 1983. Accordingly, she argues, she had no earlier opportunity to demand payment, sue, or otherwise enforce payment.

Fantozzi’s argument does not answer the main problem she faces: whether her mere possession of the passbook, coupled with the absence of an affidavit of lost passbook or other evidence of payment, amounts to sufficient evidence to rebut the presumption of payment. We find that it cannot.

In the pending case, the court did not apply a bare presumption without considering the evidence. In fact, the court noted at the close of her case that she had presented a prima facie claim and accordingly denied the bank’s motion for directed finding. The record indicates, however, that two witnesses testified regarding bank procedures and that their testimony supports the trial court’s determination that the debt had been paid before Adolph Fantozzi’s death. This circumstantial evidence includes the probability that an open account would have appeared on the computer run of 1962, which was at the time cross-checked by the hand-written ledger entries. Moreover, the fact that a Lake View checking account and safety deposit box in Adolph’s name were frozen at the time of his death supports the inference that any other account in Adolph’s name would have been discovered at the same time, since notice of a depositor’s death went to all departments of the bank. Finally, under the Uniform Disposition of Unclaimed Property Act (Ill. Rev. Stat. 1961, ch. 141, par. 101), an inactive passbook would not have remained at Lake View for more than 15 years because State law requires the payment of such accounts to the Director of the Illinois Department of Financial Institutions.

Fantozzi’s claim is based on her possession of the passbook, which is insufficient by itself to establish the right to withdraw funds shown deposited in the book. (See American Union Financial Corp. v. University National Bank (1976), 44 Ill. App. 3d 566, 358 N.E.2d 646.) In this case, especially given the amount of time that has passed, we believe that Fantozzi would have had to present much stronger evidence to rebut the presumption and prove her claim. She admits that her husband purchased a home in 1959 for $14,000 in cash and that she did not know the source of his income. She had no knowledge of the passbook account until her discovery of the passbook 24 years after her husband’s death. She had no way of knowing whether he withdrew the money before his death or even if the funds belonged to him personally.

The mere fact that Lake View did not have a lost passbook affidavit among its records does not prove her claim. The bank had no record of the account at all. The general records it did have tend to support the inference that the account was not open at the time Adolph died, since an open account presumably would have appeared on the 1962 computer interest run. Even assuming that the account was still open at the time of Adolph’s death, and that somehow this account escaped notice when the safety deposit box and checking account were released, at some point the account would have been turned over to the State as an inactive account.

The trial court heard the evidence, drew inferences from the testimony and records presented, and resolved the matter in favor of Lake View. We will not overturn the trial court’s findings because they are not contrary to the manifest weight of the evidence.

II

Fantozzi also maintains that even if the 20-year period applies, it should not have begun to run until the demand for payment was made. She argues that the 20-year period cannot be applied against the decedent-depositor because he died 11 months after his last deposit. The bank’s bylaws provide that after the lapse of 10 years without activity in the account, the bank is not obligated to pay interest, a fact that Fantozzi suggests bears some significance on when the 20-year period begins to run. She concludes that it was her demand in 1983 that began the running of the 20-year period.

Contrary to Fantozzi’s assertion that Adolph’s death prevented the commencement of the 20-year period as against him, we believe that the date of death is key to the running of the 20-year period. As of May 1959, when he died, Adolph could no longer make a demand on the bank for payment, assuming the account was still open at the time. Accordingly, the bank would have been obligated to release the account to the administrator of Adolph’s estate, his wife, who was also his sole heir. This is what the bank did with the safety deposit box and checking account, upon proof of Adolph’s death and the widow’s heirship. Had Fantozzi thoroughly searched through Adolph’s papers in connection with her duties as administrator, she probably would have discovered the passbook within a short time of his death. Then it would have been a simple matter to verify whether or not the account had in fact been paid out.

Twenty-four years later it is not so simple. Records are lost or destroyed. In any event, we are not persuaded to create a “discovery” rule of such magnitude as would circumvent the requirement that claims be brought before they become stale. Fantozzi’s evidence did not rebut the presumption of payment; even if we determined that the presumption did not apply, however, her evidence was insufficient to prove her claim.

III

Because of our holding, we need not comment on the length of time that a bank should be required to keep records. We express no opinion on the applicability of the Uniform Preservation of Private Business Records Act (Ill. Rev. Stat. 1983, ch. 116, pars. 59, 60), which provides for a three-year period for the preservation of private business records. We do not believe, however, that Lake View had a duty to keep records of the passbook account for 24 years. The evidence indicated that the account had been closed before Adolph’s death. Therefore, we cannot agree that Lake View violated any contractual or statutory duties owed to Mrs. Fantozzi.

IV

Fantozzi’s final argument is that the court erred in finding that she did not establish her cause of action. Because this did not come up on appeal on a section 2 — 615 motion to dismiss (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 615), we are unsure of the significance of this issue. The court did not find that she had failed to state a prima facie case and in fact denied Lake View’s request for a directed finding at the close of her case. Presumably, Fantozzi’s argument is that the court’s findings were against the manifest weight of the evidence. We do not agree. The trial court heard the evidence, judged the credibility of the witnesses, and concluded that Fantozzi had failed to prove her claim. In so doing the court resolved all conflicts in the evidence. See Trident Industrial Products Corp. v. American National Bank & Trust Co. (1986), 149 Ill. App. 3d 857, 865, 501 N.E.2d 273.

For the foregoing reasons we affirm the judgment of the trial court.

Affirmed.

JIGANTI, P.J., and JOHNSON, J., concur.


source: Caselaw Access Project

author: JUSTICE COCCIA

license: Public Domain

text:
    RICHARD BROUSSARD et al., Plaintiffs-Appellees, v. HOUDAILLE INDUSTRIES, INC., et al., Defendants-Appellants.
    First District (5th Division)
    No. 1—87—1837
    Opinion filed May 19, 1989.

      Sidney Sherman and Jeffrey Dean Lewis, both of Chicago, for appellant Surty Manufacturing Co.
    Doyle & Ryan, Ltd., of Chicago (Thomas J. Fedick, of counsel), for appellees.
   JUSTICE COCCIA

delivered the opinion of the court:

This is an appeal from plaintiffs’ verdict in a products liability case, tried upon a strict liability theory, returned against Surty Manufacturing Co., manufacturer of a gate guard safety system. The jury returned a verdict in favor of Richard Broussard for injuries which he received while operating a press brake machine without the use of any safety device, and in favor of his wife for loss of her husband’s services.

The press brake was a multifunctional industrial machine, manufactured by the codefendant, Houdaille Industries, whom the jury found not responsible to Broussard. The press brake was equipped with a palm button safety device manufactured by others and with the Surty gate guard safety system, manufactured and installed by the Surty Manufacturing Co., appellant.

Surty asks this court to reverse the verdict and judgment entered below and assigns several errors in support thereof. As it is our opinion that this case must be reversed on the issue of proximate cause, we need not undertake a review of the additional alleged errors.

The evidence in this case brought out the following facts. In 1976, the Rock-Ola Company, Broussard’s employer, purchased a gate guard system from Surty. Surty manufactured the unit and installed it upon the press brake machine in October 1976. Broussard was injured in November 1977. The press brake was a multifunctional industrial machine used by Rock-Ola to form metal pieces. The gate guard was a plastic unit, intended to protect the operator’s hands when the press was activated. It is at the point of operation that a piece is formed through the operation of the force delivered by a descending ram.

Henry Will, Rock-Ola’s setup man, testified that it was his responsibility to employ judgment and discretion in choosing the mode and procedure to be employed by a given press operator, including which safety device, if any, was to be employed on a given job. The size and compatibility of the piece being formed were factors that entered into his' consideration.

On the day of the accident, Will had decided that Broussard would operate the press through the use of the foot pedals and would not utilize any safety device in the operation, due to the size of the unit being formed. The piece being worked on by Broussard at the time of the occurrence was about two to three feet long and from 6 to 10 inches wide, resulting in approximately six inches of the piece protruding, which required that it be held by the operator until the second hit of the ram.

Will had at least two safety devices to choose from to protect the operator during the forming process. One of the safety devices was the palm buttons, which required the operator to place both hands on the buttons to operate the press, thereby keeping his hands away from the point of operation. The other safety device was the Surty gate guard system which, when activated, had the same purpose as the palm buttons, namely, to keep the operator’s hands away from the point of operation.

The palm buttons were available when the use of the safety gate was inappropriate. If the gate guard was the safety device of choice at a particular moment, then the palm buttons would not be engaged; conversely, if the palm buttons were being engaged, the gate would not be used.

The gate guard safety system, on the judgment of the setup man, could be taken out of service completely for any reason, including the possible need to form larger or irregular pieces. In taking the gate out of service for this or any other purpose, the gate guard could not then be employed as a safety device. The gate guard was in working order, but simply not being used at the time of Broussard’s injuries.

Because the gate guard had hinges, it could be taken out of service by being swung up and away from the point of operation. The press brake could be run without the gate guard. With the gate guard inactivated, the operator would be required under such circumstances to either employ the palm button safety device, or to proceed without any safety device. Broussard’s employer, through its setup man Will, at the moment of concern in this case consciously and purposefully chose to operate the press brake without utilizing the Surty gate guard or the palm buttons, or any other safety device. To be sure, when Will opted to use the foot pedal mode of operation, the operator could not use the palm buttons. Will claimed that he did not choose the Surty gate guard because he did not know how to use it.

