author: JUSTICE LINN

text:
    COOK COUNTY MASONIC TEMPLE ASSOCIATION et al., Plaintiffs-Appellees, v. THE DEPARTMENT OF REVENUE, Defendant-Appellant.
    First District (4th Division)
    No. 81-1017
    Opinion filed February 25, 1982.
    Tyrone C. Fahner, Attorney General, of Chicago (Imelda R. Terrazino, Assistant Attorney General, of counsel), for appellant.
    Flanagan, Bilton & Brannigan, of Chicago (Thomas E. Brannigan, of counsel), for appellees.
   JUSTICE LINN

delivered the opinion of the court:

Plaintiff, Cook County Masonic Temple Association, is an unincorporated association that acts as the representative of all the individual Masonic Temple organizations in Cook County. The other 33 plaintiffs are the individual Masonic Temple organizations that are members of the Cook County Masonic Temple Association. These 33 plaintiffs each own the sites on which their respective temples are built.

The issue in this case is whether the properties with the temples on them were used for charitable purposes and were therefore exempt from real estate taxation in 1978 under the Revenue Act (Ill. Rev. Stat. 1977, ch. 120, par. 500.7). Defendant, the Department of Revenue, determined that the properties were not exempt. On review under the Administrative Review Act (Ill. Rev. Stat. 1977, ch. 110, par. 264 etseq.), the circuit court of Cook County reversed the Department’s finding and held that the properties were exempt. The Department has appealed to this court.

We affirm.

Rackground

The corporate charter of each Masonic Temple organization states that the primary purpose of the organization is to promote and conduct charitable, educational, and religious activities. The Masonic Temple Association maintains several charitable organizations in Illinois, among which are the Illinois Masonic Home for the Aged, the Illinois Masonic Medical Center, the Illinois Masonic Children’s Home, and the Illinois Masonic Nurses Training Scholarship Foundation. The exempt status of the properties on which the Masons provide their charitable services, such as the Home for the Aged or the Children’s Home, is not in question here. It is undisputed that the Masons raise and spend millions of dollars each year to operate their charitable organizations.

Each temple is used for the periodic meetings of the individual organization that owns it. One important purpose of these meetings is to foster the high ideals and morals of Masonry. The first and last parts of these meetings are rituals having a religious tone. The meetings are often used to admit new members who have completed the three required stages of study in Masonry principles. Potential members are often tested to determine whether they have completed the studies for each stage leading to membership.

The most important business of each temple, discussed at each meeting, is the raising of money for charitable activities. The Masons not only support their own established charitable organizations but also respond to one-time requests for charitable contributions from other local, State, or national organizations.

Donations to support the Masons’ charitable activities are often solicited at both official meetings and social functions held at the temples. The Masons have no other program, such as mail solicitation, to raise funds; 90 to 95% of the money which supports the Masons’ charities is raised at the meetings and social functions in the temples.

Besides using the temples for meetings and fund raising, Masons also use the temples for educational activities involving the children of members. When not using it for Mason business, each organization allows civic and religious organizations to use its temple, usually without charge. None of the temples makes a profit, and no profit-seeking organization is allowed to use the temples.

Each member of a temple organization is assessed $15 to $20 a year in dues, one dollar of which is turned over to Grand Lodge Charity Fund, the statewide charity fund of the Masons; the rest is used to pay for the utilities and maintenance and, until the year at issue in this case, the real estate tax bills of the temple. Individual members are not expressly required to donate additional funds for charity, though they usually do so. Social functions at the temples are not specifically restricted to fund-raising events, but this is usually done also, since the chartered purpose of the organizations is to support charitable activities.

Besides these activities, at the time this case was heard each temple was occasionally used as a center for blood donations, part of a new nationwide Masonic program. At the time of the hearing, only Masons and their immediate families were covered by the blood donations; however, the Masons’ goal is to expand the program so that every person in the country can be covered.

Based on the foregoing undisputed facts, the Department of Revenue determined that the temple properties were not exempt from real estate taxes. The circuit court of Cook County reversed and determined that the properties were exempt.

Opinion

I

The issue before us is not whether the Department’s decision was against the manifest weight of the evidence. When the facts upon which a decision of tax exempt status rests are undisputed, whether property is exempt is a question of law. Illinois Central Gulf R.R. Co. v. The Department of Local Government Affairs (1981), 101 Ill. App. 3d 414; see Caterpillar Tractor Co. v. Department of Revenue (1963), 29 Ill. 2d 564, 194 N.E.2d 257.

Under section 19.7 of the Revenue Act (Ill. Rev. Stat. 1977, ch. 120, par. 500.7), to qualify for the charitable exemption, property must be owned by a charitable organization and must be used exclusively for charitable purposes. (Rogers Park Post No. 108 v. Brenza (1956), 8 Ill. 2d 286, 134 N.E.2d 292.) The parties agree that the properties in question were owned by charitable organizations within the meaning of the statute. The charter of each Masonic organization states that its primary purpose and activity is to do charitable works.

The dispute in this case involves whether the temples were used exclusively for charitable purposes. “Exclusively used” has been held to mean that the primary use of the property must be charitable. Though the property has other incidental uses, it will still qualify for the exemption as long as those uses are not for profitable purposes. People ex rel. Nordlund v. Association of the Winnebago Home for the Aged (1968), 40 Ill. 2d 91, 237 N.E.2d 533.

The Department argues that the primary use of the temples was to provide a meeting place for the Masons to carry on the ideals and morals of Masonry, which is not a charitable purpose. Plaintiffs argue that the temples were primarily used to raise funds for the Masons’ charitable activities, and all other uses were incidental. We agree with the Masons.

The Department’s argument depends on the interpretation of three Illinois Supreme Court cases decided in February and April 1932. The first case was People ex rel. Nelson v. Rockford Masonic Temple Building Association (1932), 348 Ill. 567, 181 N.E. 428, which also involved the exempt status of property with a Masonic Temple on it owned by a Masonic lodge organization. Under that organization’s charter, its primary purpose was not to promote and do charitable works but to provide for the “ ‘mutual benefit and social intercourse of its members,’ ” and to carry on the ideals and morals of Masonry. (348 Ill. 567,569,181 N.E. 428, 429.) Because of its charter, the organization was found to have charity as an incidental purpose only. As a result, the court found the temple was not owned by a charitable organization and thus failed to meet the first requirement for the exemption.

The court in Rockford Masonic Temple Building Association also found that the property was not used primarily for charitable purposes. The evidence showed only that the temple was used as a meeting place where the members could carry on the ideals and standards of Masonry, and as a club for social and fraternal purposes. No evidence that indicated the temple was used to raise money for charity was presented.

The second decision, People ex rel. Nelson v. Rockford Lodge No. 64 (1932), 348 Ill. 528, 181 N.E. 432, involved a lodge owned by a local order of Elks. The Elks’ charter stated that the order was organized to promote “ ‘the mutual benefit and social intercourse’ ” of its members, and not for charitable purposes. (348 Ill. 528, 533, 181 N.E. 432, 433.) As a result, the local order of Elks was also found not to be a charitable organization, and thus it failed to meet the first requirement for the charitable exemption.

The court in Rockford Lodge No. 64 also found that the property was not used primarily for charitable purposes. The evidence showed that the building was not used for profit and was often used rent-free by other charitable organizations. However, the evidence showed that the lodge’s bowling alleys, locker rooms, dining room, pool tables, and cigar and candy stands were used daily for the convenience and entertainment of its members. Thus, the court found that the primary use of the lodge was not charitable.

The third case, People ex rel. Thompson v. Dixon Masonic Building Association (1932), 348 Ill. 593, 181 N.E. 434, involved a Masonic Temple. The charter of the local Masonic organization that owned the temple was not in evidence, and the court did not reach the issue of whether the local organization was a charitable organization.

The court found that the property was not used primarily for charitable purposes. The evidence showed that the temple, although used as a meeting place for the members to carry on the principles of Masonry, also had a library and a club room used for playing cards and billiards. Other organizations often used the temple for banquets and social functions. No evidence showing the temple was used to raise funds for charity was presented.

The facts in the present case are easily distinguishable from the three supreme court decisions. To begin with, each of the organizations in this case has a charter that shows the organization is primarily charitable and not fraternal. There is no question, therefore, that the owners of the property were charitable organizations. The meetings referred to in this case, although held to foster the principles of Masonry, were meetings of organizations which are primarily charitable and not primarily fraternal. There is no indication in this case that the temples have bowling alleys, pool tables, or other facilities for entertainment of the members. The record shows that the primary function of the temples is to bring members and others together for the purpose of raising funds for the Masons’ charitable works. At least 90% of all money spent by the Masons for charity is raised through the meetings and functions held at the temples. The Masons have no other way to solicit funds for charity besides usé of the temples. Obviously, the raising of money for charity is a charitable work. Besides raising funds, other charitable activities such as blood donations are carried on in the temples.

We believe that the evidence in this record supports the circuit court’s finding that the temples were used primarily for charitable purposes and that the other uses were incidental to this primary function of the local organizations. Thus, the circuit court correctly found the temple properties to be exempt from real estate taxation.

