author: Mr. JUSTICE ADESKO

text:
    Joseph Grotz et al., Plaintiffs-Appellees, v. George V. Jerutis, Defendant-Appellant.
    (No. 57274;
    First District (4th Division) —
    July 11, 1973.

      Gorman and Drugas, of Chicago, (Robert J. Gorman, of counsel,) for appellant.
    Klein, Thorpe, Kasson and Jenkins, of Chicago, (Robert F. Peck, of counsel,) for appellees.
   Mr. JUSTICE ADESKO

delivered the opinion of the court:

Plaintiffs, Joseph Grotz, Anna Grotz and Margaret Strieder, brought an action for $17,000 loaned to defendant, George Jeratis, on an oral promise to repay. After a bench trial, judgment was entered in favor of the plaintiffs in the amount of $17,000 plus 6 per cent interest from the date of execution of the instruments. On appeal defendant contends:

1. Oral evidence is not admissible to vary the terms of the note; and

2. The evidence did not establish an oral promise to personally repay the loan.

The facts are as follows:

On April 12, 1966, plaintiffs lent defendant $7,000, evidenced by a bank money order payable to “George V. Jeratis”, and endorsed by “George V. Jerutis”. Defendant introduced into evidence a note dated April 11, 1966, signed by “George V. Jerutis, V. President, Region Invest. Prop. Developers Inc.”, promising to pay defendants $7,000. On October 6, 1966, plaintiffs lent defendant $10,000, evidenced by a bank money order payable to “George V. Jeratis” and endorsed by “George V. Jeratis”. Defendant introduced into evidence a note dated October 5, 1966, signed by “George V. Jeratis, Ex. V. President Region Invest. Property Developers Inc.” Defendant testified that he told plaintiffs that they were lending the money to the corporation and he also testified that all the corporate books and records were destroyed. Plaintiffs, Joseph Grotz and Margaret L. Strieder, testified that defendant told them to make out the checks to him personally. Plaintiffs further testified that they thought and were led to believe that the money was lent to defendant personally.

Defendant’s first contention on appeal was that oral evidence was not admissible to vary the terms of the note. This action was not on the note, but on defendant’s oral promise to repay money which he had borrowed. Defendant contends that the corporate promissory note is a complete defense to plaintiffs’ action.

Section 3 — 403 ( 3) of the Commercial Code provides:

“Except as otherwise established the name of an organization preceded or followed by the name and office of an authorized individual is a signature made in a representative capacity.” Ill. Rev. Stat. 19, ch. 2, par. 3 — 403 ( 3).

This section does not expressly exempt the authorized agent who signs in a representative capacity naming his principal from personal liability. There is nothing in the record to show that defendant was authorized to borrow money in the corporation’s behalf.

There is no presumption that a transaction was reduced to a single document and therefore if plaintiffs do not disclose such a document as a part of their case, defendant must produce the document and demonstrate that the document covers the precise transaction in issue before the parol evidence rule may be invoked. (Wigmore on Evidence, section 2447 ( 3d ed.).) There is nothing in the Illinois statute above about parol evidence. The evidence introduced by plaintiffs showed that the two checks were made out to the defendant personally and that the defendant personally cashed the checks. Defendant testified that the corporate records were destroyed and therefore he was unable to show that the corporation authorized him to borrow the money and that the money was used for corporate purposes. Plaintiffs Strieder and Joseph Grotz testified that they considered the loan a personal loan to the defendant and that they met the defendant many times at the Grotz’s home.

The trial court correctly allowed parol evidence to be introduced because the note was not a complete integration of the loan agreement. The parol evidence was properly admissible to show the intention of the parties.

Defendant’s second contention on appeal was that the evidence did not establish an oral promise to personally repay the loan. Plaintiffs, Joseph Grotz and Margaret Strieder testified that they considered the loans to be personal loans to the defendant and that the defendant led them to believe that he was personally borrowing the money. The two checks were made out to the defendant personally and the defendant personally cashed the checks. The corporate records were destroyed and no testimony of a corporate employee was introduced to corroborate defendant’s testimony that the money was used for corporate purposes. The evidence supports the trial court’s determination that defendant made an oral promise to personally repay the loan.

For the above reasons, the judgment of the Circuit Court of Cook County is hereby affirmed.

Judgment affirmed.

BURMAN, P.J., and DIERINGER, J., concur.


source: Caselaw Access Project

author: Mr. JUSTICE DIERINGER

license: Public Domain

text:
      In re Estate of Robert J. Appel, Deceased—Continental Illinois National Bank and Trust Company of Chicago, Petitioner, v. Bruce Appel et al., Respondents-Appellants—(Harold Miller et al., Respondents-Appellees.)
    (No. 57782;
    First District (4th Division) —
    July 11, 1973.

      Henry L. Mason, III, of Chicago, (Sidley & Austin, of counsel,) for appellants.
    Ira D. Schultz, of Chicago, (Sidney Z. Karasik, of counsel,) for appellees.
   Mr. JUSTICE DIERINGER

delivered the opinion of the court:

This is an appeal from a judgment of the Circuit Court of Cook County entered pursuant to a petition by the Continental Illinois National Rank and Trust Company of Chicago as executor of the will of Robert J. Appel, deceased. The petition sought instructions as to whether the burden of taxes on the estate of the deceased should be apportioned between the bequests set forth in Articles V and VI of the will, or whether the burden should be borne solely by the bequests set forth in Article VI.

The issue on review is whether the bequest in Article V is a specific bequest or whether it is part of the residuary estate which is subject to taxes and expenses.

Robert J. Appel died testate on January 7, 1971, in Chicago, Illinois, and his last will was admitted to probate on March 18, 1971. The relevant portions of the will are as follows:

“Article II
All inheritance, estate, and succession taxes (including interest and penalties thereon) payable by reason of my death shall be paid out of and be charged generally against the principal of my residuary estate without reimbursement from any person.
Article V
If my residuary estate shall contain any shares of stock of Carters Nationally Famous Jewelers, Inc., an Illinois corporation * * * I give and bequeath such shares, in equal parts to Harold and Rita Miller, jointly * * *.
Article VI
I devise and bequeath all my residuary estate, being all property wherever situated in which I may have any interest at -the time of my death not otherwise effectively disposed of, but not including any property over which I may have power of appointment, as follows * * V

The trial court determined that Article V was a specific bequest and the language “if my residuary estate shall contain any shares of stock” was descriptive of the rest of the bequest, and the gift was not part of the residuary estate defined in Article VI from which all debts, expenses and taxes were to be paid by the terms of Articles I and II.