Kenneth Barron, Jr., was Surty’s vice-president at the time of the accident. He testified that Rock-Ola’s employees were verbally instructed about the use and adjustment of the gate guard system around the time of installation and during some 15 separate visits he made to the plant thereafter for this purpose. All of this instruction took place prior to the accident in question. In particular, Barron met with Rock-Ola’s maintenance foreman in September 1976. And in February 1977, he met with Rock-Ola’s production foreman, safety director, maintenance foreman, and plant production manager concerning the proper use of the gate guard. Prior to the accident he met individually with the setup man and foreman regarding the use and operation of the gate guard safety device. Barron recalled specifically speaking with Henry Will, the setup man, and showing him how to adjust the gate guard. Barron instructed Will on more than one occasion and was accessible to Will during all of his visits to Rock-Ola. On five or six occasions prior to the accident, Barron helped Rock-Ola employees determine if they could change or improve procedures involving the guard. After instructing Rock-Ola’s personnel, Barron had no indication that anyone in charge did not know how to adjust the guard.

Will did not recall meeting Barron, and he testified that prior to the accident he did not know how to adjust the gate guard. He further testified that a written instruction manual, received after the accident, explained the proper adjustment of the guard. Will, over the period of one year from the date of the installation of the Surty gate guard up until the time of the accident, never called Surty to inquire about the operation of the gate guard. It is equally curious that Will, over the same period of time, never asked the Rock-Ola maintenance department, whose duty it was to maintain the equipment in operable condition, for direction. Will claimed that the gate guard was never used before the accident. However, Ronald E. Griffin, Rock-Ola’s safety engineer, testified to the contrary.

Will further testified that the palm button operation was not compatible with the piece being formed by Broussard at the time he was injured. Yet on cross-examination Will admitted that the palm buttons possibly could have been used, but that their use would have slowed production. One begins to better understand the surrounding circumstances in this matter upon reading testimony which points out that the setup man (Will), the operator (Broussard), and Rock-Ola were interested in production and that Broussard operated the press brake under a quota-bonus incentive program.

The evidence deposition of Ronald E. Griffin, Rock-Ola’s safety engineer at the time of the accident, was read into the record at trial on behalf of the plaintiffs. Griffin testified that Rock-Ola requested an instruction manual from Surty before the accident, but one was not received until after the accident. Notwithstanding this fact, and most interestingly, Griffin testified that he was present when Will, the Rock-Ola setup man, received verbal instructions regarding the proper use of the gate guard system from Barron. Equally significant was Griffin’s concession that the gate guard system had indeed been used on the press brake before the accident and that the guard had no mechanical or electrical problems. Will did not specifically complain to Griffin that the reason the gate guard was not being used at the time of the accident was because they had not received a manual. Griffin’s testimony was conflicting as to why the gate guard was not being used during the run when Broussard was injured. At one point, Griffin said that the setup man, of his own volition, chose not to use the gate guard on that job, yet at another point he said that the setup man did not know how to use the gate guard.

We start our analysis by turning first to the question of whether the evidence in this case was sufficient to support the jury’s verdict on the theory of strict liability in tort. As so often has been restated by Illinois appellate courts since Suvada v. White Motor Co. (1965), 32 Ill. 2d 612, 210 N.E.2d 182:

“Under the doctrine of strict liability the essential elements which the plaintiff must allege and prove in order to establish a prima facie case are: first, that the injury or death in question was proximately caused by a condition of the product; secondly, that the condition was an unreasonably dangerous one; and lastly, that the condition existed at the time the product left the defendant’s control. [Citation.]” (Emphasis added.) Belleville National Savings Bank v. General Motors Corp. (1974), 20 Ill. App. 3d 707, 708, 313 N.E.2d 631, 632.

It is plaintiffs’ contention, allegedly established by their witnesses and admitted by their counsel at oral argument, that Surty, by the sole act of failing to provide an instruction manual to Rock-Ola, rendered its gate guard system defective, which defect proximately caused the injuries in question. However, plaintiffs offer us no authority in support of this extraordinary theory of liability.

We point out that this court has previously declined to consider an argument raised by a plaintiff without supporting authority. See Nicholl v. Scaletta (1982), 104 Ill. App. 3d 642, 647, 432 N.E.2d 1267, 1272.

Plaintiffs contend, however, that Will’s testimony supports their theory of liability in that he testified that if he had known how to adjust the gate guard, it could have been used on the run which resulted in Broussard’s injuries. That is a questionable assertion, particularly in light of Will’s testimony on cross-examination:

“Q. [MR. LEWIS]: Okay. This one is 6 to 10 inches wide. Now isn’t it a fact because of the width of that piece and the way it was being used inside of the machine that the gate guard wouldn’t work with this particular piece?
A. [MR. WILL]: Could you repeat that?
Q. Yes. Because of the width of that piece, isn’t it true that the gate guard wouldn’t work with that piece?
A. It would have been a problem, yes.”

The fact is that at the time of the injury in question Rock-Ola, through its setup man Will, had made a conscious and deliberate decision that the gate guard would not be used in the particular operation which was being conducted by Broussard. Based on the direct testimony of Will, we are asked to assume that, had a manual indeed been in Rock-Ola’s possession prior to the accident, a different result would have obtained. To make such an assumption, as well as the assumption that the absence of the manual was the proximate cause of this accident, is an exercise in gross speculation and conjecture which cannot be permitted. There is simply no evidence to support such a conclusion. One can easily compare this case directly with those cases dealing with the presence, or the adequacy, of warnings. In the warning cases, it has been held that there must be sufficient evidence supporting a reasonable inference, rather than a guess, that the presence of adequate warnings would have prevented the plaintiff’s injuries. See Staymates v. ITT Holub Industries (1987), 364 Pa. Super. 37, 527 A.2d 140; Overpeck v. Chicago Pneumatic Tool Co. (E.D. Pa. 1986), 634 F. Supp. 638, aff'd (3d Cir. 1987), 823 F.2d 751.

There is no evidence that either Will or Broussard would have acted any differently if they had had the manual. The fact that no manual was supplied by Surty until after the accident does not constitute evidence that the manual would have either been used by Will, or Broussard, or that the injury would have been avoided. Without evidence that the manual would have prevented the harm, to permit the jury to draw such an inference allows it impermissibly to base its verdict on mere speculation. If one were allowed to deal in assumptions, one could equally assume that the size of the piece being worked upon made it impossible to use the gate guard. But this court cannot deal in guess work.

Liability cannot be predicated upon surmise or conjecture as to the cause of a plaintiff’s injuries. Instead, proximate cause can only be established where there is a reasonable certainty that the defendant’s acts caused the injuries. Lindenmier v. City of Rockford (1987), 156 Ill. App. 3d 76, 85, 508 N.E.2d 1201, 1207.

In support of our conclusion we are drawn to the case of Buzzell v. Bliss (Minn. App. 1984), 358 N.W.2d 695. The plaintiff in Buzzell sustained injuries to her fingers while operating a punch press. While working at her station she removed her safety devices, known as wristlet pullbacks, and proceeded to do her work without their aid. Somehow she allowed her hands into the point of operation and sustained serious injury.

The manufacturer of the wristlets was named as a defendant. The trial court, in awarding defendant a summary judgment, held that as a consequence of the plaintiff not wearing the wristlets at the time she sustained her injury, any defect in the wristlets could not have proximately caused her accident. The appellate court affirmed, holding that the defective condition of the product must be shown to be the proximate cause of the injury. The court went on to point out that since plaintiff was not wearing the wristlet pullback device at the time of her accident, she could not establish a claim against its manufacturer.

We concur with the Buzzell court’s analysis and conclusions. Like that court, we have not found any case in our review of this issue that involves safety equipment which was available, but not in fact in use at the time of an accident, and that would support plaintiffs’ theory of proximate cause.

We are aware that proximate cause is ordinarily a question of fact, but it becomes a question of law when there can be no difference in the inference to be drawn by reasonable men. Gilbertson v. Rolscreen Co. (1986), 150 Ill. App. 3d 192, 197, 501 N.E.2d 954, 957.

Plaintiffs agree that this is not a case involving a manufacturing or design defect, as admitted by their counsel during oral argument; nor is this a ease where a safety device failed while being used; and this is not a case where a manufacturer gave incorrect instructions which were followed by the user, causing his injuries. Rather, in this case Rock-Ola made a conscious and deliberate decision, through its employee Will, not to use an operable safety device and then sent Broussard to complete his tasks without any protection.

Judgments notwithstanding the verdict should be entered only in those cases where all of the evidence, when viewed most favorably to the opponent, so overwhelmingly favors the movant that no contrary verdict based on that evidence could ever stand. Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504, 513-14.

We have reviewed all the evidence in light of the Suvada and Pedrick doctrines. We are of the opinion that all of the evidence admitted in this case, taken in its aspect most favorable to the plaintiffs, and taken together with all of the reasonable inferences that can be drawn therefrom, so overwhelmingly favors Surty that no contrary verdict could ever stand.