II

The Department also contends that the decision of the circuit court should be reversed and remanded because each plaintiff temple organization did not present specific evidence to show that its particular temple property was exempt. The Department contends the case should be remanded to take such evidence.

It is true that specific evidence about each temple was not presented. However, it is undisputed that the organization and operation of the temples are basically the same. At the Department proceedings witnesses were permitted to testify about their specific temples in the belief that the evidence was being presented to show how all the temples operated. Many of the witnesses belonged to numerous temple organizations. The Department acquiesced in the conduct of the proceedings. Now, the Department is arguing in essence that the proceedings it allowed were improper. Obviously, the proceedings were conducted as they were to prevent waste of time and money to both the plaintiffs and the Department. Evidence about each temple would have been repetitious. We believe that any issue concerning the absence of specific facts about each temple was waived by the Department by allowing the proceedings before it to be conducted as they were.

Accordingly, for the reasons noted, we affirm the decision of the trial court.

Affirmed.

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


source: Caselaw Access Project

author: JUSTICE O’CONNOR

license: Public Domain

text:
    ST. FRANCIS COURTS CONDOMINIUM ASSOCIATION, Plaintiff-Appellee, v. THE INVESTORS REAL ESTATE et al., Defendants-Appellants.
    First District (1st Division)
    No. 81-1672
    Opinion filed March 1, 1982.

      Beryl A. Birndorf, of Chicago, for appellants.
    James G. McConnell of Rooks, Pitts, Fullager & Poust, of Chicago, for appellee.
   JUSTICE O’CONNOR

delivered the opinion of the court:

This is an appeal by defendants from the trial court’s order granting plaintiff’s motion for partial summary judgment and entering certain mandatory and negative injunctions against defendants. For the reasons stated below, we affirm.

Plaintiff, St. Francis Courts Condominium Association, is a not-for-profit corporation incorporated under the Illinois General Not For Profit Corporation Act. (Ill. Rev. Stat. 1979, ch. 32, par. 162a et seq.) Defendants, William Dec, doing business as the Investors Real Estate, Edward Niziol and Jean Pierre Gourguechon, were partners in the development of an apartment building into the St. Francis Courts condominium complex. Title to the building developed by defendants was held by Chicago Title & Trust Company, as trustee under Trust No. 1072963, dated June 1,1978. Defendants were the beneficiaries of the trust and also were vested with the power of direction.

The Declaration of Condominium Ownership (Declaration) for St. Francis Courts was recorded in the office of the recorder of deeds of Cook County on August 4, 1978. The plat recorded with the Declaration showed the building was to contain 73 apartments on three floors and 19 garage spaces in the basement. The ground floor area was shown to be part of the common elements, with the exception of one garden unit. Likewise, the basement area was to be part of the common elements, except for the garage spaces. A first amendment to the Declaration was recorded on January 5, 1979. None of the unit boundaries were changed by this amendment, and it is not at issue here.

On October 26, 1979, a second amendment was recorded. This amendment contained a new plat, which was dated April 11, 1979. This plat changed the boundary lines of five units. Easement space originally designated part of the common elements wás annexed to these five first-floor apartment units. These units were to be developed as duplex units. Construction on the first unit began in April 1979.

The controversy here involves the effectiveness of the second amendment to the Declaration and the defendant’s construction of duplex units in the basement. Plaintiff alleged in its second amended complaint that the second amendment to the Declaration was null and void because it was recorded after 24 units were conveyed to new owners. Thus, it ws alleged, the annexation of common elements in the basement was improper pursuant to the terms of the Declaration and sections 23, 27 and 31 of the Condominium Property Act. (Ill. Rev. Stat. 1979, ch. 30, pars. 323, 327, 331.) The construction work in the basement, then, was an encroachment upon the rights of all the common owners.

Upon the filing of plaintiff’s motion for partial summary judgment, defendants moved to strike the motion and the second amended complaint. Defendants asserted that plaintiff did not have standing to bring this action and that the second amendment, with the new survey, was valid. The trial court denied defendants’ motion, holding that plaintiff had standing to sue. The trial court then granted plaintiff partial summary judgment, declaring the second amendment null and void, ordering defendants to remove certain construction from the basement and further enjoining them from engaging in any future construction in the basement common area.

Defendants appeal, asserting (1) the trial court improperly determined that plaintiff had standing to bring this action and (2) the second amendment was properly adopted, becoming valid on the date of recording.

Defendants set forth two interrelated arguments in support of their contention that plaintiff lacks standing to bring this action; first, the Condominium Property Act (Act) (Ill. Rev. Stat. 1979, ch. 30, par. 301 et seq.) does not give plaintiff power to bring this action in matters involving the common elements and, second, plaintiff has no remedial interest in the cause of action asserted in its complaint. We disagree with defendants’ arguments.

There can be no doubt but that plaintiff, a not-for-profit corporation, may institute a legal action in its own name. Section 18.1 of the Act provides for incorporation of a not-for-profit corporation under the General Not For Profit Corporation Act (Ill. Rev. Stat. 1979, ch. 32, par. 163a et seq.) “for the purpose of facilitating the administration and operation of the property.” (Ill. Rev. Stat. 1979, ch. 30, par. 318.1.) The General Not For Profit Corporation Act vests in the board of directors of a not-for-profit corporation power to sue on behalf of the corporation in the corporation’s own name. (Ill. Rev. Stat. 1979, ch. 32, pars. 163a4, 163al6.) Similarly, section 18.3 of the Act provides that the unit owners’ association shall have the powers specified in the General Not For Profit Corporation Act whether nor not the association is incorporated. Ill. Rev. Stat. 1979, ch. 30, par. 318.3.

The legislature has thus specifically authorized condominium associations to maintain legal actions on behalf and in the name of the association. (Board of Managers v. Beringer (1981), 94 Ill. App. 3d 442, 418 N.E.2d 1099.) Notwithstanding defendants’ argument to the contrary, the board of managers is empowered to exercise all the powers and duties of the association, including the operation, care and upkeep of the common elements. Ill. Rev. Stat. 1979, ch. 30, par. 318.4(a).

Defendants’ argument based on American Federation of Technical Engineers, Local 144 v. LaJeunesse (1976), 63 Ill. 2d 263, 347 N.E.2d 712, are incorrectly applied to this case. LaJeunesse held that unincorporated associations generally do not have legal capacity to sue. At the same time, the supreme court recognized that such a capacity to sue may be authorized by legislative action. (63 Ill. 2d 263, 266.) The contention that plaintiff has no remedial interest in this action is premised largely on the theory that the corporation does not have the power to bring an action in matters relating to the common elements. Defendants interpret section 9.1 of the Act (Ill. Rev. Stat. 1979, ch. 30, par. 309.1) as granting such power exclusively to the board of managers. Section 9.1 reads in part:

“The board of managers shall have standing to act in a representative capacity in relation to matters involving the common elements or more than one unit, on behalf of the unit owners, as their interests may appear.”

Defendants’ reasoning is based on Tassan v. United Development Co. (1980), 88 Ill. App. 3d 581, 410 N.E.2d 902. There, a class of owner-plaintiffs sued the developer for a breach of the implied warranty of habitability. The developer cited section 9.1 of the Act and made an argument which is the reverse of that presented before us; that is, only the board of managers had standing to bring an action on behalf of the condominium association. The court noted that for purposes of this action there was no contract between the developer and the association out of which to imply a warranty of habitability for the common elements. However, since it was the contract rights of each individual purchaser of a condominium unit that created the warranty, plaintiffs could properly assert their contract rights. 88 Ill. App. 3d 581, 596.

The court in Tassan continued, stating:

“# * ° If anything, it is the association who would have no standing in this action but for the fact that the amendment to section 9.1 of the Condominium Property Act apparently gives the association standing to assert the unit owners’ rights in the common elements. We find nothing in the Condominium Property Act that indicates an intent on the part of the legislature to transfer the unit owners’ contract rights to the condominium association.” (88 Ill. App. 3d 581, 596.)

It is argued by defendants that this statement by the court is inconsistent and, as such, the latter sentence, only, should be read to mean plaintiff has no remedial interest or rights in the common elements. Thus, it is concluded, plaintiff has no standing.

We do not find the court’s language in Tassan to be inconsistent. The court there found that the individual unit owners had individual contract rights to assert against the developer. Section 9.1 of the Act does not in any way deny an individual unit owner the right to assert an individual contract right.

Section 9.1 relates to the attachment of liens and payment of common debts to be shared by the individual unit owners. (Ill. Rev. Stat. 1979, ch. 30, par. 309.1.) This section merely grants standing to the board of managers to act in a representative capacity in matters which relate to common elements or more than one unit. It is obvious, then, that a board of managers would have a remedial interest when asserting the rights of the common owners in such actions.