The legatees under Article VI contend that Article V cannot be construed as being a specific bequest because it was not included in the list of specific bequests contained in Article IV, but those bequests were all monetary in nature and were not conditional in any way. On the other hand, the Article V bequest was a gift of a particular item, not money from a general fund, and it was conditioned on the existence of the item at the time of the testators death. It thus meets the definition of a specific bequest. In re Estate of Berman (1963), 39 Ill.App.2d 175; Allen v. National Bank of Austin (1958), 19 Ill.App.2d 149.

Second, the Article VI legatees maintain the language of the will does not indicate a specific bequest because the words “if my residuary estate shall contain any shares of stock” can only mean the testator intended to refer back to Articles I and II, thereby making clear that for purposes of taxes and expenses the stock was to be viewed as included within the residuary estate. They argue that to ignore the reference to the residuary estate would violate the basic principle of testamentary construction that the testator’s intention must be gathered from the will as a whole and every word must be considered unless manifestly meaningless. Evans v. DeBruler (1964), 49 Ill.App.2d 35.

The Article VI legatees further contend that not including the Article V bequest in the taxable residuary estate results in a violation of the basic principle that words occurring more than once in a will should be given the same meaning throughout unless the intention to use the words in a different sense is clear and beyond question. (Abrahams v. Sanders (1916), 274 Ill. 452.) The term “residuary estate” is used four times in the wiH. In Articles I and II it describes the assets from which taxes and expenses are to be paid. In Articles V and VI it describes assets from which bequests are to be made. They assert that nothing in the wiH indicates the term was used in Article V in a sense different from its meaning in the three other articles of the wiH and characterize the language at the beginning of Article VI where the residuary estate is defined as “aU property * ° * not otherwise effectively disposed of’ as being mere “boüerplate.”

These arguments concerning the construction of the language are not persuasive. The Article VI legatees contend every word must be considered unless manifestly meaningless, yet they choose not to give any effect to the definition of residuary estate found in Article VI. Furthermore, they assert the term “residuary estate” must be construed the same way in each place it is used, and ignore the explicit definition in Article VI which necessarily excludes the Article V bequest because it includes only that property “not otherwise effectively disposed of.” The Article VI legatees maintain the only reason for the term “residuary estate” in Article V is to make clear the appropriate placement of the tax burden; however, if the testator had intended this result, he could easily have stated it in an explicit manner. We believe the testator included the term in Article V merely to identify the particular asset rather than indicate an apportionment for taxes and expenses.

Third, it is contended that any doubt about the testator’s intent should be resolved against relieving the stock of its proportionate share of taxes and expenses. In the case of In re McDonalds Estate (1942), 314 Ill. App. 148, cited by the Article VI legatees, the court held that inheritance taxes are to be paid by each legatee and devisee under the will, and if the testator intends to shift the burden, he must do so by clear language. That case is not applicable here because the testator clearly stated in Article II that his residuary estate should pay the taxes.

Finally, the Article VI legatees assert that if the entire tax burden is placed on Article VI, the bequests in that Article would amount to little more than a "gracious but futile gesture,” and there should be an evidentiary hearing to show the testator’s relationship to members of his family who are legatees under Articles V and VI. We believe the language of the will indicates the testator intended to make a specific bequest of the stock to the named beneficiaries in Article V, and an evidentiary hearing would not add anything to that determination.

For these reasons the judgment of the Circuit Court of Cook County is affirmed.

Affirmed.

BURMAN, P. J., and JOHNSON, J., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Henry West, Defendant-Appellant.
    (No. 56402;
    First District (4th Division) —
    July 11, 1973.

      James J. Doherty, Public Defender, of Chicago, (Shelvin Singer, Assistant Public Defender, of counsel,) for appellant.
    Bernard Carey, State’s Attorney, of Chicago, (Elmer C. Kissane and Russell Hartigan, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. JUSTICE ADESKO

delivered the opinion of the court:

Defendant, Henry West was charged with the crime of unlawful use of weapons for possessing or carrying a shotgun with a barrel less than 18 inches in length in violation of section 24 — 1(a)(7) of the Criminal Code. (Ill. Rev. Stat. 1969, ch. 38, par. 24 — 1(a) (7).) After a bench trial, he was found guilty and sentenced to serve not less than two, nor more than four years m the Illinois State Penitentiary. Defendant raises the following issues on appeal:

1. Whether defendant was proven guilty beyond a reasonable doubt; and

2. Whether the evidence was sufficient to prove that the defendant knowingly and understandingly waived his right to a jury trial.

The facts are as follows:

On March 16, 1971, at approximately 2:40 A.M., Chicago Police Officers, John Marsek and Donald Houlihan responded to a radio call concerning the shooting of a man in the vicinity of 812 W. Maxwell Sheet in the city. Officer Marsek testified that as the officers approached the scene, he saw defendant running eastbound on Maxwell Street, carrying two objects in his possession, and that as the officer approached him, defendant suddenly changed his direction and ran back westbound on Maxwell Street where he was observed throwing the objects underneath an empty hot dog stand at 806 W. Maxwell Street, before proceeding again eastbound. Officer Marsek observed one of the objects as long and in a paper bag and the other as being smaller. Defendant was stopped by the officers about 10 or 15 feet from the hot dog stand, searched and released after defendant stated that he was looking for his brother, who was the individual who had been shot. Defendant then got into the back of a police squadrol which was going to the Cook County Hospital.

After the defendant left, the officers returned to the hot dog stand, where they found under the stand, a .38 caliber revolver and a paper bag containing a sawed-off shotgun with a barrel fourteen inches in length. Officer Marsek testified that only a few minutes elapsed between the time that defendant was stopped and the time that the weapons were recovered. He stated further that to his knowledge, no one had approached the stand during the time the defendant was stopped some 10 feet from the stand, nor during the short interval before the officers returned to the stand.

Officer Houlihan, Officer Marsek’s partner, testified that he too observed defendant going eastbound on Maxwell Street from Halstéd Street and that when defendant observed the squad car, he proceeded to go back westward toward Halsted Street and then he threw an object under the hot dog stand. Officer Houlihan stated that he and his partner stopped approximately fifteen feet from the hot dog stand and that defendant was released when he explained that his brother had just been shot. The officers then examined the immediate vicinity of the hot dog stand where they found a .38 caliber revolver and beside it, enclosed in a paper bag, a sawed-off shotgun with a fourteen inch barrel. Officer Houlihan stated that a crowd of people had formed on the comer some 15-to-20 feet from the stand, but that he never observed anyone come within 10 or 15 feet of the stand.