We find no causal relationship between the conduct of Surty in not providing a written instruction manual and the injuries sustained by Broussard. It is our view that the plaintiffs did not introduce any credible evidence from which it might be reasonably inferred that the condition of the product proximately caused Broussard’s injuries. See Pedrick, 37 Ill. 2d 494, 229 N.E.2d 504; Hepler v. Ford Motor Co. (1975), 27 Ill. App. 3d 508, 327 N.E.2d 101; Belleville National Savings Bank, 20 Ill. App. 3d 707, 313 N.E.2d 631.

For the reasons set forth above, we reverse the judgment entered below and remand this case to the circuit court of Cook County to enter judgment for the appellant Surty Manufacturing Co.

Reversed and remanded.

MURRAY, P.J., and PINCHAM, J., concur.


author: PRESIDING JUSTICE MURRAY

text:
    THOMAS J. VILLA, Plaintiff-Appellant, v. ARTHUR RUBLOFF AND COMPANY OF ILLINOIS, Defendant-Appellee.
    First District (5th Division)
    No. 1—88—1397
    Opinion filed May 19, 1989.
    Rehearing denied June 20, 1989.

      Tom Leahy and Stephen S. Phalen, both of Leahy & Conovan, of Chicago, for appellant.
    Nicholis J. Stein, of Law Offices of James J. Des Veaux, of Chicago, for appellee.
   PRESIDING JUSTICE MURRAY

delivered the opinion of the court:

Plaintiff Thomas J. Villa appeals from entry of summary judgment in favor of defendant, Arthur Rubloff & Company of Illinois (Rubloff). The record indicates that in 1981, while employed by Evergreen Plaza Associates (Evergreen Plaza) as a security guard for its shopping center, plaintiff suffered permanent injury to his left hand after he fell on a staircase.

Evergreen Plaza, a limited partnership, and its insurer entered into a workers’ compensation settlement with plaintiff. Rubloff, a corporation engaged in managing commercial, industrial, office, and residential properties, was not a party to the workers’ compensation proceedings. Subsequent to his settlement, plaintiff filed a common law negligence action against Rubloff. Rubloff moved for summary judgment claiming that as an agent of plaintiff’s employer, it is entitled to immunity under the exclusivity provision of the Workers’ Compensation Act (Act) (Ill. Rev. Stat. 1981, ch. 48, par. 138.5(a)).

Prior to plaintiff’s accident, Rubloff and Evergreen Plaza had entered into a management agreement under which Rubloff would manage the shopping center as an agent for the owner, Evergreen Plaza. Rubloff was authorized to lease (with Evergreen Plaza’s prior written approval of each lease) and collect rentals; to employ, discharge, and pay all employees necessary for the care, management, or operation of the property, with such expenses being charged to Evergreen Plaza; to make ordinary repairs and necessary purchases; and to pay utilities and other necessaries from the collected proceeds.

Evergreen Plaza was responsible for all insurance coverage for itself and Rubloff, including workers’ compensation, liability, and indemnification policies. Rubloff was not required to advance any funds for management purposes and, if it did, was entitled to interest thereon. The agent was also bound to follow the accounting procedures submitted by Evergreen Plaza’s accountant. The owner was obligated to provide office space for management purposes and to pay for supplies, utilities, and management staff salaries. Rubloff, at its own expense, was required to hire a leasing solicitor. For these and other detailed services, Rubloff received a yearly management fee of $75,000 plus a commission for new leases at 40% of the agent’s prevailing rate.

The sole issue in this appeal is whether Rubloff is an “agent” within the purview of the exclusive remedy clause of the Act, which provides:

“(a) No common law or statutory right to recover damages from the employer, his insurer, his broker, any service organization retained by the employer, his insurer or his broker to provide safety service, advice or recommendations for the employer or the agents or employees of any of them for injury or death sustained by any employee *** is available to any employee who is covered by the provisions of this Act ***.” (Emphasis added.) Ill. Rev. Stat. 1981, ch. 48, par. 138.5(a).

Plaintiff claims that the word “agent” in this provision does not include a management company such as Rubloff because such a meaning would grant immunity to all subcontractors. He further contends that “agent” has been judicially limited to members of a joint venture or partnership. (See, e.g., Smith v. Metropolitan Sanitary District (1979), 77 Ill. 2d 313.) In essence, plaintiff argues that since Rubloff is an entity separate and distinct from the limited partnership of Evergreen Plaza, it is not an agent and is subject to a common law action. According to plaintiff, “Illinois law holds that immunity bestowed to ‘agents’ stems from membership in the employer organization which is required to pay compensation under the act.”

Ordinarily the question of whether a relationship is that of agent or independent contractor is a question of fact, unless the relationship is so clear as to be indisputable. (Perkinson v. Manion (1987), 163 Ill. App. 3d 262.) However, in the present case, plaintiff in his complaint labelled Rubloff as the managing agent of Evergreen Plaza and, further, stated in oral arguments before the trial court, that although Rubloff could be considered an agent in the traditional sense of the word, it was not an agent within the meaning of section 5(a) of the Act. Plaintiff’s contention that Rubloff was not an agent at all, but was instead an independent contractor, was first mentioned in his appellate reply brief. In light of his arguments in the trial court, the issue of agency becomes one of law, i.e., whether the relationship between Rubloff and Evergreen Plaza is one that is included in section 5(a), thus barring a common law negligence suit against agent Rubloff by an injured employee of the principal, Evergreen Plaza.

We agree with the trial court that Rubloff is an agent. We believe that one of the reasons there appears to be no Illinois case law on this precise issue is because there is no question that under the present circumstances, a property manager is clearly an agent for the property owner. Cases involving managing agents usually are concerned with the scope of the agent’s authority; the fact of agency itself is not an issue. (See, e.g., Peoples Gas Light & Coke Co. v. Barrett (1983), 118 Ill. App. 3d 52 (management agent has inherent authority to have gas service installed); The Roscoe Co. v. Lewis University, College of Law (1979), 79 Ill. App. 3d 1098 (no dispute that corporation hired to operate and maintain physical plant of university was an agent, and agent’s employees were subagents who could contractually bind university).) In both of these cases, the agent was a separate entity.

According to the Restatement (Second) of Agency, it is inferred that a general grant of authority to manage a business includes those same duties outlined in the agency contract in the present case, e.g., make contracts; employ, supervise, and discharge; receive payments for and pay debts of the principal; and direct the ordinary operations of the business; moreover, an agent can be in charge of the principal’s entire business or only a part thereof. (Restatement (Second) of Agency §73 (1957).) Under Illinois law, an agent is one who acts under authority from another to transact business for him or manage his affairs and who is required to act for the other. (Clapp v. JMK/Skewer, Inc. (1985), 137 Ill. App. 3d 469.) Thus, plaintiff’s untimely argument that Rubloff is not an agent in the traditional sense is without merit. Whether it is an agent within the statutory meaning requires an examination of case law and section 5(a) of the Act, since “agent” is not defined in the Act.

Plaintiff’s claim that a separate entity cannot be protected by section 5(a) immunity overlooks the plain meaning of the statutory language and also misinterprets case law concerning this provision. The word “agents” is not limited or qualified in any way by the Act. The court in Mier v. Staley (1975), 28 Ill. App. 3d 373, held that under section 5(a), directors were agents of a corporation.. In so holding, the court stated that it would be a misnomer to consider an officer to be an employee since such a person represents the corporation and his acts are the acts of the corporation. (Mier, 28 Ill. App. 3d at 378.) The Mier court noted that the word “agents” was added to the Act in 1969 (at the same time that employers’ insurers were extended immunity), and that it should therefore be construed as not being superfluous: “[t]o hold that ‘agents’ has no meaning in addition to the meaning of employer or employee would not be consistent with the rules of statutory construction.” (Mier, 28 Ill. App. 3d at 379.) The same reasoning is applicable to the present case. The legislature did not limit “agents” to only those included in the same entity.

Plaintiff’s reliance on Smith v. Metropolitan Sanitary District (1979), 77 Ill. 2d 313, as support for his contention that for a separate entity to be an agent, it must be a member of a joint venture or partnership of which the employer is also a member, is misplaced. The Smith court was concerned with determining whether an employee of a joint venture could assert a separate tort claim against a joint venturer under the dual capacity doctrine. In its analysis, the court in Smith shifted the focus of the doctrine from a position of determining whether the employer occupied a second independent role to one where “an exclusive concern” was whether the controversy involved separate legal entities. (Toth v. Westinghouse Elevator Co. (1983), 114 Ill. App. 3d 905, 908.) The Smith analysis regarding the dual capacity doctrine is not applicable to the question of whether an agent can be a separate entity.

Language cited by plaintiff as enunciated in the cases of Laffoon v. Bell & Zoller Coal Co. (1977), 65 Ill. 2d 437, and Fried v. United States (N.D. Ill. 1983), 579 F. Supp. 1212, is similarly inapplicable to the present case. Both of these cases used the term “immediate employees” in holding that employers of uninsured independent contractors were not immune to tort liability to an injured employee of the contractor under section 5(a). (Laffoon, 65 Ill. 2d at 447; Fried, 579 F. Supp. at 1218.) The Fried court further used the “immediate employee” test in determining that one of the defendants was not a joint venturer and was thus susceptible to a tort claim. In addition, the court in Fried found that another defendant was immune to suit since it was an agent, and relied on Mier v. Staley (1975), 28 Ill. App. 3d 373, for the proposition that “agents” includes those persons not specifically covered by the Act but are so closely related to the employer that granting immunity would be fully consistent with the Act. (Fried, 579 F. Supp. at 1224.) Noting that the defendant was not an independent entity, the court provisionally held it to be an agent pending reply from the plaintiff showing facts that would contradict the agency relationship.