This grant of standing to the board of managers to protect the common interests of the unit owners is not confined to section 9.1. The board of managers, which is authorized to exercise the powers and duties of the association, is specifically charged with the operation, care and upkeep of the common elements. (Ill. Rev. Stat. 1979, ch. 30, par. 318.4(a).) Similarly, section 18.3 provides:

® 0 The Association shall have and exercise all powers necessary or convenient to effect any or all of the purposes for which the association is organized, and to do every other act not inconsistent with law which may be appropriate to promote and attain the purposes set forth in this Act or in the condominium instruments.” (Ill. Rev. Stat. 1979, ch. 30, par. 318.3.)

It is clear that by this action plaintiff has asserted the common ownership rights of the individual unit owners in the basement area. We hold that plaintiff had standing to bring this action.

The second amendment to the Declaration was recorded by the trustee on October 26, 1979. This was done pursuant to a letter of direction signed by defendant beneficiaries which was received by the trustee on October 24, 1979. Affidavits submitted by defendants Niziol and Dec reveal that this letter of direction was adopted by them on April 12, 1979. At the time this letter was adopted, defendants, as beneficiaries of the land trust, were still the only owners of the St. Francis Courts building. Title to the first unit was not transferred to the first unit owner until June 3, 1979. When the second amendment was recorded, an additional 23 units had been conveyed to purchasers.

Defendants contend that the second amendment was valid and effective when recorded because it was properly adopted at the time when they, as beneficiaries, were sole owners. It was their intent, it is argued, that the Declaration be amended in April of 1979. However, due to the failure of their counsel, delivery of the letter of direction to the trustee was not until October 24, 1979. Finally, it is argued, the execution of the letter of direction with the intent to cause the trustee to execute and record the second amendment is the functional equivalent to defendants themselves executing the amendment.

We cannot accept this argument. The Condominium Property Act provides there will be no valid amendment of the Declaration until such amendment is recorded. (Ill. Rev. Stat. 1979, ch. 30, pars. 306, 326, 331.) Also, article III, paragraph 5, of the Declaration provides that no transfer of common elements shall be effective until an amendment has been recorded. The purpose of any recording act is to give persons the opportunity of ascertaining the status of title to property. Kovacevic v. City of Chicago (1977), 47 Ill. App. 3d 674, 365 N.E.2d 104; Donn v. Auto Dealers Investment Co. (1943), 318 Ill. App. 95, 47 N.E.2d 568, rev d on other grounds (1944), 385 Ill. 211.

Defendants’ letter of direction could not have served the functional equivalent of recording. From April 12, 1979, to October 26, 1979, there were no sources that a purchaser of a unit in St. Francis Courts could consult which would have informed them that the original plat had been changed to annex certain common areas of the basement to several existing units. Indeed, a disclosure statement required by the City of Evanston was filed in June 1979 which did not contain the amended plat. Included with this statement was the original plat, showing the basement area to be common elements.

The procedures used for amending condominium instruments are subject to section 27 of the Act. (Ill. Rev. Stat. 1979, ch. 30, par. 327.) That section requires an affirmative vote of 2/3 of those voting when the developer is not the only owner. Article XIX, paragraph 6, in the Declaration is even more stringent in this respect, requiring the approval of all the board of managers and three-fourths of the unit owners.

At the time of the recording of the second amendment, 24 of the 73 units in St. Francis Courts were occupied. To effect an amendment, defendants were bound to follow the provisions of the Act and the Declaration. There is no evidence in the record that these procedures were followed and thus the attempted amendment is ineffective. Stuewe v. Lauletta (1981), 93 Ill. App. 3d 1029, 418 N.E.2d 138.

The trial court properly found that the modified plat in the proposed second amendment was null and void. The construction in the basement area is an encroachment on the common property rights of the unit owners in the common elements. (Ill. Rev. Stat. 1979, ch. 30, par. 323.) The order directing removal of this construction was proper. Ariola v. Nigro (1959), 16 Ill. 2d 46, 156 N.E.2d 536; Nitterauer v. Pulley (1948), 401 Ill. 494, 82 N.E.2d 643; Taubert v. Fluegel (1970), 122 Ill. App. 2d 298, 258 N.E.2d 586.

For the foregoing reasons, we affirm the order of the circuit court of Cook County granting partial summary judgment in favor of plaintiff, declaring the second amendment null and void, ordering the removal of the construction from the basement area and enjoining defendants from any future construction in the basement common area.

Affirmed.

GOLDBERG and McGLOON, JJ., concur.


author: JUSTICE HARTMAN

text:
    GIROLAMA BIUNDO, Adm’r of the Estate of Michele Biundo, Deceased, Plaintiff-Appellant, v. CHRIST COMMUNITY HOSPITAL et al., Defendants-Appellees.
    First District (2nd Division)
    No. 80-2340
    Opinion filed March 2, 1982.

      Leonard M. Ring and Associates, of Chicago (Leonard M. Ring and Judith E. Fors, of counsel), for appellant.
    Cassiday, Schade & door, of Chicago (John D. Cassiday and Bruce M. Wall, of counsel), for appellee Christ Community Hospital.
    Baker & McKenzie, of Chicago (Francis D. Morrissey, John T. Coleman, and John T. Rank, of counsel), for appellee Frank K. DeVincenzo, M. D.
   JUSTICE HARTMAN

delivered the opinion of the court:

This was a damage action brought against defendants, a physician and hospital, because of their allegedly negligent treatment of plaintiff’s deceased husband, Michele Biundo. Biundo was a patient at defendant Christ Community Hospital on February 22,1973, where he underwent a laminectomy performed by defendant, Dr. Frank DeVincenzo. On February 26, 1973, Biundo’s body was found at about 11 p.m. lying on a parapet over an entranceway below his hospital room window from which plaintiff claimed that decedent jumped or fell to his death.

Plaintiff attempted to show, during a jury trial, that Biundo, neglected by Dr. DeVincenzo and the hospital staff, was driven to jump or fall through the window by the excessive pain he experienced after his operation. Dr. DeVincenzo was granted a directed verdict at the close of plaintiff’s case, and the jury rendered a verdict for the hospital. Plaintiff appeals from judgments entered thereon and from the trial court’s denial of her motion to amend her complaint. She raises as issues whether: the trial court erred in directing a verdict in favor of Dr. DeVincenzo; allegedly repeated misconduct by the hospital’s attorney denied plaintiff a fair trial; the jury was properly instructed; and the trial court erred in denying plaintiff leave to amend her complaint. For the reasons which follow, we affirm.

Material evidence relevant to the issues raised on appeal will be discussed in the body of the opinion.

I

Dr. DeVincenzo’s motion for a directed verdict was granted on the ground that no breach of any standard of medical care had been established by plaintiff as to him. Plaintiff produced an expert witness, Dr. Adolph Gerol, a neurosurgeon, who testified that defendant hospital failed to exercise the standard of care applied by similar hospitals in the community. Dr. Gerol also testified “very surprisingly,” according to plaintiff, that defendant doctor was guilty only of an “error in judgment.” Plaintiff argues that in directing a verdict for Dr. DeVincenzo the trial court erred'because: the standard of care established for the hospital by Dr. Gerol should apply to Dr. DeVincenzo; plaintiff was not required to introduce expert medical testimony to establish a breach by the doctor of a standard of care in any event, citing Gorman v. St. Francis Hospital (1965), 60 Ill. App. 2d 441, 208 N.E.2d 653, and Anderson v. Martzke (1970), 131 Ill. App. 2d 61, 266 N.E.2d 137; and, Dr. Gerol’s testimony that Dr. DeVincenzo used reasonable skill for a neurosurgeon is not dispositive, since that conclusion was based upon Dr. Gerol’s belief that Dr. DeVincenzo had not been informed of some of Biundo’s behavior, which determination is properly a jury question. We disagree.

The issue of medical malpractice in this case revolves around whether defendant doctor took action appropriate to his knowledge of his patient’s condition. The expert’s knowledge of the situation was conveyed to him through plaintiff’s articulation of a hypothetical question containing what she deemed to have been the essential facts. It was upon this question that Dr. Gerol’s opinion was based and on which he concluded that defendant doctor had met the professional standards of care of a neurosurgeon. That answer is claimed to have surprised plaintiff. Dr. Gerol’s explication of his opinion was tested by adding further facts to the hypothetical question; yet, he came to the same conclusion, adding that when defendant doctor observed decedent that night, the latter had been given seconal, a sedative, shortly before the visit, * ° and what the doctor saw was not what the nurses saw * * * a patient lying there quietly in bed.” Such testimony, without countervailing evidence adduced by plaintiff, was a sufficient basis upon which the trial court could properly direct the verdict. We find no error.

Plaintiff’s assertion that no expert opinion was necessary in order to have had the case submitted to the jury is without foundation. Unless the matter is within the common knowledge of the layman, expert medical testimony is necessary to establish a prima facie case, in order to show a want of care which caused the injury. (Kwak v. St. Anthony De Padua Hospital (1977),54 Ill. App.3d 719, 369 N.E.2d 1346; Graham v. St. Luke's Hospital (1964), 46 Ill. App. 2d 147, 196 N.E.2d 355.) The question posed by the instant case, namely, whether a reasonably skillful physician should have considered Biundo as a potential suicide risk, is much farther removed from the layman’s ken than the issues found in Gorman v. St. Francis Hospital and Anderson v. Martzke, on which plaintiff relies; it is one which requires expert testimony as an aid to the fact finders. Dimitrijevic v. Chicago Wesley Memorial Hospital (1968), 92 Ill. App. 2d 251, 259-60, 236 N.E.2d 309.