Ronald Knollmueller, a detective with the Chicago Police Department testified that on March 16, 1971, he was investigating a double shooting which occurred at 812 West Maxwell Street, and that he had a conversation with defendant who was a witness to the shootings. Detective Knollmueller related that defendant told him that he was in his brothers apartment on the night in question when two male Negroes entered the room, one with a sawed-off shotgun and the other with a revolver, and demanded money. Defendant stated that someone tinned off the lights and that he straggled with the man who held the shotgun and that numerous shots were fired in the room. Everyone then fled from the room including defendant’s brother who was wounded. Detective Knollmueller testified that he also had a second conversation with defendant at which time defendant stated that when the lights went out, he grabbed a revolver which was lying on a table in the room and fired several shots. Detective Knollmueller testified that defendant then stated that he wrestled the shotgun from the offender and ran down onto Maxwell Street with the weapons, disposing of them under a hot dog stand. Detective Knollmueller then testified that he met with Officers Marsek and Houlihan, who told him of finding the weapons under the hot dog stand and defendant was informed of his rights and placed under arrest.

Defendant’s counsel objected to Detective Knollmueller testifying to remarks and admissions allegedly made by defendant, contending that the admission of any such remarks would be violative of defendant’s constitutional rights as enunciated by the United States Supreme Court in Miranda v. Arizona, 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602. The trial court ruled that at the time defendant made his second statement to Detective Knollmueller, the investigation had focused upon defendant and as defendant was not warned of his constitutional rights at that time, defendant’s statements would indeed be suppressed.

Defendant then testified in his own behalf. He stated that on the night in question, he was visiting his brother when two men entered the room, one carrying a sawed-off shotgun, and they announced a hold up. Defendant testified that the lights went out and shots were fired. When the lights came back on, one of the intruders was lying wounded and defendant’s brother had gone. Defendant testified that he was told that his brother had been shot and that he proceeded from the room onto Maxwell Street and tried to catch up to his brother. Defendant stated that he had nothing in his hands at that time. Defendant related that as he approached the corner in the direction he had been told his brother had gone, he was stopped by police officers and searched. He was released and entered a police van which was taking his wounded brother to the hospital. Defendant was later arrested at the hospital. He denied ever having the weapons in question in his possession and stated he never threw anything under the hot dog stand. He also, denied ever telling Detective Knollmueller that he struggled with one of the intruders or that he fired any shots from a revolver.

The State recalled Detective Knollmueller in rebuttal. The detective testified that defendant told him at the hospital that when two intruders entered his brother’s room, defendant struggled with one and that defendant picked up a revolver and fired it several times. Detective Knollmueller stated that defendant also told him that he then picked up a shotgun and a revolver, ran onto Maxwell Street with the weapons and threw them underneath a hot dog stand.

At the close of all the evidence, the trial court found defendant guilty and sentenced him to serve not less than two, nor more than four years in the Illinois State Penitentiary. Defendant appeals from that judgment.

Defendant’s initial contention on appeal is that he was not proven guilty of unlawful use of weapons beyond a reasonable doubt. In support of this contention, defendant maintains:

(1) That the evidence offered by the State’s witnesses was contradictory and improbable;

(2) That the fact defendant was initially searched and released renders implausible testimony that police officers saw defendant in possession of objects resembling firearms prior to his arrest; and

(3) That the court misused impeachment evidence as substantive evidence and in so doing violated defendant’s constitutional rights.

Defendant contends that the testimony of the police officers is contradictory and improbable. Defendant focuses upon such discrepancies in the testimony as the statement by Officer Marsek that he first observed defendant 200 feet away, while Officer Houlihan stated he first observedt defendant from a distance of 100 to 150 feet, and the statement by Officer Marsek that he observed defendant throw two objects underneath an empty hot dog stand, while Officer Houlihan, who was sitting across the seat of the patrol car from his partner and had a different vantage point, stated that he only saw defendant make a throwing motion before his view was blocked by the stand.

The testimony of only one witness, if credible, is sufficient to sustain a conviction even as against a defendant’s contradictory account. People v. Moore, 42 Ill.2d 73, 246 N.E.2d 299; People v. Williams, 104 Ill.App.2d 329, 244 N.E.2d 347.

It is the province of the trial judge, who saw and heard the witnesses testify, to weigh the evidence, judge the credibility of witnesses and determine the facts in the case. (People v. Cox, 22 Ill.2d 534, 177 N.E.2d 211.) A reviewing court will not set aside a judgment of guilty unless the evidence is so palpably contrary to the judgment or so unreasonable, improbable or unsatisfactory as to cause a reasonable doubt as to the guilt of the accused. People v. Catlett, 48 Ill.2d 56, 268 N.E.2d 378; People v. Scott, 38 Ill.2d 302, 231 N.E.2d 441.

In the instant case, both Officer Marsek and Officer Houlihan testified to seeing defendant from their squad car, running eastbound on Maxwell Street and then proceeding in the opposite direction after defendant noticed the police car. When the officers first saw defendant he was carrying two objects, one long and one short. Both officers observed defendant throw the objects under a hot dog stand, where the officers recovered a shotgun and revolver moments later. After reviewing the record before us, we do not find that the testimony of the State’s witnesses is so contradictory and improbable as to raise a reasonable doubt as to defendant’s guilt.

Defendant further contends that the fact that he was arrested and searched at the scene and then released makes it doubtful that the officers ever did see him throw any weapons under the stand in question. The record in the case at bar, however, reveals that defendant was not arrested initially, but merely stopped by the officers because his running down the street appeared suspicious and it was only subsequently when it was found that the objects defendant was seen to be carrying and which he discarded were weapons, that the officers found probable cause to make the arrest they then effected.

A police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possible criminal behavior, even though there is no probable cause to make an arrest. (Terry v. Ohio, 392 U.S. 1, 20 L.Ed.2d 889, 88 S. Ct. 1868.) Once it is determined, however, that an individual was improperly using weapons, probable cause to effect an arrest would arise. (People v. Clay, 133 Ill.App.2d 344, 273 N.E.2d 254.) In the instant case, we do not find that the actions of the officers makes their testimony, that they did in fact see defendant discard objects which they only thereafter found to be weapons, so improbable as to raise a reasonable doubt as to defendant’s guilt.