We do not believe that any of these cases support plaintiff’s argument that an agent cannot be a separate entity for purposes of workers’ compensation. The relationship between Evergreen Plaza and Rubloff is clearly that of principal and agent in the traditional sense and is encompassed by the Act. To extend protection of section 5(a) to Rubloff does not contravene either the plain meaning of the word "agents” or the legislative intent behind the Act, which is “to provide employees with a prompt, sure remedy for their injuries and to require that the costs of industrial accidents be borne by the industry rather than its individual members.” (Mier, 28 Ill. App. 3d at 379.) In return for this protection, an employee gives up his right to proceed at common law against his employer and certain others specified in the statute, such as agents. Here, plaintiff recovered compensation from his employer, Evergreen Plaza, and cannot now assert a claim against his employer’s agent, Rubloff.

For the foregoing reasons, the trial court’s grant of summary judgment to Rubloff is affirmed.

Affirmed.

PINCHAM and COCCIA, JJ., concur.


author: JUSTICE McNAMARA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LAWRENCE HAYES, Defendant-Appellant.
    First District (6th Division)
    No. 1—86—3455
    Opinion filed May 19, 1989.

      Randolph N. Stone, Public Defender, of Chicago (Julie A. Hull, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Inge Fryklund, Paula Carstensen, and Robyn B. Berman, Assistant State's Attorneys, of counsel), for the People.
   JUSTICE McNAMARA

delivered the opinion of the court:

Following a jury trial, defendant Lawrence Hayes was found guilty of criminal sexual assault, aggravated criminal sexual assault and kidnapping. The trial court sentenced defendant to an extended term of 55 years’ imprisonment for aggravated criminal sexual assault and a concurrent term of 14 years’ imprisonment for kidnapping. On appeal, defendant contends that in closing argument the prosecutor improperly recited at length her personal experience of a near-rape; that the trial court erred in preventing any questioning of the victim in regard to a murder charge pending against her; that the prosecutor improperly elicited testimony of, and commented on, defendant’s post-arrest silence; and that he was denied effective assistance of counsel because of a conflict of interest.

The victim testified that on November 11, 1985, at about 5 a.m., she walked from her home to a gas station to buy cigarettes. She saw defendant following her. She ran, but he caught her, held a large hunting knife to her side and threatened to kill her if she screamed. After he forced the victim into a Cadillac, he looked through her purse, but found only a few dollars and took nothing. After driving for 15 minutes, defendant parked and forced the victim to perform fellatio, and then raped her vaginally. He drove around until he stopped in an alley, where he again forced the victim to perform fellatio and raped her vaginally. He also attempted anal intercourse.

When the victim asked to leave the car to urinate, she escaped. She had been with defendant between one and two hours. She tried to stop a car driven by a woman, and screamed she had been raped, but the woman did not stop. The victim hid under a porch for several minutes until defendant left and she saw Miss C. Seay leave her home. The victim yelled for help and told Seay a man had tried to rape and rob her. The victim hesitated to say she had been raped for fear that Seay, like the first woman, would not help. Seay and the victim ran to the corner, where they saw a squad car. The victim spoke with a police officer. She described defendant as a black male with a light complexion, a mustache, 25 to 27 years old, 5 feet 4 inches to 5 feet 7 inches tall, and weighing 160 to 170 pounds. He wore a black leather jacket, tan pants and white T-shirt. (Defendant, a medium-complected black male, later reported he was 24 years old, 5 feet 8 inches tall and weighed 144 pounds.) The officer and the victim drove around the area but did not see defendant. She was shown mug shots, but did not see defendant’s photograph. An officer took her to the hospital.

On November 30, 1985, the victim was riding in a car driven by a friend of her brother’s when she saw defendant on a corner selling dolls and stuffed animals. He was wearing the same black leather jacket. She notified the police, who arrested defendant.

Miss Seay testified for the State that on November 11, 1985, at 7:30 a.m., she was walking when the victim ran up and said that a man was after her and had threatened to rape her. They ran towards a bus stop and spotted a marked police car. The victim went to speak with the officers, and Seay left on the bus.

Officer Patrick Markham testified for the State that he was working a shift ending at 7:30 a.m. when, at about that time, the victim came up to his parked squad car and said she had been forced into a car at knife point and raped. The victim described her assailant and his automobile. After touring the area with the victim and not spotting defendant, Markham took the victim to the police station and turned the case over to Officer Don King, who was coming on duty. Markham did not show mug shots to the victim.

Officer King testified for the State that he received an assignment from Markham to continue the rape investigation. He and his partner filled out the entire police report, which included the victim’s recital of the offense. The officers brought her to the hospital for treatment. They did not show her mug shots.

Officer Michael Cox testified that he arrested defendant on November 30. Cox and his partner exited the police car, identified themselves to defendant and informed him of the charges. The officers then “placed him under arrest and we read of his rights.” Defendant did not resist arrest. When asked if defendant said anything when told of the charges, the officer replied, “No. He didn’t seem surprised.”

Gloria Jean Thurman, defendant’s mother, testified for the defendant that on November 11, 1985, defendant was at home. At 3 a.m., she asked defendant to tell his sister and her husband to stop arguing. Thurman’s husband became ill, and at 6 a.m., defendant drove him to the hospital. Neither defendant nor his family owned or drove a Cadillac. Thurman did not report defendant’s whereabouts that night to the police when her son was arrested.

At the sentencing hearing, it was brought out that defendant had three previous rape convictions.

Defendant initially contends that the prosecutor committed prejudicial error in closing argument by relating to the jury her personal experience which might have ended in assault or rape. The prosecutor ■ stated:

“And the testimony you heard from [the victim] from this witness stand was clear, was believable and was uncontradicted in any way, shape, or form.
* * *
*** It’s a shame this woman went out to get cigarettes by herself at 5:30 in the morning, but women in this city and in this country should be allowed to walk the street at any hour without being accosted by the likes of Lawrence Hayes.
They should be able to walk the streets. Two blocks, [the victim] was going two blocks to get some cigarettes. Now, I don’t smoke any more but when I was in law school I smoked cigarettes and there was one evening when it was finals time and I ran out of cigarettes about 10:30 at night. I thought maybe I’ll study some more and do without it. And it got to be 11:30 at night, I couldn’t do without my cigarettes. I was addicted.
There was a drugstore a few blocks away and I decided to walk. I didn’t go to school, I didn’t go to law school, in this city. I went to law school in another city where it wasn’t — I lived in not the best neighborhood in town at that time. I decided to walk rather than move my car because near the drugstore there was no parking. It was around 11:30, the drugstore closed at 12:00.
I went around the corner and the car was behind me and I saw someone, he was walking towards me. I didn’t like how he walked—
DEFENSE COUNSEL: Your Honor, I’m going to object.
COURT: Proceed.
PROSECUTOR: — so I crossed the street diagonally. He crossed the street diagonally. I didn’t want to start to run because I thought he would run after me. While I was deciding what to do some people came out of their house and he ran past me, so he was going to do something. I was lucky, [the victim] wasn’t.”

Generally, it is improper for the prosecutor to vouch for the credibility of a witness or to express personal opinions about the case. (People v. Emerson (1987), 122 Ill. 2d 411, 522 N.E.2d 1109; People v. Rogers (1988), 172 Ill. App. 3d 471, 526 N.E.2d 655.) The prosecutor may comment on the credibility of witnesses only so long as those comments are fair inferences from the evidence. (People v. Evans (1988), 173 Ill. App. 3d 186, 527 N.E.2d 448; People v. Carter (1988), 168 Ill. App. 3d 237, 522 N.E.2d 653.) The prosecutor here improperly bolstered the victim’s credibility and improperly appealed to the jury’s passions and prejudices. She went far beyond any comment on the evidence and improperly placed the integrity of the State’s Attorney’s office behind the credibility of this witness.

A defendant is entitled to a trial by an unbiased jury and is not to be judged based on the unsubstantiated personal opinion of the prosecutor. (See People v. Bean (1985), 109 Ill. 2d 80, 485 N.E.2d 349.) The purpose of this rule prohibiting the expression of personal opinions, particularly based on facts not in the case, is to prevent the introduction of new material by a witness whom defendant cannot cross-examine, to prevent the jury from assuming counsel has relevant information not presented at trial, to discourage appeals to the jurors’ emotions, and to prevent distracting the jury from weighing proper factors. People v. Holman (1984), 103 Ill. 2d 133, 469 N.E.2d 119.