II

Plaintiff next argues she was prejudiced by improper conduct of counsel for the hospital. Some of the allegedly improper conduct included comments regarding the existence of a lawsuit against the hospital brought by one of plaintiff’s witnesses; allegedly inflammatory remarks made by counsel for the hospital, among which were previous court appearances by Dr. Gerol; and defendant’s statements regarding the toxicologist’s report. In each of the foregoing instances, however, no objection was made by plaintiff at trial and such conduct therefore cannot be reviewed on appeal. Mulvey v. Illinois Bell Telephone Co. (1973), 53 Ill. 2d 591, 598, 294 N.E.2d 689; Joynt v. Barnes (1979), 71 Ill. App. 3d 187, 204, 388 N.E.2d 1298.

Objections were made, however, to other episodes of alleged misconduct. One of those complained of was defense counsel’s argument to the effect that plaintiff sympathetically questioned co-defendant Dr. De Vincenzo in order to direct responsibility to the hospital; however, counsel for the hospital was entitled to draw inferences from the evidence which tended to show that the culpable party was no longer in the case. (Hopwood v. Thomas Hoist Co. (1966), 71 Ill. App. 2d 434, 443, 219 N.E.2d 76.) With regard to plaintiff’s objection to hospital counsel’s having improperly impeached his own witness, our examination of the transcript reveals that no impeachment was attempted; rather, counsel sought to refresh that witness’ recollection, which he had the right to do. (Vancil v. Fletcher (1967), 90 Ill. App. 2d 277, 232 N.E.2d 789.) Plaintiff also complains of the hospital’s cross-examination relative to her ownership of a building and to her employment. Objections to those questions were sustained and the jury was instructed to disregard them. The court granted plaintiff’s counsel all the relief he sought and her claim of prejudice must be rejected. See Baikie v. Luther High School South (1977), 51 Ill. App. 3d 405, 411, 366 N.E.2d 542.

III

Plaintiff next asserts the court committed error in giving certain jury instructions regarding the contributory negligence of decedent and of plaintiff because: no such evidence was presented; decedent was unable to comprehend the danger of his actions and was thus incapable of contributory negligence; and, contributory negligence of next of kin under the Wrongful Death Act (Ill. Rev. Stat. 1979, ch. 70, par. 2) does not bar recovery but simply precludes such heir from recovery. (Sheley v. Guy (1975), 29 Ill. App. 3d 361, 330 N.E.2d 567, aff’d (1976), 63 Ill. 2d 544.) Whether or not a mentally disturbed person is capable of contributory negligence is a question of fact for the jury, where, as here, decedent was never found mentally ill or incapacitated. (See De Martini v. Alexander Sanitarium, Inc. (1961), 192 Cal. App. 2d 442, 13 Cal. Rptr. 564.) As to plaintiff, under the facts presented, whether she should have contacted decedent’s doctor herself when he was in pain was also a question for the jury. We note that plaintiff’s instruction No. 26, drawn from Illinois Pattern Jury Instructions, Civil, No. 31.08 (2d ed. 1971), given to the jury, correctly reflects the law as set forth in Sheley v. Guy.

Plaintiff also argues that an instruction given regarding the duty of care of the hospital was improper in that it contemplated only the usual community practice rather than including consideration of administrative standards and bylaws, citing Darling v. Charleston Community Memorial Hospital (1965), 33 Ill. 2d 326, 211 N.E.2d 253. Darling does not require the presentation of such evidence, however. (Bosel v. Marriott Corp. (1978), 65 Ill. App. 3d 649, 654, 382 N.E.2d 587.) Further, plaintiff raised no objection at trial as to the standard of care instruction on the basis of Darling and proffered no alternative instruction; therefore, she has waived her objection on appeal. (Ill. Rev. Stat. 1979, ch. 110A, par. 239(b); Saldana v. Wirtz Cartage Co. (1978), 74 Ill. 2d 379, 385 N.E.2d 664.) Significantly, plaintiff questioned her own expert according to the standard set forth in the given instruction. Her assertion that the instruction improperly charged the jury to consider only the testimony of experts in its determination is also unavailing in view of a subsequent instruction given, which directed the jury to rely on its own observations and experiences. See Wood v. Mobil Chemical Co. (1977), 50 Ill. App. 3d 465, 475, 365 N.E.2d 1087.

IV

Finally, plaintiff argues the trial court erred in failing to allow her to amend her complaint after trial and before oral argument to include a survival count seeking damages for decedent’s pain and suffering prior to his death. Since the jury returned a verdict of not guilty as to the liability of the hospital, we see no relevance in this claimed error to the appeal. Further, amendment to pleadings should not be allowed after trial has begun regarding matters of which the pleader had knowledge at the time of the original pleading; plaintiff made no showing that the evidence of decedent’s alleged pain and suffering before his death was unknown to her prior to trial. (First National Bank & Trust Co. v. Sousanes (1978), 66 Ill. App. 3d 394, 384 N.E.2d 30; Blazina v. Blazina (1976), 42 Ill. App. 3d 159, 356 N.E.2d 164.) We find no abuse of the trial court’s discretion in denying amendment in this posture of the case. See Mundt v. Ragnar Benson, Inc. (1975), 61 Ill. 2d 151, 335 N.E.2d 10.

For the foregoing reasons, the judgments must be affirmed.

Affirmed.

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


author: PRESIDING JUSTICE WHITE

text:
    SHELDON GARBER et al., Plaintiffs-Appellants, v. HARRIS TRUST & SAVINGS BANK et al., Defendants-Appellees.
    First District (3rd Division)
    No. 80-2290
    Opinion filed March 3, 1982.

      Larry D. Drury, Ltd., of Chicago, for appellants.
    John F. McClure and Richard C. Gering, both of Arnstein, Gluck & Lehr, of Chicago, for appellee Sears Roebuck & Company.
    Keehn Landis, of Chapman and Cutler, of Chicago, for appellee Harris Trust & Savings Bank.

      Mayer, Brown & Platt, of Chicago (Robert L. Geltzer and Joseph C. Kaplan, of counsel), for appellee J. C. Penney Co., Inc.
    H. Blair White, Charles W. Douglas, and Michael C. Cook, all of Sidley & Austin, of Chicago, for appellee First National Bank of Chicago.
   PRESIDING JUSTICE WHITE

delivered the opinion of the court:

Plaintiffs, Gary L. Blank and Sheldon Garber, purporting to represent a class of credit cardholders, brought this action in chancery against defendants Harris Trust and Savings Bank (Harris Trust), Sears Roebuck and Co. (Sears), J. C. Penney Co., Inc. (Penney), and First National Bank of Chicago (FNB). The amended complaint alleges that Blank is the holder of credit cards issued by the defendants Sears, Penney and FNB. It also alleges that Garber is the holder of Master Charge credit cards issued by Harris Trust. In essence, the amended complaint asserts that each defendant had breached the provisions of its “cardholder agreement” document by changing the terms on which that defendant would offer to extend credit and that the alleged changes in the cardholder agreements were void for lack of consideration. These cardholder agreements are alleged to be contracts. In their prayer for relief, plaintiffs sought injunctive relief against the changes, money damages, and other relief. Defendants moved to dismiss the amended complaint. After hearing oral argument, the circuit court entered an order granting the motions to dismiss and dismissing the cause of action with prejudice. Plaintiffs appeal from this order.

The alleged modifications of the cardholder agreements at issue are as follows. In spring 1980, FNB announced that, effective July 1, 1980, it would begin charging a $20 annual fee for its VISA cards and would increase the minimum monthly payment from four % to five % on the outstanding balance in any VISA account. The changed terms only became effective if cardholders used their cards after June 30, 1980. Penney allegedly breached its cardholder agreement by initiating a policy whereby finance charges on future purchases would be assessed against a cardholder from the date of each purchase, regardless of the date on which he was billed. This policy allegedly modified provisions of the original Penney cardholder agreement which provided that a finance charge would be assessed against a cardholder from the date on which he was billed. The alleged modifications by Sears arose out of two notices which Sears sent to its cardholders. The first notice was sent to cardholders in January 1980, and it advised them of a change in the method of computing finance charges which took effect in March 1980. Pursuant to this change, purchases, payments and credits to a cardholder’s account during the current monthly billing period would be included in the computation of each day’s average daily balance, a figure used to compute finance charges. The notice gave the cardholder the options of discontinuing the use of his Sears credit privileges after the effective date of the change or of continuing to use his card, thereby accepting the proposed change. The second notice, sent to Sears cardholders in May 1980, advised them of a change (increase) in the minimum monthly payment schedule which took effect in July, 1980. This notice gave the cardholder similar options. The new schedule of minimum payments would apply to previous balances as well as to future purchases, if the card was used after this modification. The alleged modification complained of with respect to Harris Trust was that Harris had notified its cardholders that after May 1980, Harris would impose an annual fee upon the use of its card. This notice also informed cardholders that the changes announced would become effective after June 4, 1980, assuming that the cardholder uses his account on or after that date.