Defendant also contends that the trial court improperly utilized impeachment evidence as substantive evidence of guilt, and that without such improper evidence, defendant could not have been convicted beyond a reasonable doubt.

After Detective Knollmueller testified in the prosecution’s case in chief that defendant admitted carrying the weapons in question and throwing them under the hot dog stand where they were recovered by the officers, the trial court determined that defendant had not been properly advised of his constitutional rights pursuant to Miranda v. Arizona, 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602, before he made such confession and the court suppressed the admission of any statements defendant allegedly made to Detective Knollmueller. Statements inadmissible against a defendant in the prosecution’s case in chief because of lack of the procedural safeguards required by Miranda, may, nevertheless, if their trustworthiness satisfies legal standards, be offered for impeachment purposes to attack the credibility of any testimony the defendant might offer at trial. The impeaching statement, however, may not properly be used as evidence of guilt. (Harris v. New York, 401 U.S. 222, 28 L.Ed. 1, 91 S.Ct. 643.) In the instant case, after defendant testified on his own behalf that he never made a statement wherein he stated that he did have such weapons in his possession, Detective Knollmueller was recalled by the State in rebuttal, for the purpose of impeaching defendant’s testimony. Detective Knollmueller then testified that defendant confessed to him that he had in fact possessed the weapons in question and that he had disposed of those weapons under a hot dog stand. Defendant, on appeal, concedes that such testimony by Detective Knollmueller could properly be offered under Harris for the purpose of impeaching the credibility of defendant’s testimony. Defendant maintains, however, that the trial court erred in also using this impeachment as substantive evidence of defendants guilt. Defendant contends that if his alleged confession had not been improperly accepted as evidence of his guilt, he would not have been proven guilty beyond a reasonable doubt and cites statements from the trial judge in support of his contention. At the close of the State’s rebuttal testimony in the instant case, the trial judge reminded counsel to address themselves in their arguments to the suppressed confession offered for impeachment purposes and stated:

“We have now, I don’t want to direct your argument, but there is in this case this suppressed confession * * *. It is now in the case. The court is of the opinion that without it, the State has not proved the case. Of course, it is in there for the purpose of the credibility of the defendant, yet it is in there also to bolster the State’s case. It is a situation whereby without that statement the court was prepared to rule that the State has not proved its case beyond a reasonable doubt.”

Defendant contends that these statements by the trial judge are a direct admission that the court improperly used defendant’s statements for proof of guilt as well as for impeachment purposes.

It is well settled that in a bench trial, the trial court is presumed to consider only the competent evidence adduced at trial and to disregard any incompetent evidence. People v. Mays, 48 Ill.2d 164, 269 N.E.2d 281; People v. Palmer, 26 Ill.2d 464, 187 N.E.2d 236.

The record in the instant case reveals that after Detective Knollmueller testified to the confession by defendant, the court listened to arguments by counsel and determined that such confessions should be suppressed. Immediately thereafter defendant’s counsel moved for a directed finding based upon the State’s evidence. A directed finding of not guilty is proper when the evidence adduced by the State, when viewed in a light most favorable to the State, fails to establish the guilt of defendant beyond a reasonable doubt. (Ill. Rev. Stat. 1971, ch. 38, par. 115 — 4(k).) The trial court denied defendant’s motion for a directed verdict and thus indicated that without considering defendant’s confession which the court had just suppressed, the State’s evidence was still sufficient.

After a careful review of the record, we do not find that the trial court utilized impeachment evidence as evidence of defendant’s guilt to improperly find him guilty beyond a reasonable doubt.

Defendant’s final contention on appeal is that the trial judge erred in failing to adequately inform defendant of his right to a jury trial and in failing to obtain a knowing and understanding waiver of that right before proceeding to hear the case. Defendant contends that the court erred by not advising him of his right to a jury trial until after a few questions had already been asked of the first witness and that he did not knowingly and understandingly waive his right to a jury trial and cites People v. Rambo, 23 Ill.App.2d 299, 260 N.E.2d 119, in support of his contention. In Rambo, a sixteen year old was convicted of murder in a bench trial in which he was informed of his right to a trial by jury and where he signed a jury waiver, but where the court never obtained defendant’s overt expression of such waiver either by defendant or by his attorney. In.reversing that conviction, the Illinois Appellate Court merely pointed out that while the defendant, who was a minor and charged with a serious offense, was adequately informed of his right to a jury trial, neither he nor his counsel were asked whether defendant wished to waive that right. Under those circumstances, the court found mere execution of a written jury waiver to be insufficient.

The record in the instant case discloses the following colloquy between the court and defendant and his privately retained counsel:

“THE COURT: Mr. West.
DEFENDANT WEST: Yes.
THE COURT: Would you step up here for a moment.
THE COURT: Mr. West, I hold in my hand a document known as a jury waiver in which your signature appears on it. You are aware, Mr. West, that you are entitled to a jury trial in which your innocence would be determined by twelve people.
DEFENDANT WEST: Yes.
THE COURT: Are you not? And are you aware that by signing this document you are giving up your right to a jury trial.
DEFENDANT WEST: Yes, sir.
THE COURT: And you want to submit your guilt or innocence to the court.
DEFENDANT WEST: Yes sir.
THE COURT: Very well.
THE ATTORNEY: Thank you Your Honor.”

Our examination of the record in the case at bar reveals that defendant was adequately informed of his right to a jury trial. We find that defendant, who had previously been convicted of felonies and was thus not a stranger to the criminal justice system, knowingly and understandingly waived his right to a jury trial. Although the court admonished defendant after the first witness had begun to testify, we find that in the instant case, the temporary delay did not prejudice the defendant nor deny him any constitutional right.

For the foregoing reasons, the judgment of the Circuit Court of Cook County is hereby affirmed.

Judgment affirmed.

BURMAN, P. J., and DIERINGER, J., concur.


text:
    Richard Harris, Plaintiff-Appellee, v. Algonquin Ready Mix, Inc. et al., Defendants-Appellants—Commonwealth Edison Company, Counterplaintiff-Appellant and Thirty-Party Plaintiff-Appellant, v. Algonquin Ready Mix, Inc., Counterdefendant-Appellee and Third-Party Plaintiff-Appellee—(Pre-Cast Building Sections, Inc., Third-Party Defendant-Appellee and Third-Party Defendant.)
    (No. 55659;
    First District (4th Division) —
    July 11, 1973.