In the present case, the State urges that because the victim was abducted from the street and the prosecutor was almost abducted from the street, the prosecutor was “merely expanding on that inference” in her argument. We cannot agree. The prosecutor’s remarks suggested that her previous experience was somehow relevant to the jury’s decision and thus injected improper and irrelevant consideration into the jury’s deliberations. (See People v. Yates (1983), 98 Ill. 2d 502, 456 N.E.2d 1369.) It was not a case, e.g., where the prosecutor’s references were general and vague and thus not requiring reversal. (See People v. Spreitzer (1988), 123 Ill. 2d 1, 525 N.E.2d 30.) The argument here was a detailed, specific account of the prosecutor’s personal experience, which could naturally appeal to the sympathy or prejudice of the jury. She strongly implied that the victim’s testimony should be believed because the prosecutor too had faced a dangerous neighborhood on a late night, a short trek for cigarettes, and the fear of being attacked by a man chasing her.

The State maintains that the prosecutor merely commented upon evil resulting from crime and urged the fearless administration of the criminal law. While such comment would be proper, it is improper where the prosecutor invokes the prestige of the prosecutorial office or interjects her own personal opinion. See People v. Fletcher (1987), 156 Ill. App. 3d 405, 509 N.E.2d 625.

Improper comments in argument of counsel do not constitute reversible error, however, unless they result in substantial prejudice to defendant and were a material factor leading to defendant’s conviction, i.e., where the result might have been otherwise had the remarks not been made. People v. DeHoyos (1988), 172 Ill. App. 3d 1087, 527 N.E.2d 319.

The evidence supporting the conviction here was not overwhelming. The conviction rests largely upon the credibility of the victim’s testimony. While a jury could find her testimony alone sufficient to find defendant guilty beyond a reasonable doubt, defendant has the right to not have that credibility significantly bolstered by improper prosecutorial argument. There was no physical or medical evidence presented. Seay testified only that the victim said a man was after her and threatened to rape her. Markham testified that the victim reported the rape. Thus, while Seay and Markham offered some corroboration, the State’s case relied greatly upon the victim’s identification testimony. For these reasons, we find the result might have been otherwise had the prosecutorial remarks not been made and that they prejudiced defendant and were a material factor leading to the conviction. The comments constituted prejudicial error.

Defendant also contends that the trial court erred in granting the State’s motion in limine precluding any questioning of the victim about a pending murder charge for which she was in custody.

Prior to trial, the State moved orally “to preclude cross-examination of the victim or any other, reference in the trial to her merely pending murder charge.” The State then apparently tendered to defense counsel an audio cassette tape containing the victim’s recorded statement about the pending murder charge. It appears, therefore, that the trial court was not given the benefit of the transcript of that tape which is in the record before us. The typewritten statement of the victim states that she had been seeing Fred Herndon, who sometimes paid her for sexual relations. On September 14, 1986, Herndon asked her not to see other men and promised he would stop seeing., another woman. After he spoke with another woman on the telephone, however, Herndon and the victim argued verbally and physically. She then stabbed and killed Herndon and afterwards robbed his home.

The argument concerning the oral motion in limine before the trial court centered only on the possibility of the victim’s receipt of offers or consideration from the State in exchange for her testimony in this case. The trial court cannot be faulted for not delving into the defense’s argument raised before this court that the victim was a prostitute who killed her pimp and had previously falsely accused defendant of rape. Defense counsel offered the trial court no information suggesting such facts when the court entered its order in limine.

We note, however, that generally a witness may be questioned about any possible influence by interest, bias or motive to testify falsely, even regarding an unrelated crime. (People v. Wilkerson (1981), 87 Ill. 2d 151, 429 N.E.2d 526.) Such cross-examination before the jury is a matter of right, and the trial court has no discretionary power to deny defendant that right. (People v. Triplett (1985), 108 Ill. 2d 463, 485 N.E.2d 9.) Thus, we find that at retrial, defendant should be permitted to examine the victim of a pending murder charge, if the charge remains pending, and of any expectation of lenity she may have as a result of her testimony.

Defendant also maintains that he was denied a fair trial because of testimony and prosecutorial references to his post-arrest silence. Since we assume that on retrial nc such alleged error will occur, we will not discuss the issue.

In regard to the final issue, defendant contends that he failed to receive effective assistance of counsel. He maintains there was a conflict of interest because he was represented by the office of the public defender and the victim was represented by the same office in her murder case. We find no such conflict between the assistant public defender from the autonomous murder task force who represented the victim in the unrelated murder case, and the assistant public defender representing defendant in this case. See People v. Coates (1985), 109 Ill. 2d 431, 488 N.E.2d 247; People v. Miller (1980), 79 Ill. 2d 454, 404 N.E.2d 199.

For the foregoing reasons, the judgment of the circuit court of Cook County is reversed and the cause is remanded for a new trial.

Reversed and remanded.

EGAN, P.J., and LaPORTA, J., concur.


text:
      In re MARRIAGE OF JEANETTE MATEJA, Petitioner-Appellee, and EDWARD MATEJA, Respondent-Appellant.
    First District (6th Division)
    No. 1—87—3591
    Opinion filed May 19, 1989.
    — Modified on denial of rehearing June 23, 1989.

      Batler, Capitel & Schwartz, of Buffalo Grove (Jerome Marvin Kaplan, of counsel), for appellant.
    lee. Shepp & Sherwin, of Chicago (Judith S. Sherwin, of counsel), for appel-
   JUSTICE McNAMARA

delivered the opinion of the court:

Edward Mateja (the husband) appeals from a trial court order denying his petition to terminate maintenance paid to petitioner Jeanette Mateja (the wife). He contends that the maintenance agreement incorporated in the judgment for dissolution of marriage was modifiable.

On June 4, 1981, a judgment for dissolution of marriage was entered. It included a marital settlement agreement which provided that the husband would pay 35% of his net income, with a minimum of $550 per month, as support for the wife and their minor child until the child reached age 18, when the payments would equal 18% of his net income from all sources with a minimum of $300 per month until the wife remarried. The agreement stated that Jeanette was “permitted to earn up to and including the sum of $13,000 per year gross before her earnings shall have an effect upon [husband’s] obligation for support of maintenance of either [wife] or the minor child.” The agreement also stated: “The parties further agree that the terms of the Agreement shall be non-modifiable.”

At the proveup hearing, the husband testified that he understood that he had the right to seek a modification of the agreement if there was a material change of circumstances on the part of either party.

On January 13, 1986, the husband filed a petition to terminate maintenance. The wife’s motion to strike was denied. At an evidentiary hearing, the husband testified regarding his earnings. The wife testified that she earned $1,190 in 1986; $4,180 in 1985; $4,186 in 1984; and nothing in 1983. She also testified about her employment history.

On October 29, 1987, the trial court denied the petition to terminate maintenance after finding the parties expressly intended that the agreement was nonmodifiable unless petitioner earned over $13,000 per year, remarried or died.

The husband contends that the trial court erred in finding as a matter of law that the marital settlement agreement was nonmodifiable. Section 502(f) of the Illinois Marriage and Dissolution of Marriage Act provides that except for terms concerning the support, custody or visitation of children, the judgment may expressly preclude or limit modification of the terms if the agreement so provides. (Ill. Rev. Stat. 1981, ch. 40, par. 502(f).) Such agreements are interpreted according to the same principles of construction applied to other contracts. Ingrassia v. Ingrassia (1987), 156 Ill. App. 3d 483, 509 N.E.2d 729.

The contract must expressly state the parties’ intent to limit modification to specific circumstances. (In re Marriage of Chalkley (1981), 99 Ill. App. 3d 478, 426 N.E.2d 237.) Where the judgment expressly precludes or limits, by clear and precise language, any modification, the trial court must give effect to that expression of the parties’ intentions. In re Marriage of McFarlane (1987), 160 Ill. App. 3d 721, 513 N.E.2d 1146; Simmons v. Simmons (1979), 77 Ill. App. 3d 740, 396 N.E.2d 631.

The husband maintains that by finding the agreement non-modifiable, the court ignored the provision permitting the wife to earn up to $13,000 before he can seek a modification. The husband urges that these are inconsistent provisions and thus the language on nonmodifiability does not apply to the specific maintenance provisions because they contribute most essentially to the contract.

The simple, clear language of the contract fails to support such an interpretation. We hold that no ambiguity exists here. The entire agreement is nonmodifiable unless, as specifically provided, the wife earns over $13,000 or remarries or dies. None of these conditions has arisen. The trial court properly enforced the nonmodification provision of the contract and was correct as a matter of law in denying the husband’s petition to terminate maintenance.

Contrary to our holding here, the third district of this court recently construed similar language (“[tjerms of this marital separation agreement shall not be changed or modified without the agreement and consent of both parties”) so as to permit modification. In re Marriage of Sutton (1989), 178 Ill. App. 3d 928, 930, 533 N.E.2d 1125, appeal allowed (1989), 126 Ill. 2d 559.

We decline to follow the holding in Sutton for the reasons we have stated above. We support the reasoning set forth by Justice Barry in his dissenting opinion in Sutton.

The husband also argues that the court failed to consider his testimony at the proveup hearing that he understood the agreement to mean he could seek a modification of maintenance in the event of a material change in circumstances. Where there is no ambiguity in a contract, the court will not look beyond the four comers of the document. W.H. Lyman Construction Co. v. Village of Gurnee (1985), 131 Ill. App. 3d 87, 475 N.E.2d 273.