Plaintiffs assert that the cardholder agreements between the defendant credit card issuers and the plaintiff credit cardholders are binding contracts to continue to extend credit on the same terms and that there was no consideration to support the alleged modifications since a promise to do something which one is already obligated to do, i.e., to extend credit, does not constitute a valid consideration. Plaintiffs find the existence of a contract in the following manner. The applications and brochures, displayed and advertised by defendants, are invitations for an offer. The credit application submitted by a potential cardholder to one of the defendant credit card issuers constitutes an offer. Acceptance of this offer occurs when the issuer issues a credit card to the cardholder. A cardholder furnishes consideration to the issuer by providing the issuer with requested credit information and by allowing the issuer to commence a credit check prior to the issuance of the card.

Conversely, the card issuers argue that the issuance of a card constitutes an offer to extend credit, and that offer is accepted by use of the card. Upon such use, the cardholder agrees to all provisions in the cardholder agreement, and the agreement becomes a binding contract between the cardholder and the issuer. In other words, each use of the credit card constitutes a separate contract between the parties.

For the reasons stated below, we conclude that a contract was not formed at the time of the issuance of the credit card; that a separate contract is created each time the card is used according to the terms of the cardholder agreement at the time of such use; that the cardholder agreements were subject to modification at will; and that in any event, consideration was given for the modifications.

Although the parties do not refer us to any Illinois cases to support the position that cardholder agreements are standing offers to extend credit, support for this position is found in the case law of other jurisdictions. In City Stores Co. v. Henderson (1967), 116 Ga. App. 114, 156 S.E.2d 818, plaintiffs brought an action for tortious misconduct based upon an alleged refusal, without prior notice of credit revocation, of defendant’s clerk to extend further credit to one of the plaintiffs when she sought to charge purchases made at its store. In discussing the nature of the relationship between a cardholder and the issuer of the card, the court stated:

“The issuance of a credit card is but an offer to extend a line of open account credit. It is unilateral and supported by no consideration. The offer may be withdrawn at any time, without prior notice, for any reason or, indeed, for no reason at all, and its withdrawal breaches no duty — for there is no duty to continue it — and- violates no rights. Acceptance or use of the card by the offeree makes a contract between the parties according to its terms, but we have seen none which prevents a termination of the arrangement at any time by either party.” (116 Ga. App. 114, 120-21, 156 S.E.2d 818, 823.)

This language was quoted with approval in Novack v. Cities Service Oil Co. (1977), 149 N.J.Super. 542, 548, 374 A.2d 89, 92, affirmed (1978), 159 N.J.Super. 400, 388 A.2d 264. (See also 50 Am. Jur. 2d Letters of Credit §38 (1970).) In Novack, the plaintiff’s complaint alleged, in part, a cause of action grounded in contract for the allegedly wrongful termination of his Cities Service credit card. His argument was that defendant, by cancelling plaintiff’s credit card without notice and contrary to established intercompany procedures, breached an express term of the contract between them. In finding as a matter of law that no contractual relationship was created by the issuance and receipt of the credit card, the court stated:

“The conclusion that the issuance of a credit card does not create a contract includes an analysis of the concept of consideration. It is well settled that to be enforceable a contract must be supported by valuable consideration. [Citations.] Consideration involves a detriment incurred by the promisee or a benefit received by the promisor, at the promisor’s request. In the credit card relationship, neither status is created. The holder of the card (promisee) is free to cancel or not use it, and has gratuitously received an opportunity to purchase without incurring any detriment. Additionally, there does not appear to be any benefit bargained for or received by the issuing company (promisor). Lacking consideration, the credit card account is, as stated in City Stores, a continuing offer to purchase which may be withdrawn by either party at any time.” 149 N.J. Super. 542, 548-49, 374 A.2d 89, 92.

Thus the prevailing view in this country is that the issuance of a credit card is only an offer to extend credit. There is no persuasive reason, under the circumstances presented in the instant appeal, for swaying from the accepted position that the issuance of a credit card does not create a contract. We therefore conclude that defendant credit card issuers could terminate or modify the terms of their offers to extend credit as to future transactions. Once a credit card issuer withdraws its offer, a cardholder cannot compel it to extend credit to him in accordance with the terms of that offer.

Plaintiff relies primarily upon Steinberg v. Chicago Medical School (1977), 69 Ill. 2d 320, 371 N.E.2d 634, as support for his theory that a contract is formed at the time of issuance of a credit card. In Steinberg, the plaintiff received a catalog and submitted an application and fee to the defendant medical school. He was rejected. He then filed a class action against the school alleging that the school failed to evaluate his application and those of other applicants according to the academic criteria in the school’s catalog. The supreme court held that the allegations of the complaint stated a cause of action for breach of a contract to appraise applicants according to those criteria. The court concluded that the tender of the application and payment of the fee was an offer to apply; that acceptance of the application and fee constituted acceptance of an offer to apply under the established criteria; and that the application fee was sufficient consideration to support the agreement between the applicant and the school. Steinberg might be applicable if plaintiffs had alleged that the card issuers evaluated their applications for credit in a manner contrary to that set forth in the credit application. However, that is not the case. The case at bar involves modifications of the terms of offers to extend credit. Steinberg involved no such modifications and is therefore inapposite.

Defendants-appellees make other convincing arguments in support of the decision of the circuit court.

First, an argument was made that even if the parties to the cardholder agreement had intended it to be a contract, the agreement would be unenforceable for want of mutuality of obligation. Mutuality of obligation is not essential to the validity of a contract. However, where there is no other consideration for a contract, the mutual promises of the parties constitute the consideration, and these promises must be binding on both parties or the contract fails for want of consideration. (Armstrong Paint & Varnish Works v. Continental Can Co. (1921), 301 Ill. 102, 108, 133 N.E. 711; Higbie v. Rust (1904), 211 Ill. 333, 337, 71 N.E. 1010; Gardiakos v. Vanguard Communications, Inc. (1976), 38 Ill. App. 3d 937, 939, 350 N.E.2d 210.) If there is any other consideration for the contract, mutuality of obligation is not essential. (Armstrong Paint & Varnish Works v. Continental Can Co. (1921), 301 Ill. 102, 108.) Here, the cardholder plaintiffs did not give consideration for the alleged promise to extend credit in the future. Their argument that providing requested credit information and allowing the issuer to commence a credit check constitutes consideration is unpersuasive. For a performance or a return promise to constitute consideration, it must be bargained for. “A performance or return promise is bargained for if it is sought by the promisor in exchange for his promise and is given by the promisee in exchange for that promise.” (Restatement (Second) of Contracts §71 (1981); 17 C.J.S. Contracts §74 (1963).) The act which constitutes the consideration generally must be at the instance of the promisor, and must be regarded by the parties as consideration. (17 C.J.S. Contracts §74 (1963); see Bartlett v. Lauff (1933), 271 Ill. App. 551, 555-56.) Even assuming that defendant credit-card issuers promised to extend credit forever on fixed terms, no persuasive argument can be made that defendant issuers made such a promise in exchange for the cardholder’s disclosure of this credit history and his grant of permission for a credit check. In other words, such a performance by the cardholder was not sought by the issuer in exchange for an alleged promise to extend credit forever on fixed terms. Since we find no other consideration for the alleged contract, mutuality of obligation is essential.

Mutuality of obligation is lacking. Such mutuality exists when both parties to an agreement are bound. If both are not, then neither is bound. (Kraftco Corp. v. Koblus (1971), 1 Ill. App. 3d 635, 638, 274 N.E.2d 153.) “Mutuality of obligation is lacking, and neither party is bound to an executory contract where one of the parties has the right to arbitrarily terminate it.” (Gardiakos, 38 Ill. App. 3d 937, 939.) Under the cardholder agreements before this court, no obligation was imposed upon plaintiff cardholders until or unless a credit purchase was made, and they were under no obligation to make any purchase at any time. (See Streich v. General Motors Corp. (1955), 5 Ill. App. 2d 485, 126 N.E.2d 389.) We conclude that at the time of issuance of the credit cards, the cardholder agreements lacked mutuality of obligation. Thus, no valid enforceable contract came into existence at that time.