      Cornelius J. Harrington, Jr., Leo K. Wykell, and Raymond R. Cusack, of Kirkland, Ellis, Hodson, Chaffetz & Masters, of Chicago, for appellant Commonwealth Edison Company.
    Francis D. Morrissey and Thomas F. Bridgman, of Baker & McKenzie, of Chicago, for appellant Algonquin Ready Mix, Inc.
    Philip H. Corboy and James P. Chapman, of Chicago, for appellee Richard Harris.
    Schaffenegger & Watson, of Chicago, (Jack L. Watson, of counsel,) for appellee Pre-Cast Building Sections, Inc.
   Mr. JUSTICE DIERINGER

delivered the opinion of the court:

The plaintiff, Richard Harris, was injured when a crane came in contact with overhead high tension wires. He brought this action against Commonwealth Edison Company because of its alleged negligent maintenance of its transmission lines and against Algonquin Ready Mix, Inc., because of its alleged negligent failure to warn of the danger presented by the lines.

Commonwealth filed a counterclaim against Algonquin alleging active-passive negligence. Both Commonwealth and Algonquin brought third-party actions against Pre-Cast Building Sections, Inc., the plaintiff’s employer, alleging active-passive negligence.

The jury returned a verdict in favor of the plaintiff against Commonwealth and Algonquin in the sum of $300,000. The plaintiff suffered severe electrical burns over 30% to 40% of his body, and as a result, his right arm was amputated at the shoulder, and also suffered a drop foot condition with a residual impairment. The jury also returned a verdict in favor of Algonquin on Commonwealth’s counterclaim and a verdict in favor of Pre-Cast on Commonwealth’s third-party complaint. The jury returned a separate verdict in favor of Algonquin on its third-party com-plaint against Pre-Cast in the sum of $40,000. Algonquin filed a motion to increase the amount of this verdict to $300,000, and the court granted the motion. Commonwealth, Algonquin and Pre-Cast have each appealed.

The issues for review presented by Commonwealth are (1) whether the court erred in denying Commonwealth leave to file an amended counterclaim and third-party complaint; (2) whether the court erred in failing to strike irrelevant and prejudicial testimony; (3) whether the court erred in striking exhibits properly admitted into evidence; (4) whether the court should have declared a mistrial after it made a prejudicial remark; (5) whether the court erred in denying examination on a relevant and material point; and (6) whether the court erred in preventing an adverse and hostile witness from being cross-examined.

The issues presented by Algonquin are (1) whether the court erred in denying its motion for judgment notwithstanding the verdict; and (2) whether the court erred in failing to sustain its objections to evidence of warning signs posted after the injury.

The issue presented by Pre-Cast is whether the court erred in allowing Algonquin’s motion to increase the amount of Algonquin’s verdict against Pre-Cast from $40,000 to $300,000.

At the time of the accident Pre-Cast was engaged in dumping defective concrete slabs on property belonging to Algonquin, pursuant to an agreement whereby Pre-Cast had some place to dump its slabs. Algonquin thereby obtained fill to make the property more suitable for future industrial development.

Harold Anson, who was both the executive vice-president of Algonquin and the president of Pre-Cast, personally went out on the property and selected the low spots in the southwest portion of the property to be so filled.

On the morning of August 14, 1964, the plaintiff, an eighteen-year-old employee of Pre-Cast, was on the ground next to the crane which was being used to dump the slabs. As the boom swung around, Harris grabbed the slab to guide the drop. A witness testified he saw sparks flying and then saw Harris stiffen up and fall backwards. He did not know whether the boom actually touched the wires when the sparks appeared, but afterwards the boom was resting on the lines.

Anson testified he knew there were wires on poles at the south end of the property but was never informed they were high tension wires carrying 34,500 volts of electricity. There had been no warning signs of any kind posted in the area prior to the accident. Two Commonwealth line patrolmen testified they did not warn of the dangers even though they knew Pre-Cast had a crane in the area and it was part of their responsibilities to do so.

Commonwealth first contends the court erred in denying leave to file an amended counterclaim against Algonquin and an amended third-party complaint against Pre-Cast Building Sections, Inc., at the close of the plaintiff’s case. Commonwealth states it sought to delineate “the nature of the relationship that existed between Algonquin and Pre-Cast and to conform the pleadings to the proof,” and alleged that either PreCast was operating as the agent of Algonquin or, in the alternative, that both companies were parties to the joint venture of excavating and filling the area near the lines at the time of the accident.

Commonwealth argues the mere fact the jury found against it on each of the charges against Pre-Cast and Algonquin is not dispositive of the question of liability because the unique negligence of each when demonstrated to be joint would have been considered differently by the jury with regard to liability.

Section 46 of the Civil Practice Act (Ill. Rev. Stat., ch. 110, § 46) provides that amendments may be allowed prior to final judgment “on just and reasonable terms.” The case law is well settled that whether or not a party may be allowed to file an amended pleading pursuant to Section 46 is within the discretion of the trial judge. In Ennis v. Illinois State Bank of Quincy (1969), 111 Ill.App.2d 71, the court stated:

“Despite this liberal policy, parties do not have an absolute right to amend their pleadings. Amendments are only permitted at the trial court’s discretion. * * * The determining factor for overruling a judge’s disallowance of a motion to amend must be found in a ‘clear abuse of his discretion,’ considering the peculiar facts and circumstances of the case and the impact upon all the parties in permitting or not permitting the motion.”

In the present case Commonwealth knew prior to trial that Harold Anson occupied positions with both Algonquin and Pre-Cast, and there was no reason to wait until after the plaintiff had rested his case to amend its pleadings. The court’s ruling did not change the evidence, did not bear upon the question of proximate cause, and was clearly not an abuse of discretion.

Secondly, Commonwealth contends the court erred in failing to strike the testimony of an expert witness, George Peirce, who testified with regard to possible safety measures which could have been taken to prevent an accident resulting from a crane coming in contact with high tension wires. The basis of the argument is he was allowed to testify with respect to a model which demonstrated a theory not devised or in effect at the time of the accident.

The record shows the model was admitted into evidence without objection and was used to demonstrate what would happen when a boom of a crane came into contact with electrical wires and to show a practical method to prevent the conduction of electrical current down a crane boom by using a ground wire.