The husband finally contends that the trial court erred in failing to reduce the wife’s maintenance on the basis that she failed in her general duty to seek appropriate training or education to become financially independent so that maintenance could be terminated or reduced. (See generally In re Marriage of Lasota (1984), 125 Ill. App. 3d 37, 465 N.E.2d 649.) There is no indication in the contract that this was intended as a prerequisite to receiving further maintenance. While the Act refers to reductions or termination of maintenance where a spouse fails to make a good-faith effort to seek rehabilitation (Ill. Rev. Stat. 1981, ch. 40, par. 510), the Act also provides that the parties may agree otherwise (Ill. Rev. Stat. 1981, ch. 40, par. 502(f)) and that their agreement controls. See In re Marriage of Kozloff (1984), 101 Ill. 2d 526, 463 N.E.2d 719 (maintenance payments unmodifiable unless wife dies; her remarriage, thereon, has no effect, notwithstanding section 510(b)’s provision that the obligation to pay future maintenance terminates upon remarriage).

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

Judgment affirmed.

EGAN, P.J., and LaPORTA, J., concur.


author: JUSTICE BUCKLEY

text:
    ROBERT R. PINTUR, Indiv. and as Father and Next Friend to Robert T. Pintur, a Minor, Plaintiffs-Appellants, v. CARL GERMANN et al., Defendants-Appellees.
    First District (1st Division)
    No. 1—88—0536
    Opinion filed May 22, 1989.

      Farrell & Associates, Ltd., of Palos Heights (Noreen M. Daly and Mary K. Farrell, of counsel), for appellants.

      Beverly, Pause, Duffy & O’Malley, of Chicago (James L. Rados and Daniel C. Truesdale, of counsel), for appellees.
   JUSTICE BUCKLEY

delivered the opinion of the court:

This appeal arises from a negligence action filed in the circuit court by Robert T. Pintur and his father, Robert R. Pintur (plaintiffs), seeking damages from Jeff Germann and his father, Carl Germann (defendants), for injuries sustained by Robert T. in an incident involving an automobile driven by Jeff and owned by Carl. The circuit court granted defendants’ section 2 — 619 motion to dismiss (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619) because the Workers’ Compensation Act (the Act) (Ill. Rev. Stat. 1985, ch. 48, par. 138.1 et seq.) barred their common-law action. We affirm.

Section 5(a) of the Act prohibits common-law actions against “the employer *** or the agents or employees” of the employer for injuries compensable under the Act. (Ill. Rev. Stat. 1985, ch. 48, par. 138.5(a).) The Illinois Supreme Court has interpreted this section as barring a common-law action by an employee against a negligent co-employee covered under the Act where the accidental injury (1) arises out of the employment and (2) is in the course of the employment. (Rylander v. Chicago Short Line Ry. Co. (1959), 17 Ill. 2d 618, 161 N.E.2d 812; Chmelik v. Vana (1964), 31 Ill. 2d 272, 201 N.E.2d 434.) At issue here is whether Robert T.’s injury arose out of and in the course of his employment.

The material facts here are undisputed. On August 4, 1986, Robert T. and Jeff, both employees of Park Lawn School and Activity Center, Inc., “punched out” of work for the day. Jeff, who had left the work premises to drive around the block, returned to their employer’s parking lot to give Robert T. a ride home. Before the vehicle came to a complete stop, Robert T. jumped onto the outside of the vehicle. Jeff then accelerated, thereby throwing Robert T. to the pavement and injuring him.

These factual circumstances clearly satisfy the requirement that the injury occur in the course of the employment. The Illinois Supreme Court has defined the phrase “in the course of the employment” as that within the period of employment at a place where the employee may reasonably be in the performance of his duties or engaged in something incidental thereto. (Chmelik, 31 Ill. 2d at 278, 201 N.E.2d at 438.) Expounding further, the court has stated that employment is not limited to the exact moment when an employee begins or ceases his duties because employment contemplates an employee’s entry upon and departure from the employer’s premises as much as it contemplates his working there. (Chmelik, 31 Ill. 2d at 278, 201 N.E.2d at 438.) Plaintiff Robert T.’s injury here indisputably occurred shortly after work on the employer’s premises while he was leaving work. This evidence as to time, place, and circumstances of injury has repeatedly been held to satisfy the “course of employment” requirement. See Chmelik, 31 Ill. 2d at 278, 201 N.E.2d at 438; Rogers v. Industrial Comm’n (1980), 83 Ill. 2d 221, 223, 414 N.E.2d 744, 745; Mast v. Rogers (1969), 118 Ill. App. 2d 288, 293, 254 N.E.2d 179, 181.

As to the requirement that the injury “arise out of” the employment, the Illinois Supreme Court has defined such an injury as one having its origin in some risk connected with, or incidental to, the employment. The risk ordinarily is not one to which the public generally is. subjected, although the requirement may be satisfied if an employee is exposed to a risk to a greater degree than other persons by reason of his employment. Chmelik, 31 Ill. 2d at 277-78, 201 N.E.2d at 438; Orsini v. Industrial Comm’n (1987), 117 Ill. 2d 38, 45, 509 N.E.2d 1005, 1008.

Applying these principles, courts have found risks encountered by co-employees involved in automobile accidents in the employer’s parking lot while the employees were leaving work to be incidental to the employment. (Chmelik, 31 Ill. 2d 272, 201 N.E.2d 434; Mast, 118 Ill. App. 2d 288, 254 N.E.2d 179.) Among the injuries found not to be incidental to the employment are those which result from a personal risk, as opposed to a risk inherent in the claimant’s work or work place. Roberts & Oake v. Industrial Comm’n (1942), 378 Ill. 612, 39 N.E.2d 315 (employee injured while on lunch break while he jumped onto a running board of a truck on a road off the employer’s premises); Orsini, 117 Ill. 2d 38, 509 N.E.2d 1005 (employee injured while working on his personal automobile during working hours when his car lurched forward); Fisher Body Division, General Motors Corp. v. Industrial Comm’n (1968), 40 Ill. 2d 514, 240 N.E.2d 694 (employee injured from attaching jumper cables from a booster battery in his car); Rogers, 83 Ill. 2d 221, 424 N.E.2d 744 (employee injured when struck by a malfunctioning automobile driven by his wife in the parking lot of his employer after work); Jones v. Industrial Comm’n (1980), 78 Ill. 2d 284, 399 N.E.2d 1314 (employee injured in employer’s parking lot when he accidently closed the car door on his hand).

In our judgment, the factual circumstances of the instant case fit squarely under the holdings in Chmelik and Mast. In Chmelik, the plaintiff was struck by a vehicle driven by a co-employee when the plaintiff was leaving work as he walked across the company parking lot. In Mast, co-employees were involved in an automobile collision as they were leaving work on a road which was owned by the employer. The injury here resulted from an automobile accident between co-employees in the employer’s parking lot while both employees were leaving work shortly after they had “punched out” of work.

We do not believe, as plaintiffs urge, that the instant case can be distinguished from these holdings. Plaintiffs argue that the injury could not have arisen from Robert T.’s employment because he voluntarily assumed a personal risk not connected with his employment by stepping onto the outside of defendant Carl’s car. In all the cases cited by plaintiffs where courts have found a risk personal to the employee rather than incidental to the employment, however, the risks were entirely separate from the employment. For example, in Orsini, the court emphasized that the personal risk assumed by the employee in working on his automobile served no purpose relative to the employment and the risk was “totally unrelated” to the employment. (Orsini, 117 Ill. 2d at 47, 509 N.E.2d at 1009.) In Roberts & Oake, where the employee jumped on a running board on a road off the employer’s premises on his lunch break, the court emphasized that the plaintiff had chosen a method of transportation which was not in any way identified with his employment or incidental to it. Roberts & Oake, 378 Ill. at 616, 39 N.E.2d at 316.

As in Chmelik and Mast, the accident here was connected to the employment because it involved co-employees as they were leaving work in their employer’s parking lot. The fact that Robert T. may have contributed to his injury by jumping onto the car does not render the injury unconnected to the employment. In Mast, the court stated that where an injury is fairly traceable to the employment as a contributory proximate cause, it qualifies as having arisen out of the employment. (Mast, 118 Ill. App. 2d at 292, 254 N.E.2d at 181.) Thus, the fact that plaintiff contributed to the risk should not be determinative here because the injury is traceable to a risk incidental to the employment.

Accordingly, based upon Illinois case law, we hold that the circuit court’s findings that the accident arose out of and in the course of the employment are correct as a matter of law. We, therefore, affirm the circuit court’s dismissal of plaintiffs’ common-law action on the ground that it is barred by the Act.

Affirmed.

MANNING, P.J., and O’CONNOR, J., concur.


author: JUSTICE QUINLAN

text:
    NEIL COLE, Indiv. and as Ex’r of the Estate of Paul C. Zimmerman, Deceased, Plaintiff-Appellee, v. DOROTHY GUY, Personal Representative of the Estate of Clifton Harper, Deceased, et al., Defendants-Appellants.
    First District (1st Division)
    No. 1—88—1408
    Opinion filed May 22, 1989.