Secondly, an argument is made that even assuming that the cardholder agreement constitutes a contract, that contract is for an indefinite duration, and therefore, modifiable at the will of either party. This argument has particular application to the credit cards issued by defendants Sears and Penney. “Where no definite time is fixed during which an executory contract shall continue in force it is terminable at the will of either party.” (Gage v. Village of Wilmette (1924), 315 Ill. 328, 331, 146 N.E. 325; Steinberg v. Keepper-Nagel Real Estate Investments, Inc. (1973), 14 Ill. App. 3d 619, 622, 303 N.E.2d 46; Kraftco Corp. v. Koblus (1971), 1 Ill. App. 3d 635, 640.) Since the Sears and Penny cardholder agreements were of indefinite duration, if they constituted contracts, they were terminable at will. A contract terminable at the will of either party can be modified at any time by either party as a condition of its continuance (Swalley v. Addressograph Multigraph Corp. (7th Cir. 1946), 158 F.2d 51, 54, cert, denied 330 U.S. 845, 91 L. Ed. 1290, 67 S. Ct. 1086; see also Gebhard v. Royce Aluminum Corp. (1st Cir. 1961), 296 F.2d 17, 19; Flint v. Youngstown Sheet & Tube Co. (2d Cir. 1944), 143 F.2d 923, 925), and therefore, the cardholder agreements in question could be so modified. Thus, to the extent that the cardholder agreements were executory, they could be modified by either party. The defendant retail credit card issuers, in changing the terms governing card use, were merely exercising that right.

Thirdly, defendants FNB, Harris Trust and Penney argue that the challenged modifications were expressly allowed by provisions in their cardholder agreements. FNB points to “change of terms” and “cancellation” provisions in its current cardholder agreement. Respectively, these provisions provide that FNB can change the terms of the agreement if a notice requirement specified in the agreement is satisfied and that FNB can cancel a cardholder’s account, refuse to allow further transactions, or revoke the credit cards at any time. The cardholder agreement also provides for cancellation by the cardholder. FNB also notes that its cardholder agreements contained these or similar provisions prior to the time it allegedly issued a card to plaintiff Blank. Penney refers us to the application and agreement which plaintiff Blank signed and submitted to it. That agreement expressly provides that Penney has the right to amend the agreement with respect to future purchases and to limit or terminate the cardholder’s credit card privileges as to future purchases. Harris Trust points to a provision in its cardholder agreement which provides that either the financial institution or the cardholder may terminate this agreement and revoke the card at any time as to advances or loans after such termination. Plaintiffs do not dispute that the agreements containing these provisions are the agreements governing this case.

Assuming again that the cardholder agreements themselves constitute a contract between card issuer and cardholder, we conclude that the cardholder agreements were terminable at will by virtue of their cancellation provisions, and therefore, that the agreements could be modified at any time as to future transactions. “Contractual provisions providing for termination of an agreement are generally enforceable according to their terms.” (S & F Corp. v. American Express Co. (1978), 60 Ill. App. 3d 824, 829, 377 N.E.2d 73.) As stated in Brown v. Federal Life Ins. Co. (1933), 353 Ill. 541, 187 N.E. 484:

“Parties to a contract may cancel it at any time by mutual consent, and there is no reason why they may not agree in advance that the contract made by them shall cease to be binding at any time, at the option of either or both of them, if there is, in fact, a valid contract made by them.” (353 Ill. 541, 545.)

Thus, the cardholder agreements in question were terminable at the will of the card issuer. Following the reasoning above with respect to contracts of indefinite duration, we conclude that the cardholder agreements of FNB, Harris Trust and Penney, if contracts, could be modified at any time by the card issuers as a condition of continuance. See Swalley v. Addressograph Multigraph Corp. (7th Cir. 1946), 158 F.2d 51, 54, and cases cited above.

The cardholder agreements of FNB and Penney discussed under this point, as noted, also contained “change of terms” provisions. These provisions merely express what the card issuer has the right to by virtue of the agreement being terminable at will. We see no good reason why such provisions should not be enforced according to their terms, assuming the existence of a valid contract.

Furthermore, assuming that the cardholder agreements are contracts, we conclude that the modifications of those agreements by these credit card issuers were supported by valid consideration. Since the cardholder agreements are terminable at will, the card issuers were under no obligation to extend credit in the future. “Any act or promise which is of benefit to one party or disadvantage to the other is a sufficient consideration to support a contract.” (Steinberg v. Chicago Medical School (1977), 69 Ill. 2d 320, 330, 371 N.E.2d 634.) By extending credit on new terms, the card issuers gave consideration for the modified agreements.

The modifications made by FNB and Sears may have a retroactive impact on previously vested credit balances of cardholders, depending upon whether or not the cardholder uses his card after the effective date of the modification. The modifications only took effect if the cardholder used his card after that date. As noted above, case law from other jurisdictions provides that use of the card by the cardholder makes a contract between the cardholder and the issuer. Thus, any retroactive impact of these modifications on previous vested credit balances would affect valid contracts between the parties. However, the extension of credit after the effective date of the change would be consideration for such modification.

Beck v. First National Bank (Minn. 1978), 270 N.W.2d 281, is instructive. That case involved an action for usury under the National Bank Act. The plaintiff and the defendant bank were parties to a “checking-plus” agreement. Pursuant to that agreement, the bank authorized the plaintiff to create overdrafts in his checking accounts, and the overdrafts were to be treated as loans. Subsequently, the bank sent the plaintiff a notice which informed “checking-plus” customers that on a specified date the interest rate would be increased. Plaintiff had the choices of continuing his use of the checking plus plan at the increased rate or of discontinuing the plan. After the effective date of the change, the plaintiff continued to write checks in excess of his checking account balance, and the new rate was applied to his new advances, as well as his past balances. In analyzing these facts, the court stated;

“The checking-plus agreement between plaintiff and the Bank provided that it could be terminated by either party at any time by ‘giving written notice to that effect to the other party.’ The Bank’s September notice to plaintiff was in effect a notice of termination of the checking-plus agreement coupled with an offer to continue the present service at a new rate, * ” *. By writing new overdrafts, plaintiff accepted this offer and thus refinanced his existing balance under the new arrangement and the new law.” (270 N.W.2d 281, 287.)

We follow Beck, and find that plaintiff cardholders accepted the modification if they used their credit cards after the modifications.

Plaintiffs rely on Board of Education v. Barracks (1924), 235 Ill. App. 35, in arguing that consideration for an original contract does not attach to and support subsequent modifications. That case, quoting from other cases, stated that “doing or undertaking to do only that which one is already under a legal obligation to do by his contract is no consideration for another’s agreement.” (235 Ill. App. 35, 45.) This principle is inapplicable here. Either the cardholder agreements constituted offers to extend credit which could be withdrawn at any time, or if they constituted contracts, those contracts were terminable at will. Thus, the card issuers here had no pre-existing duty to furnish credit forever on fixed terms. Significantly, Barracks did not involve a contract terminable at will.

Plaintiffs also argue that they have not accepted the modifications. Most of the modifications had prospective effects only, but, as discussed above, some had retroactive effects. We feel that Beck disposes of this argument. They also rely on People ex rel. Sterba v. Blaser (1975), 33 Ill. App. 3d 1,337 N.E.2d 410, which stated “that no contract can be modified or amended in an ex parte fashion by one of the contracting parties without the knowledge and consent of the remaining party to the agreement.” (33 Ill. App. 3d 1, 9.) The case at bar, however, involves at most a contract terminable at will, and the law is clear that such a contract can be modified at any time as a condition of its continuance.

On a motion to dismiss, all well-pleaded facts are accepted as true (Steinberg v. Chicago Medical School (1977), 69 Ill. 2d 320, 329), and “a cause of action should not be dismissed on the pleadings unless it clearly appears that no set of facts can be proved which will entitle plaintiffs to recover.” (Fitzgerald v. Chicago Title & Trust Co. (1978), 72 Ill. 2d 179, 187, 380 N.E.2d 790.) Applying this standard, the circuit court correctly concluded that plaintiffs would not be able to prove any set of facts under the amended complaint which would entitle them to judicial relief.

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

Affirmed.

McNAMARA and RIZZI, JJ., concur.

       We note that there is no allegation that either plaintiff paid a fee for the issuance of his credit card(s) prior to the alleged modification.

       There is no dispute that defendant retail stores do not have any termination date on their credit cards. Plaintiffs argued below that defendant banks have a definite date of termination on their credit cards. An affidavit by Culver Floyd of Harris Trust indicates that its cards bear an expiration date. The record is not clear as to FNB. Since we find other adequate grounds to sustain the ruling of the circuit court as to these two defendants, we do not address this issue as to them. We note that with regard to these defendants the existence of an expiration date does not mean that the agreement must continue to that date.

       The Sears cardholder agreement also contained a provision for change of terms and cancellation, but Sears made no argument in its brief based on that provision.


author: JUSTICE WILSON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. NARVA DUNKLIN, Defendant-Appellant.
    First District (5th Division)
    No. 80-0641
    Opinion filed March 5, 1982.

      Frederick F. Cohn, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat and Casimir J. Bartnik, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE WILSON

delivered the opinion of the court:

Following a bench trial, defendant was convicted of murder (Ill. Rev. Stat. 1975, ch. 38, par. 9 — 1) and sentenced to 14 to 17 years’ imprisonment. He presents these issues for review on appeal: (1) the prosecutorial withholding of exculpatory evidence renders the jury waiver void; (2) the trial court erroneously excluded expert testimony; (3) the evidence was insufficient to sustain a conviction for murder; (4) the trial court erroneously excluded evidence of the reputation of the deceased; and (5) the trial court erroneously excluded testimony offered to enhance the credibility of a defense witness. We affirm. The relevant facts follow.