Peirce testified his proposal would have been practical long before 1964, when the accident occurred. The principle involves the use of a ground wire and is well established.

Commonwealth did not object that the model upon which Pence based his answer was inaccurate or that Peirce had considered matters not in evidence in proposing his system, but it did put on its own expert witness who testified the proposed system was not a good one. He testified he was unaware of any functional or operational use of the proposed system. Through both witnesses the jury was fully informed on the relative feasibility of such a protective system at the time of the accident. In Moren v. Samuel M. Langston Co. (1968), 96 Ill.App.2d 133, the court stated:

“This evidence aided the jury in deciding what was feasible and what the defendant knew or should have known. It did not conclusively determine the standard of care and the jury was not instructed that it did.”

Similarly, in the instant case the jury was free to consider the testimony of both expert witnesses and to draw their own conclusions.

Commonwealth’s third argument is the court erred in striking a sample letter Commonwealth customarily sent to contractors warning of the dangers of transmission wires. The sample letters had been admitted into evidence over objections of counsel for both Pre-Cast and Algonquin. Mary Pierce, a secretary for Commonwealth, had testified on direct examination she was responsible for typing out warning letters with respect to overhead wires and she could determine from lists she had sent letters to Pre-Cast and Algonquin, even though she had no personal recollection of the specific letters. However, on cross-examination she stated she could have been mistaken and a different division of Commonwealth might have been responsible for sending the letters. Both Algonquin and Pre-Cast denied receiving any such letters and there were no copies. As a result the court acted properly in striking the sample warning letter because there was no longer any proper foundation for the admission of the exhibits into evidence, since there was no longer any evidence that either party had received any such letter. Furthermore, the jury heard Mary Pierce’s testimony as to the contents of the alleged warning letters, and we think Commonwealth was not prejudiced by striking the letter.

Fourth, Commonwealth contends the court should have declared a mistrial after making a remark which was prejudicial. Trial counsel for Commonwealth had returned to the counsel table and was awaiting the return of the judge and other trial counsel after a conference in chambers. As the jury was filing into the box he says he heard the trial judge state to other trial counsel as they approached the courtroom, “Let’s settle this case.” When counsel informed the court the judge stated, “In all fairness, I’ll ask the jury right on the record if they heard any conversation by me or anybody.” He then addressed the jury on the issue:

“THE COURT: If your answer is ‘Yes’ will you please raise your hand? As the jury was coming into the jury box just now, did any of the jurors hear any conversation that I had back there?
(THE JURY): No.
THE COURT: The answer is “No.” Right?
(THE JURY): No.
THE COURT: Let the record so show.”

Counsel for Commonwealth did not object to the form of the question, therefore the negative answer by the jury must be deemed to be conclusive.

Fifth, Commonwealth contends the court erred in preventing it from asking a witness about a previous accident involving Pre-Cast where a crane came in contact with wires. When the witness was asked about the prior crane contact, objections were made and sustained. A discussion which followed in chambers failed to resolve whether the prior contact had involved substantially the same location, whether the contact was made with power lines or telephone lines, or whether there had been any other similarity which would justify the admission of the testimony into evidence. When court was resumed the line of questioning was dropped and no offer of proof was made. On these facts no appealable issue remains.

Lastly, Commonwealth contends the court erred when it was prevented from calling Gordon Smith, an employee of Pre-Cast, as an adverse witness. Commonwealth wanted to call him under Supreme Court Rule 238, which provides:

“If the court determines that a witness is hostile or unwilling, he may be examined by the party calling him as if under cross-examination. The party calling an occurrence witness, upon the showing that he called the witness in good faith and is surprised by his testimony, may impeach the witness by proof of prior inconsistent statements.”

Commonwealth argues the interest of Pre-Cast, Smith’s employer, was adverse and hostile to Commonwealth, and the court did not take into careful consideration the amount of control and influence Pre-Cast exercised over Smith. However, the record shows Commonwealth made no attempt to show that Smith was hostile. The Committee Comments on Rule 238 state the Rule authorizes cross-examination of any witness who “proves” hostile and unwilling. Commonwealth neither proved the hostility of the witness in questioning before the jury nor did he suggest the witness be questioned outside the presence of the jury to show his hostility. In the absence of such proof the ruling of the trial court was correct.

The primary contention of Algonquin Ready Mix, Inc., on appeal is the trial court erred in denying its motion for judgment notwithstanding the verdict. Algonquin maintains by owning the land it did nothing more than furnish a condition and the collision of the boom of the crane into the transmission lines was a new and independent force which was the proximate cause of the plaintiffs injuries. (Briske v. Village of Burnham (1942), 379 Ill. 193; Merlo v. Public Service Co. (1942), 381 Ill. 300.) In Merlo, the court stated:

“Manifestly and undoubtedly, neither the lack of insulation nor the sagging wires did anything more than furnish a condition, and the intervening, independent act of the crane operator was the efficient and proximate cause of the fatal injuries to decedents. There is no evidence in the record tending to show otherwise.”

Similarly, in the instant case the overhead wires furnished a condition for the intervening act of the Pre-Cast crane operator who furnished the efficient proximate cause of the plaintiff’s injuries.

The plaintiff cites the cases of Bosjnak v. Superior Sheet Steel Co., (1945), 145 Ohio St. 538, 62 N.E.2d 305, and La Salle National Bank v. Wieboldt Stores Inc. (1965), 60 Ill.App.2d 188, for the proposition that Algonquin, as the owner of the land, had a duty to make the premises safe for a business invitee. He also cites the case of Neering v. Illinois Central R.R. Co. (1943), 383 Ill. 366, for the proposition that there can be no intervening efficient force if the party should have foreseen the accident. However, in those cases the party knew of the dangerous condition or was responsible for its control. In the instant case Commonwealth was in control of the lines and had a duty to warn of potential danger. A layman could not discover the dangerous nature of the wires just by looking at them.

The testimony discloses that Algonquin did not know the lines carried 34,500 volts and Commonwealth neither warned Algonquin by letter nor did its line patrolmen attempt to give warning even though it was part of their job to do so and they knew Pre-Cast had a crane in the area.

We hold Algonquin’s motion for a judgment notwithstanding the verdict should have been granted; therefore, we need not consider whether the court erred in admitting evidence of warning signs posted after the injury or whether the court erred in allowing the motion to increase the amount of Algonquin’s verdict against Pre-Cast from $40,000 to $300,000.