      Andrew J. Creighton and Allen D. Freidman, both of Chicago, for appellants.
    Zaban, Jacobs & Mayer, of Chicago (Marc S. Mayer and Alan Jacobs, of counsel), for appellee.
   JUSTICE QUINLAN

delivered the opinion of the court:

Plaintiff, Neil Cole, brought an action individually and as executor of his deceased brother’s estate in the chancery division of the circuit court of Cook Comity, seeking to quiet title to certain real estate. Cole claimed that he and his brother had purchased the real estate in 1974 from Clifton and Pearl Harper. Defendants, the heirs of Clifton and Pearl Harper, counterclaimed for possession of the real estate and for an accounting. Following a bench trial, the circuit court entered judgment for plaintiff. Defendants then appealed that judgment to this court. We now affirm.

The real estate at issue in this case is located at 1707 and 1709 N. Dayton in Chicago (Dayton properties). Plaintiff alleged in count I of his second amended complaint that Clifton and Pearl Harper purchased the Dayton properties in 1971 as joint tenants and then sold the properties sometime in 1974 to plaintiff and his brother, Paul Zimmerman, for $10,000. The complaint stated that plaintiff and his brother received a warranty deed to the Dayton properties from the Harpers, but never recorded the deed and that the deed-had been subsequently lost. Plaintiff also alleged that he and his brother, doing business together as Imperial Properties, paid all real estate taxes and insurance on the Dayton properties since 1974 and made various improvements to the properties during that time. Plaintiff further stated in count I of his second amended complaint that he and his brother had been in actual, open possession of the Dayton properties since 1974 and cited section 13 — 109 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 13 — 709) as part of his assertions. Section 13 — 109 provides that one who is in actual possession of land under claim and color of title for seven successive years, and who has paid all taxes assessed on that land for seven successive years, shall be held to be the legal owner of the land to the extent and according to the purport of his paper title. (Ill. Rev. Stat. 1987, ch. 110, par. 13 — 109.) Finally, plaintiff concluded his contentions in count I by asking the court to decree that he, individually and as executor of Paul Zimmerman’s estate, was the true and rightful owner of the Dayton properties, and to grant any other relief that the court deemed just.

Count II of plaintiff’s second amended complaint again alleged that plaintiff and his brother had paid all real estate taxes and insurance on the Dayton properties and had paid for improvements on the Dayton properties, and that they had done so under a good-faith belief that they were the rightful owners of the properties. Plaintiff asserted that these expenditures would unjustly enrich the defendants if the court ruled that plaintiff was not the rightful owner of the properties. Therefore, the plaintiff requested as an alternative form of relief that if the court determined the defendants to be the true and rightful owners of the property, plaintiff be granted judgment against the defendants in the amount that he and his brother had expended for real estate taxes, insurance payments and improvements to the properties.

The defendants filed an answer and also a counterclaim, which requested possession of the Dayton properties and an accounting for all the rents collected on the properties. Thereafter, the case proceeded to trial, which was heard by the trial court without a jury.

The plaintiff presented Morton Zaslavsky, an attorney, as one of his witnesses. Zaslavsky testified that Clifton Harper told him in October 1974 that he, Harper, wanted to sell the Dayton properties for $10,000. Zaslavsky mentioned the proposed sale to plaintiff and Zimmerman, who decided to purchase the properties. Zaslavsky then handled the legal aspects of the transaction for the parties.

Zaslavsky testified that he could not remember all the details of the transaction and could not locate anything in his files related to this transaction. The details that Zaslavsky specifically remembered were that plaintiff gave him a certified check for $10,000, which he then gave to the Harpers, that the title to the Dayton properties was put in plaintiff’s name only, and that he delivered the deed to plaintiff and Zimmerman, even though his usual procedure would have been to record the deed himself. Zaslavsky also testified that plaintiff and Zimmerman might not have recorded their deed in order to avoid receiving housing court citations. Zaslavsky explained that the practice in the neighborhood at the time when this transaction took place was to leave the former owner’s name on the deed when buying an owner-occupied building, because city building inspectors usually did not cite owner-occupiers for housing violations.

Plaintiff also testified in the case. He said that in October 1974, Zaslavsky told him about some property that was for sale for $10,000. Plaintiff and his brother, Zimmerman, decided to purchase the properties and, therefore, took a certified check for $10,000 to Zaslavsky’s office. The plaintiff and Zimmerman signed some documents, and in return they received the deed to the properties. After receiving the deed, plaintiff said that he and Zimmerman began performing repairs on the properties.

Plaintiff also stated that the deed to the Dayton properties was never recorded because he and Zimmerman wanted to correct some building code violations first and did not want to receive any citations before they could make the corrections. Plaintiff said that he had tried to obtain a copy of the certified check that had been given to the Harpers, but the bank informed him that it did not keep checks for more than seven years. In addition, the plaintiff testified that he was completely unaware of any problems regarding ownership of the Dayton properties until his brother died in 1986.

Reanna Smith, a tenant of 1707 N. Dayton since 1972, also testified for plaintiff. She said that Clifton Harper was her landlord from 1972 until October 1974, when Harper informed her that he had sold the building to plaintiff and Zimmerman. Following this conversation with Harper, Smith never again paid rent to Harper and instead paid the rent each month to plaintiff and Zimmerman. Smith also said that she had never seen any of the defendants at the building, nor had she ever paid any rent to them.

Plaintiff next called Dorothy Guy, the daughter of Clifton and Pearl Harper and a defendant in this case, as an adverse witness. She testified that her parents moved to Kentucky around November 1974 and purchased a home, which they paid for with cash. Her parents both died in Kentucky without ever returning to Chicago. Mrs. Guy said that she was appointed administrator of her father’s estate and also admitted that when she filed the inventory of his assets on January 24, 1986, she had said it was “a full true and complete inventory,” and she had not listed the Dayton properties in that inventory. In addition, Mrs. Guy stated that when she signed the final settlement for her father’s estate, she did not mention the Dayton properties in that settlement. She also testified that she had never discussed what had happened to the Dayton properties with her father and admitted that she never took any action regarding the properties after her father died, even though she had claimed in her answer to one of plaintiff’s interrogatories that Clifton told her in 1984 or 1985 that he still owned the Dayton properties and that he still had the deed to the properties. Finally, Mrs. Guy testified that she had never paid real estate taxes or insurance on the Dayton properties and also had never done any maintenance to the properties or collected any rent from the tenants of the properties.

Larry Guy, Dorothy Guy’s son, was then subpoenaed by plaintiff to testify concerning an out-of-court statement that he had made. Larry Guy testified that he had, in fact, said that his father Roy told him that Clifton Harper had sold the Dayton properties for $18,000. However, Guy claimed that his father had actually been referring to his aunt’s house in Kentucky and he had mistakenly thought that his father was referring to the Dayton properties.

The plaintiff also presented evidence that Zaslavsky had ordered a title commitment on the Dayton properties on October 17, 1974, which named plaintiff as the proposed insured. He introduced into evidence the tax bills and receipts for the Dayton properties, the can-celled checks and check stubs for the payments related to the Dayton properties, and a rent receipt book which included rents received from the Dayton properties. Furthermore, the plaintiff proffered insurance policies that he and Zimmerman had purchased on the Dayton properties which named himself and Zimmerman as the insureds. Finally, plaintiff introduced his tax returns from 1973 to 1986, which showed that he claimed a deduction on his income tax for depreciation on the Dayton properties beginning in 1974.

The defendants moved for a directed verdict at the close of plaintiff’s case. The trial court denied the motion. The defendants then recalled Dorothy Guy. Mrs. Guy, testifying on her own behalf, claimed that her father never said that he sold the Dayton properties. Mrs. Guy said her father gave her some personal papers, including a deed to the Dayton properties, in October 1985. She testified that she put the papers in a folder and then put the folder away in a chest and did not look at them again until the plaintiff’s attorney telephoned her regarding this lawsuit. She claimed the reason that she never looked in the folder was because she was very busy after her father died.

At the close of all the testimony, the trial court ruled for plaintiff, finding that plaintiff had proved his case by clear and convincing evidence. The court said that the evidence, in its view, supported a conclusion that plaintiff and Zimmerman purchased the Dayton properties and received the deed to the properties, but had failed to record the deed and then subsequently lost it.

On appeal, the defendants initially contend that judgment was erroneously entered in favor of plaintiff because plaintiff failed to prove that he had color of title which, the defendants say, the plaintiff was required to prove because his cause of action was a statutory cause of action under section 13 — 109 of the Illinois Code of Civil Procedure. (Ill. Rev. Stat. 1987, ch. 110, par. 13 — 109.) This statutory cause of action, defendants continue, required that there be some paper evidence purporting to convey title in order for the plaintiff’s action to succeed. The action here should have failed, the defendants assert, because the plaintiff admitted he had no paper evidence of title.

On the other hand, the plaintiff denies that the action here was a statutory action at all and, thus, he asserts that the failure to demonstrate paper evidence of color of title was irrelevant to the judgment in his favor. The allegations in his complaint concerning the statute were, he contends, merely superfluous and not necessary to the cause of action. Accordingly, plaintiff argues that those allegations can be disregarded, because his complaint set forth a valid cause of action to quiet title, which does not require paper evidence of color of title.