After defendant’s indictment for murder, defense counsel filed a discovery motion requesting the State to provide him with the criminal records of the State’s witnesses. The record discloses that the assistant State’s Attorney did not check directly with the Chicago Police Department or with Investigator Ridges who was assigned to the case, before responding to the motion. The State’s response to the defense’s motion stated “None known at this time.”

The assistant State’s Attorneys met with the investigators on the case prior to trial; however, it does not appear that prior convictions of State’s witnesses were discussed during that time. Approximately three or four days before the trial commenced, the prosecutors met with all the prosecution witnesses, and it was determined that it was possible that Larry Haynes had a prior conviction. An investigator was assigned to check whether Haynes had a prior conviction so such information could be available to the defense; however, the defense was not advised that a check was being made. At that time People ex rel. Fisher v. Carey (1978), 64 Ill. App. 3d 239, 380 N.E.2d 1150, was controlling and prohibited defense counsel from obtaining material by subpoena, as provided for by the rules of discovery.

After commencement of the trial and a waiver of the jury, defense counsel was advised that some witnesses might have convictions and advised by the State to subpoena the records. Police department records indicated that Haynes had prior convictions for burglary and theft.

At post-trial motions with new counsel, defendant asserted that the jury waiver was not knowingly made because a different decision would have been made if it had been known that Haynes, a prosecution witness, had prior convictions. He stated that he believed the jury would consider prior convictions differently from judges.

Defendant’s attorney at the commencement of trial, Fred Dry, testified that if he had known of Haynes’ record prior to the waiver, he would have advised defendant to go with the jury because such evidence would have diminished Haynes’ credibility. Defendant’s other counsel had no opinion on the effect of a prior conviction on a judge or jury.

Defendant’s motion to present expert testimony on the different effect that a prior conviction would have on a judge or jury was denied. The trial judge stated that such a difference was based upon speculation and that he would consider the impeaching of a witness in a bench trial.

Evidence concerning the sufficiency of the conviction indicated that a fight had occurred earlier during the day of the incident and defendant had interposed himself to stop the activities of violence. However, that evening defendant and his companion encountered the deceased and his friends. Defendant gave a gun to his companion to hold “at bay” deceased and some of his friends while he engaged in a fist fight with one of them. During this time, defendant’s companion and deceased exchanged words which led to the killing of deceased. Defendant and his witnesses presented an alibi defense.

Opinion

Defendant initially contends that his jury waiver was not made knowingly and intentionally because the State did not reveal prior to trial that one of its witnesses had a prior criminal conviction. He posits that he would not have waived the jury had this “exculpatory” evidence been known.

Supreme Court Rule 412(a) (vi) (73 Ill. 2d R. 412(a) (vi)) provides that upon written motion of defense counsel, the State is required to disclose “any record of prior criminal convictions, which may be used for impeachment, of persons whom the State intends to call as witnesses at the hearing or trial.” However, noncompliance with discovery requirements does not require reversal absent a showing of prejudice. (People v. Greer (1980), 79 Ill. 2d 103, 120, 402 N.E.2d 203.) Further, defendant’s attempt to raise a claim of prejudice must be founded on more than “mere conjecture.” People v. Lewis (1975), 60 Ill. 2d 152, 330 N.E.2d 857; People v. Buckhana (1981), 99 Ill. App. 3d 889, 425 N.E.2d 1297.

The State’s failure to discover and provide information on Haynes prior to trial reflects a lack of due diligence and constitutes a violation of Rule 412(a)(vi). However, we are not convinced that defendant was prejudiced by this nondisclosure which would make his jury waiver void. This is not a situation where the State failed to disclose potentially exculpatory evidence, despite defendant’s assertion. (See, e.g., People v. Nichols (1976), 63 Ill. 2d 443, 349 N.E.2d 40.) And we do not believe that this situation is analogous to the withholding of inculpatory evidence. See People v. Norris (1978), 62 Ill. App. 3d 228, 379 N.E.2d 80, where we found that the defendant was prejudiced when the prosecution was allowed to add two eyewitnesses to its witness list, after defendant had waived a jury in the belief that there were no eyewitnesses to the incident.

In this instance, Haynes was only one of several State witnesses who were at the scene of the incident and who testified at trial. Haynes’ record was admitted into evidence and was considered by the court in assessing his credibility as a witness. Even after the requested evidence was produced during trial, defense counsel made no objection or motion and the trial went on to its conclusion. Further, at the hearing on defendant’s motion for a new trial, it appears that defendant waived the jury, despite counsel’s advice, because he did not feel favorable towards the first panel of jurors, not because he felt the State’s witnesses were unimpeachable. The evidence at trial overwhelmingly sustains defendant’s conviction. Defendant asks us to speculate that Haynes’ prior criminal record would have affected his decision to waive the jury, and we believe this contention is too nebulous to constitute reversible error.

Defendant next posits that the trial court erroneously excluded relevant expert testimony that the effect of an impeachable conviction in discrediting a witness at trial is greater before a jury than before a judge. In denying the motion for a new trial, the court held that it was speculation that jurors would respond differently than judges to evidence of a witness’ prior conviction.

The evidence demonstrates that Haynes was only one of several witnesses testifying against defendant. As such, Haynes’ prior criminal record could have little or no impact at all on defendant’s decision to waive a jury and his subsequent conviction. Moreover, the trial judge indicated that he would consider the impeachment of a witness in a bench trial and would also instruct a jury to consider it as well. Even defendant’s two attorneys could not agree on the effect a prior conviction would have on a jury as opposed to a judge. Thus, the record does not persuade us to believe that a jury would have reached a different result based on Haynes’ record.

Further, in order to warrant a new trial based on new evidence, defendant has the burden of rebutting the presumption that the verdict is correct and to show that there has been no lack of diligence (People v. Miller (1980), 79 Ill. 2d 454, 404 N.E.2d 199), and be of such a conclusive character that it will probably change the result on retrial. (People v. Thompson (1980), 91 Ill. App. 3d 1111, 415 N.E.2d 648.) We are not convinced that “expert testimony” in this instance would have conclusively changed the result, and the trial court properly excluded such that it would be of little probative value to the trier of fact. See United States v. Watson (7th Cir. 1978), 587 F.2d 365.

Thirdly, defendant argues that the evidence was insufficient to sustain his conviction for murder under the accountability theory. He argues that the evidence at best demonstrates that he intended to have a fist fight with members of the deceased’s group and that the shooter was to hold the others “at bay.”

We note that a reviewing court may not substitute its judgment for that of the trier of fact on questions involving the weight of the evidence or the credibility of the witnesses and we will not reverse a criminal conviction unless the evidence is so improbable as to raise a reasonable doubt of guilt. People v. Manion (1977), 67 Ill. 2d 564, 578, 367 N.E.2d 1313, cert, denied (1978), 435 U.S. 937, 55 L. Ed. 2d 533, 98 S. Ct. 1513.

According to witnesses, defendant armed his companion and ordered him to watch the others while he and a member of the victim’s group engaged in a fist fight. Defendant’s companion and the deceased engaged in a dispute which led to the deceased’s death. Witnesses also indicated that after the victim was shot, defendant produced a gun and began shooting him. Whether the deceased died by defendant’s gun or defendant’s companion’s gun, defendant had armed his accomplice and is accountable for his actions. It is well settled that “ ‘* * * mere presence or negative acquiescence is not enough to constitute a person a principal[; however,] one may aid and abet without actively participating in the overt act and if the proof shows that a person was present at the commission of the crime without disapproving or opposing it, it is competent for the trier of fact to consider this conduct in connection with other circumstances and thereby reach a conclusion that such person assented to the commission of the crime, lent to it his countenance and approval and was thereby aiding and abetting the crime. * * ” (People v. Kessler (1974), 57 Ill. 2d 493, 498, 315 N.E.2d 29, cert, denied (1974), 419 U.S. 1054, 42 L. Ed. 2d 650, 95 S. Ct. 635.) The result of defendant’s actions in this instance led to the dispute which gave rise to the murder of La Ver n Tucker. Defendant was legally accountable for the conduct of his companion in connection therewith.

Defendant also maintains that the court erroneously excluded evidence of the reputation of the deceased and his friends for violence. Defendant attempted to offer evidence that deceased and his friends had a propensity for violence and had the reputation of “an enforcement gang in the community.” The court excluded this evidence on the basis that such evidence could only be admitted in a self-defense case where a foundation has been laid. See People v. Adams (1962), 25 Ill. 2d 568, 572, 185 N.E.2d 676.

It is clear from the record that defendant failed to lay any foundation for the reputation evidence as to the victim being the aggressor. Defendant testified that he was not at the scene of the shooting as he had been at his girlfriend’s house. The evidence disclosed that there had been an earlier altercation with some members of the deceased’s group; however, the incident which resulted in the shooting of the deceased occurred a number of hours later. Testimony at trial also revealed that defendant initiated the confrontation that led to the murder. As a result, the issue of self-defense was never properly raised and thus is irrelevant in this situation. People v. Allen (1972), 50 Ill. 2d 280, 278 N.E.2d 762; People v. Graves (1978), 61 Ill. App. 3d 732, 740, 378 N.E.2d 293; see also People v. March (1981), 95 Ill. App. 3d 46, 419 N.E.2d 1212.