For these reasons the judgment of the Circuit Court of Cook County for plaintiff against Commonwealth Edison is affirmed, and the judgment for plaintiff against Algonquin Ready Mix is reversed; the judgments in favor of Algonquin Ready Mix and Pre-Cast Building Sections against Commonwealth Edison are affirmed; and the judgment in favor of Algonquin Ready Mix against Pre-Cast Building Sections is reversed.

Affirmed in part and reversed in part.

BURMAN, P. J., and ADESKO, J., concur.


author: Mr. JUSTICE McNAMARA

text:
    Maria Messina, Plaintiff-Appellee, v. Bert Zody, Defendant-Appellant.
    (No. 57040;
    First District (3rd Division) —
    July 12, 1973.

      Frederic O. Floberg, of Chicago, for appellant.
    James J. Kenny, of Chicago, for appellee.
   Mr. JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiff, Maria Messina, brought this action in the circuit court of Cook County against defendant, Bert Zody, a Chicago Transit Authority bus driver, for personal injuries arising when she fell while alighting from a C.T.A. bus. After a trial without a jury, the court entered judgment for plaintiff and assessed damages at $4,500. Defendant appeals from the judgment. Prior to trial, the C.T.A. was dismissed as a defendant because of plaintiff’s failure to serve a required notice. The propriety of that dismissal order is not involved in this appeal.

On September 11, 1967, plaintiff fell as she alighted from the front doorway of a bus at the intersection of Grand and Austin Avenues in the City of Chicago. She was taken from the scene by the police to Saint Anne’s Hospital.

At trial plaintiff testified through an interpreter that she had one foot on the bottom step of the bus doorway and was about to place her other foot on the ground when the bus pulled away, throwing her to the ground. Her testimony as to the occurrence was supported by a disinterested witness, James Rubino. Rubino owned a restaurant at the intersection and was looking out the window at the time. Rubino also testified that when plaintiff was thrown to the ground she landed on her face and rolled over. It was Rubino who wrote down the bus number and called the police.

Defendant testified that he operated a bus on Grand Avenue on the day in question, but that he was unaware of any accident having taken place. His superior asked him about the incident on the following day.

Plaintiff' testified that she sustained injuries to her head, side, back, ribs and stomach. She came under the care of Doctor Devonch at the hospital. She had pain in various parts of her body, particularly in the left ribs, chest, back and stomach. She was in the hospital 18 days, returned to the hospital on November 26, 1967, and remained there until December 21. She returned to the hospital because of a deep pain in her stomach and because of her inability to have a bowel movement. She also testified that during her second hospitalization she came under the care of Doctor Giganti. He prescribed the use of a corset which she wore for four years. She still had pain in her stomach at the time of trial. Prior to this accident, she did not have stomach pain. She had an appendectomy in 1964. When she arrived from Italy in 1961, she worked in the kitchen at Columbus Hospital. Plaintiff did not remember whether she had an accident at the Columbus Hospital in October, 1962. Plaintiff further testified that she worked at the Palmer House from 1964 until the present accident.

Gary Pruitt, personnel director for the Palmer House, testified for plaintiff. Plaintiff was employed at the Palmer House at the time of the accident. After obtaining a leave of absence, she never returned to work. The work records indicated that she had requested a month’s leave of absence for illness two years prior to the instant accident.

Doctor James J. Giganti testified for the plaintiff that she came under his care and treatment in the early part of December, 1967. The plaintiff complained of severe abdominal pain, constipation and occasional nausea. She had also been unable to urinate. Doctor Giganti diagnosed plaintiff’s condition as chronic constipation of neurogenic origin and traumatic myositis, an inflammation of the front part of the abdominal wall. In the doctor’s opinion, there was a casual connection between the instant accident and plaintiff’s subsequent condition of ill being. He also believed the condition could be permanent. He testified that his diagnosis was based mainly upon plaintiff’s subjective complaints. The doctor characterized plaintiff as emotional and anxious. He noted that plaintiff’s inability to urinate cleared up, as did the various sprains and bruises to the other parts of her body.

Doctor William Buckingham, an internist, testified as an expert witness on behalf of defendant. He had not examined plaintiff, but in response to a hypothetical question expressed the opinion that there was no causal connection between the accident and plaintiff’s condition of ill being. Doctor Buckingham considered the diagnosed conditions as solely nervous complaints unrelated to trauma.

In assessing plaintiff’s damages at $4,500, the trial judge stated that $757 was for the amount of the first hospital bill and that $147 was for part of her medical bill. The judge also recognized that plaintiff was employed, but stated that he had not been informed of her earnings. The balance of the judgment was for pain and suffering.

On appeal defendant contends that the damages awarded to plaintiff were excessive; that the finding was against the manifest weight of evidence because plaintiff failed to show sufficient causation between her physical condition and the accident; and that the trial court committed reversible error in excluding certain evidence offered by defendant.

We consider initially defendant’s argument that the damages awarded to plaintiff were excessive.

It is well settled that the amount of a judgment rests within the discretion of the trier of fact, and it is the trier of fact, not a reviewing court, which determines the amount which will compensate a plaintiff for injuries sustained. (Parnham v. Carl W. Linder Co. (1962), 36 Ill. App.2d 224, 183 N.E.2d 744.) In Barango v. E. L. Hedstrom Coal Co. (1956), 12 Ill.App.2d 118, 138 N.E.2d 829, this court stated that the issue in such cases is whether or not the total amount of the damages fails within the necessarily flexible limits of fair and reasonable compensation or is so large as to shock the judicial conscience. Before an award of damages will be disturbed on review the size of the damages must clearly indicate that it was the result of prejudice or passion. Ford v. Friel (1947), 330 Ill.App. 136, 70 N.E.2d 626.

Nothing in the present record reveals prejudice or passion on the part of the trial judge. In assessing the damages, he analyzed the evidence and plaintiff’s actual out-of-pocket expenses. The judge was careful to confine plaintiff to a recovery for those hospital and medical expenses which he found to be related to this accident. He limited recovery for hospital expenses to plaintiffs initial 18 day confinement at Saint Anne’s Hospital, and awarded her compensation for only part of her medical expenses. Although observing that he had not been apprised of the amount of plaintiffs lost wages, the judge recognized that at the time of the accident she was employed at the Palmer House and had in fact suffered a loss of wages. The trial judge also found that plaintiff was entitled to be reimbursed for her pain and suffering. Under the circumstances, we are unable to state that the trial court’s award of $4,500 was excessive.