Courts will construe pleadings liberally when determining whether a complaint is adequate, in order to do substantial justice between the parties. (People ex rel. Scott v. College Hills Corp. (1982), 91 Ill. 2d 138, 145, 435 N.E.2d 463, 466.) If a complaint contains allegations that are not necessary to the plaintiff’s cause of action, a court will treat those allegations as mere surplusage, which does not destroy the sufficiency of the plaintiff’s complaint. (In re Estate of Lipchik (1975), 27 Ill. App. 3d 331, 334, 326 N.E.2d 464, 466; Taylor v. Hughes (1958), 17 Ill. App. 2d 138, 146, 149 N.E.2d 393, 397.) Moreover, following a trial and verdict, a reviewing court will attempt to construe a pleading as sufficient to state a cause of action, rather than as failing to allege a cause of action. McBreen v. Iceco, Inc. (1956), 12 Ill. App. 2d 372, 380, 139 N.E.2d 845, 849.

Construing the pleadings in this case liberally, as we must, we find that plaintiff’s complaint did not allege a statutory cause of action, but set forth sufficient allegations of an action to quiet title. Although plaintiff did cite to section 13 — 109 of the Illinois Code of Civil Procedure in his complaint, we believe this section of the complaint was mere surplusage, which this court can simply disregard. We find that the remainder of plaintiff’s complaint alleged sufficient facts in support of an action to quiet title and, consequently, the plaintiff’s failure to prove color of title was, as plaintiff argued, irrelevant to the trial court’s verdict.

Interrelated to this issue, the defendants allege in their second argument on appeal that since the plaintiff failed to prove color of title, which the defendants, as stated, claimed was the only cause of action set forth in plaintiff’s complaint, the trial court erroneously entered judgment for plaintiff on a theory not contained in the pleadings. Defendants assert that the plaintiff in effect attempted to amend his complaint during closing argument since he had conceded in his argument that there was no color of title in this case, but nonetheless continued to claim that his pleadings were still valid. Conversely, the plaintiff argues that there was no new or amended theory and that his theory of the case was clearly set forth in the pleadings as an action to quiet title.

Inasmuch as we have found that plaintiff’s reference to color of title in his complaint was mere surplusage and that the complaint stated a valid action to quiet title, we do not find that the trial court entered judgment for plaintiff based on a theory not contained in the pleadings. The allegations of a complaint are sufficient to state a cause of action if they reasonably inform the opposite party of the claim against him. (College Hills Corp., 91 Ill. 2d at 145, 435 N.E.2d at 467; Estate of Lipchik, 27 Ill. App. 3d at 334, 326 N.E.2d at 467.) Plaintiff’s complaint here clearly set forth sufficient facts to appraise the defendants of the case against them. The heading of the plaintiff’s complaint said that it was a complaint “To Quiet Title to Real Estate.” The complaint then alleged that the plaintiff and Zimmerman purchased the Dayton properties for $10,000 from the Harpers, paid all expenses on the properties from the time they purchased the properties, lost the deed to the properties, and then concluded the allegations by requesting that the court declare plaintiff the rightful owner of the properties. Such allegations are sufficient to state a cause of action to quiet title and, therefore, the trial court properly entered judgment for plaintiff based on that cause of action.

In the defendants’ third issue on appeal, they argue that the trial court’s ruling for plaintiff was not supported by clear and convincing evidence. Specifically, the defendants contend that there was no evidence that a closing took place, no evidence of payment, and no evidence of the elements of the deed since none of the parties could recall who was named grantee in the deed.

In response, plaintiff concedes that one who claims under a lost deed must prove its existence by clear and convincing evidence, but argues that the evidence here overwhelmingly proved that he was the rightful owner of the Dayton properties. Plaintiff asserts that he provided adequate evidence of the contents, execution and delivery of the deed, as well as evidence of payment. Furthermore, plaintiff contends that the actions of the parties here following the alleged sale were also consistent with a finding that he and his brother did, in fact, purchase the properties from the Harpers.

The mere loss of a deed following execution and delivery will not deprive a party of title if that party offers evidence of the execution, delivery and loss of the deed. (Chicago Housing Authority v. Cooper (1958), 19 Ill. App. 2d 441, 445, 154 N.E.2d 308, 310-11.) Further, the question of whether there was delivery of the lost deed is a question of fact which may be shown by direct evidence or may be inferred from the acts and declarations of the parties. (Calcutt v. Gaylord (1953), 415 Ill. 390, 395, 114 N.E.2d 340, 343.) In addition, the trial court is in the best position to assess the credibility of witnesses when the testimony in a case is conflicting, and its ruling in such a case should not be disturbed on appeal unless it is against the manifest weight of the evidence. Scheduling Corp. v. Massello (1987), 151 Ill. App. 3d 565, 503 N.E.2d 806, 810; In re Marriage of Kaplan (1986), 149 Ill. App. 3d 23, 28, 500 N.E.2d 612, 616.

In this case, the trial court found that there was clear and convincing evidence that the deed to the Dayton properties was executed, delivered and then lost by the plaintiff and Zimmerman, and further found that the defendants failed to offer any evidence to the contrary. We do not believe this ruling was against the manifest weight of the evidence. There was testimony in the case concerning the contents, execution, delivery and consideration for the deed. The evidence supported the trial court’s findings that the plaintiff and Zimmerman did not record their deed so that it would appear that the Dayton properties were still owner-occupied; it was unlikely that the plaintiff and Zimmerman fraudulently claimed ownership of the properties here, since they depreciated the properties on their income tax returns and risked Federal penalties if they had been depreciating property that they did not own; the plaintiff and Zimmerman would not have paid all taxes on the properties, all the insurance for the properties, and also named themselves as the insured parties on the policies if they did not own the properties. Finally, the evidence clearly supported the trial court’s finding that Mrs. Guy’s failure to take any action regarding the Dayton properties following Clifton Harper’s death was inconsistent with her claim that her father retained ownership of the properties. Hence, although there were inconsistencies in the testimony of the witnesses and gaps in their recollection, we agree with the trial court that these inconsistencies did not destroy the credibility of the witnesses and were not sufficiently material to negate the plaintiff’s clear and convincing proof of ownership.

Defendants next contend that the trial court’s ruling was erroneous because it was contrary to the equitable doctrine of “unclean hands.” Defendants claim that the trial court should have applied the “unclean hands” doctrine because plaintiff’s reason for not recording the deed to the Dayton properties, viz., to avoid housing court, was unlawful. Plaintiff admits that his reason for not recording the deed was wrong, but argues that the “unclean hands” doctrine did not apply in this case because his conduct in not recording the deed was unrelated to the present action.

The purpose of the “unclean hands” doctrine is to protect courts of equity from assisting litigants in accomplishing their fraudulent or unlawful purposes, and not to protect the party raising the doctrine as a defense. (Carlyle v. Jaskiewicz (1984), 124 Ill. App. 3d 487, 498, 464 N.E.2d 751, 759.) Courts do not favor the doctrine and apply it solely as a matter of discretion. (Carlyle, 124 Ill. App. 3d at 498, 464 N.E.2d at 760.) The doctrine was not intended to prevent courts of equity from doing justice between the parties in a particular case. (Carlyle, 124 Ill. App. 3d at 498, 464 N.E.2d at 759-60.) Thus, a court requires that the “unclean hands” conduct must have been directed at the party raising the doctrine as a defense and must have involved the very transaction at issue before the court. Carlyle, 124 Ill. App. 3d at 498, 464 N.E.2d at 759.

Here, we agree with plaintiff that the “unclean hands” doctrine did not apply in this case because the alleged conduct was not directed at the defendants or even at the Harpers, but was directed towards avoiding housing court citations. Furthermore, the plaintiff’s alleged fraudulent failure to record the deed was, in any event, a separate transaction from the transaction between plaintiff, Zimmerman and the Harpers. Hence, we find that, under these circumstances, the trial court did not abuse its discretion when it did not apply the doctrine of “unclean hands.”

Lastly, defendants claim that the trial court erroneously admitted and relied upon certain evidence. First, defendants claim that the court erroneously admitted Larry Guy’s testimony regarding his conversation with his father because this testimony violated the hearsay rule. Second, defendants claim that the trial court erroneously admitted and relied upon plaintiff’s tax returns because the returns were hearsay and also were not probative of ownership of the Dayton properties.

An error in the exclusion or admission of evidence does not warrant a reversal when there is no prejudice or when the result in the case is the only result warranted by the rest of the evidence in the case. (Ford v. City of Chicago (1985), 132 Ill. App. 3d 408, 414, 476 N.E.2d 1232, 1237; Atkins v. Thapedi (1988), 166 Ill. App. 3d 471, 477, 519 N.E.2d 1073, 1077.) The party seeking reversal has the burden of establishing prejudice. (Atkins, 132 Ill. App. 3d at 477, 519 N.E.2d at 1077.) Here, the evidence overwhelmingly supported plaintiff’s claim of ownership. Further, defendants did not allege any facts to show how the admission of the evidence prejudiced them. The result that the trial court reached in this case would have been the same with or without the objected-to evidence in the trial court. Therefore, even if the trial court improperly admitted the evidence here, we find its admission was harmless error at most and does not warrant reversal.

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

Judgment affirmed.

MANNING, P.J., and O’CONNOR, J., concur.

       Justice Quinlan participated in this decision prior to his assignment to the sixth division.