Finally, defendant asserts that the trial court erred in excluding testimony offered to enhance the credibility of defense witness Sheila Burrell which was diminished by her initial reluctance to testify due to threats received by her and her family. This contention is unfounded as Burrell did not testify on defendant’s behalf indicating that he was at her home at the time of the shooting. Further, the trial court stated that his decision was based on the credibility of witnesses as they testified in court and that he gave no significance to the reluctance of any witnesses to testify. The court concluded that this reluctance based upon threats was too vague and really proved nothing. As such, Burrell’s initial reluctance was irrelevant, and the trial court properly concluded such. The determination of relevancy is in the sound discretion of the court. (People v. Travis (1981), 94 Ill. App. 3d 983, 419 N.E.2d 433.) Moreover, Burrell’s alibi testimony echoed that of her mother and defendant and was in direct contrast to the testimony of the prosecution witnesses. Thus, we conclude that the trial court did not abuse its discretion in excluding this testimony.

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

Affirmed.

LORENZ and MEJDA, JJ., concur.

       This case was later reversed by the Illinois Supreme Court in People ex rel. Fisher v. Carey (1979), 77 Ill. 2d 259, 396 N.E.2d 17.


text:
    CARLOS HERNANDEZ, a Minor, by Ramona Hernandez, his Mother and Next Friend, Plaintiff-Appellant, v. BERNARD LUKAS, Defendant-Appellee.
    First District (5th Division)
    No. 80-2871
    Opinion filed February 5, 1982.
    David S. Pochis, Ltd., and Alan D. Katz, both of Chicago, for appellant.
    Jerome H. Torshen, Ltd., and Garretson & Santora, both of Chicago (Jerome H. Torshen and Abigail K. Spreyer, of counsel), for appellee.
   JUSTICE WILSON

delivered the opinion of the court:

Plaintiff appeals from a judgment in favor of defendant upon a jury verdict finding him not guilty for plaintiff’s injuries. Plaintiff contends the judgment was against the manifest weight of the evidence; and defense counsel’s closing argument denied him a fair trial. The pertinent facts follow.

On April 24,1974, defendant was driving within the speed limit west on Logan Boulevard when he struck plaintiff, age 6, injuring him. The time of the occurrence was approximately 4:30 p.m. and the weather was clear and dry. In the vicinity of the occurrence, Logan Boulevard consists of two eastbound lanes and two westbound lanes. On either side of the boulevard are grassy, tree-lined parkways.

Defendant observed neighborhood children playing in the parkways on prior occasions. It was not, however, fixed in his mind that children played in the area where the accident occurred. He was traveling in the right-hand westbound lane, approximately two car lengths, or 30 feet behind another automobile (the Tensor car). He first noticed plaintiff when plaintiff was 20 to 30 feet in front of him and about three feet off the curb into the street. He immediately slammed on his brakes and swerved to the left to avoid plaintiff; however, his left front fender did come into contact with plaintiff near the dividing line between the eastbound and westbound lanes. At the point of impact, defendant’s vehicle was barely moving. There was no evidence of skid marks indicating excessive speed.

Plaintiff stated that he joined some other children playing ball on the south parkway. The ball had gone across the boulevard to the north parkway, and he went to retrieve it. He then started to run back across the boulevard, when he was struck.

The passenger in the preceding automobile, Maria Pawlas, testified that she and the driver first noticed plaintiff on the curb of the north parkway, 20 to 30 feet in front of their car. She asked the driver to move over to the next lane as it appeared that the child would dart into the street. When she turned around, she noticed that the child had moved into the street in front of the driver behind them.

During final argument, defendant’s counsel stated that:

“The plaintiff was injured six years ago. The defendant had been under jeopardy for six years.
PLAINTIFF’S COUNSEL: I’m going to object to that. There is nothing in the evidence that he has been under jeopardy.
THE COURT: Disregard both of those comments, and sit down, counsel.
DEFENDANT’S COUNSEL: The lawsuit has been pending here since the year 1975, so don’t throw it away. Do it right, do it fair. We can live with it. Thank you, ladies and gentlemen.”

In response, plaintiff’s counsel argued as follows:

“Now, with respect to the fact that this case has pended for five odd years, that’s neither Mr. Lukas’s fault nor the fault of the plaintiff; and I’m not too sure it’s anybody’s fault. But this case is being tried in its regular term. You file your lawsuit, and you wait. And we’ve waited, both of us for five years. So there is nothing strange or unusual.”

A verdict and a judgment thereon was entered for defendant. This appeal follows.

Opinion

Plaintiff argues that the jury’s verdict was contrary to the manifest weight of the evidence. It is his contention that the evidence discloses that defendant was negligent in maintaining a lookout and in the operation of his vehicle.

There is no issue as to the contributory negligence of the minor in this matter. (Illinois Pattern Jury Instruction, Civil, No. 11.03 (2d ed. 1971).) However, the mere fact of an accident does not raise the presumption of negligence on the part of the driver, even when he is aware that there are children in the vicinity. (Eleopoulos v. Dzakovich (1981), 94 Ill. App. 3d 595, 418 N.E.2d 980; Cusick v. Clark (1964), 45 Ill. App. 3d 763, 360 N.E.2d 160.) Plaintiff must still prove that defendant did not exercise due care. (Hayes v. Alsburg (1978), 72 Ill. 2d 560, 382 N.E.2d 239.) In Morrison v. Flowers (1923), 308 Ill. 189, 139 N.E. 10, our supreme court stated that:

“When a motor vehicle is proceeding along at a lawful speed and is obeying all the requirements of the law of the road and all the . regulations for operation of such machine, the driver is not, as a general proposition, liable for injuries received by a child who darts in front of the machine so suddenly that its driver cannot stop or otherwise avoid the injury * ” (308 Ill. 189, 197.)

Both Eleopoulos and Cusick are factually similar to the matter before us in that they involve instances where children ran into the street and suffered personal injuries as a result of being struck by the vehicles. In both of these cases, jury verdicts for defendants were upheld on appeal.

In the matter before us, the record shows that defendant was proceeding in lawful manner within the speed limit when the child ran into the street and was struck by defendant’s vehicle. Defendant slammed on his brakes and swerved to avoid hitting the child. Under those circumstances, it appears that defendant did all he could do to avoid hitting the child. This was an emergency situation thrust upon the driver too suddenly to avoid. (Whitehurst v. Bauer (1977), 45 Ill. App. 3d 462, 359 N.E.2d 1176.) A court of review will not substitute its judgment for that of the jury and set aside the verdict unless there is a lack of a reasonable basis for the verdict shown in the record. (Slowik v. Schrack (1979), 77 Ill. App. 3d 42, 395 N.E.2d 753.) Thus, we believe that the evidence was sufficient to support the verdict of the jury. As the appropriate inquiry in this matter is whether, considering all of the evidence in an aspect most favorable to the defendant, it so overwhelmingly favors plaintiff, that no contrary verdict could ever stand. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504; Holeman v. Smallwood (1980), 89 Ill. App. 3d 796, 412 N.E.2d 41.) We carefully considered the record and cannot conclude that an opposite conclusion is clearly evident.

Plaintiff’s next contention is that defense counsel’s statement to the jury that “defendant has been under jeopardy for six years” denied him a fair trial. Plaintiff asserts that this statement implies that defendant would suffer damage either to his liberty or estate. We disagree.

In determining whether counsel’s argument was cause for reversal, we must decide that such comment prejudiced the defeated party. (La Salle National Bank v. Wieboldt Stores, Inc. (1965), 60 Ill. App. 2d 188, 208 N.E.2d 845, appeal after remand (1968), 102 Ill. App. 2d 339, 243 N.E.2d 328. See also Clamage v. Shapiro (1977), 48 Ill. App. 3d 90, 365 N.E.2d 471.) Such an argument as now advanced by plaintiff’s counsel was made in Reeves v. Eckles (1969), 108 Ill. App. 2d 427, 248 N.E.2d 125, a case brought on behalf of a child to recover for injuries. In that case, defendant’s counsel stated, “They are trying to reach into my client’s pocket. * * * They want money. * ° (108 Ill. App. 2d 427, 432.) An objection was sustained; nevertheless, plaintiff’s counsel argued that the jury was led to believe that the defendants were not insured. The court concluded that the remarks were not reasonably subject to plaintiff’s interpretation, and in any event the trial court instructed the jury to disregard them. Likewise, in the instant case defense counsel’s remarks did not constitute an improper insinuation of noninsurance. Further, an objection was sustained and the jury was asked to disregard that comment and plaintiff counsel’s remark following his objection. Such action is generally sufficient to cure any alleged errors. People v. Carlson (1980), 79 Ill. 2d 564, 404 N.E.2d 233.

For the foregoing reason, we affirm the judgment of the trial court.

Affirmed.

SULLIVAN, P. J., and MEJDA, J., concur.