Defendant also maintains that because the award for pain and suffering amounted to 80% of the entire judgment, excessiveness of the award is conclusively demonstrated. This argument overlooks the fact that the trier of fact considered plaintiff’s lost wages. More importantly, this ratio contention has been considered and rejected by our Supreme Court. In Lau v. West Towns Bus Co. (1959), 16 Ill.2d 442, 158 N.E.2d 63, the court stated at p. 453: “we cannot limit compensable damages for pain and suffering to a set of percentage of medical, hospital and kindred expenses.”

Defendant’s second contention is that the judgment was contrary to the manifest weight of the evidence because plaintiff failed to show causation between her condition of ill being and the instant accident. However Doctor Giganti specifically testified for the plaintiff that a causal connection existed between the trauma sustained by the plaintiff as the result of the fall from the bus and her subsequent stomach condition. Although Doctor Buckingham testified for defendant that plaintiff’s condition of ill being was not caused by trauma, but was the result of pre-existing nervousness, the determination of that conflicting issue was properly for the trier of fact. We cannot say that his determination was against the manifest weight of evidence.

Defendant also contends that the trial court committed reversible error in excluding certain evidence offered by defendant. After defendant had rested his case, he received permission from the trial court to reopen the case. He then attempted to introduce personnel records and certain hospital records from Columbus Hospital pertaining to plaintiff during her employment at the hospital in 1962. While employed at the hospital plaintiff was also an out-patient at the hospital clinic. An employee of the hospital testified that the records in question were kept in the ordinary course of business. The court permitted the introduction of plaintiff’s employment records at the hospital, but sustained plaintiff’s objection to that part of the records pertaining to her out-patient treatment. Defendant then made an offer of proof that if the hospital records had been admitted into evidence, they would show that on August 13, 1962, plaintiff complained of diarrhea and abdominal pain; that in November, 1962 she complained of a fall hurting her chest; and that in December, 1962 she sustained burns at the hospital.

Defendant concedes that hospital records are generally not admissible without testimony by persons making entries thereon. Flesberg v. Prince Warehouse Co. (1962), 37 Ill.App.2d 22, 184 N.E.2d 813. He urges, however, that because plaintiff was employed at the hospital the hospital records should have been admissible. We are of the opinion that the trial court properly excluded the evidence. Whether or not plaintiff was an employee of the hospital, the records, as demonstrated by the offer of proof, would have constituted prejudicial hearsay evidence.

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

Judgment affirmed.

DEMPSEY, P. J„ and McGLOON, J., concur.


author: Mr. JUSTICE ENGLISH.

text:
    Lustre Products Corporation, Plaintiff-Appellee, v. Frank DeMichel et al., Defendants—(Jack Rukin, d/b/a Mirror Glaze Distributors, Defendant-Appellant.)
    (No. 54812;
    First District (5th Division) —
    July 13, 1973.

      Rehearing denied August 13,1973.

    Louis P. Yangas, of Chicago, (Stanley Werdell, of counsel,) for appellant.
    Edward A. Berman and Edwin M. Raffel, both of Chicago, for appellee.
   Opinion by

Mr. JUSTICE ENGLISH.


author: PRESIDING JUSTICE DRUCKER.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Eddie Junior Woods, Defendant-Appellant.
    (No. 55548;
    First District (5th Division) —
    July 13, 1973.
    Gerald D. Mindell, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago, (Elmer C. Kissane and Robert J. Cohen, Assistant State’s Attorneys, of counsel,) for the People.
   Opinion by Mr.

PRESIDING JUSTICE DRUCKER.


author: Mr. JUSTICE ENGLISH

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Robert Lahori, Defendant-Appellant.
    (No. 55958;
    First District (5th Division) —
    July 13, 1973.

      Gerald W. Getty, Public Defender, of Chicago, (Jean Essary, Stanley Sacks, and James J. Doherty, Assistant Public Defenders, of counsel,) for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Mark Harms, Elmer C. Kissane, and Robert J. Cohen, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. JUSTICE ENGLISH

delivered the opinion of the court:

OFFENSES CHARGED

Two counts of minder, under different paragraphs of the statute, for the killing of his wife. Ill. Rev. Stat. 1969, ch. 38, pars. 9 — 1(a)(1) and (2).

JUDGMENT

After a jury trial, defendant was found guilty of murder and was sentenced to a term of not less than 20 nor more than 30 years. CONTENTIONS RAISED ON APPEAL

1. Defendant was not proved guilty beyond a reasonable doubt.

2. The trial court erred in refusing to give a self-defense instruction to the jury, thereby depriving defendant of his right to have the jury instructed on the theory of his defense.

EVIDENCE

Eleanor Taylor, for the State:

She is the sister of the deceased, Barbara Lahori. As of April 26, 1970, she, Barbara, and Barbara’s eight children (one of them being in California at the time), were living together in a three-bedroom apartment at 4632 S. Michigan, Chicago, Illinois. At 7:25 P.M., on that date, she, her sister, and the five-month-old baby were in the apartment when defendant arrived. She and her sister were in the kitchen, and defendant joined them there. Defendant was wearing an unbuttoned outer coat, and she could see his shirt and pants. She did not see a gun on his person at the time he entered the apartment, nor did she see him pick up a gun while in the apartment. After a few minutes, she went into her bedroom to iron a blouse. She did not have an ironing board, but was ironing on the mattress of her bed. A few minutes later, defendant went into her sister’s bedroom, and her sister followed him. Defendant did not force Barbara into the bedroom. Her sister did not have a broom with her at the time. The witness’ bedroom was separated from her sister s bedroom by a three- or four-foot-wide hallway, the two doors of the bedrooms almost directly across from one another. She was not facing her bedroom door while ironing, and could not look directly into the other bedroom, but turned around a few times to watch defendant and her sister.

Defendant and Barbara were together in Barbara’s bedroom about five minutes when she heard her sister say, “Don’t lay down, Robert, go home. I don’t want to be bothered with you.” She saw defendant pull a gun out of his left-side pocket. Then she heard shots, and turned around and saw Barbara stagger out of the bedroom into the hall. Her sister fell in the hallway about three feet from the living room with her head facing the living room. Defendant came into the witness’ bedroom and pointed a gun at her. She pushed him against the wall; he said he wasn’t going to shoot her; she kept telling him to drop the gun, which he did. She then ran downstairs to a neighbor’s apartment to call the police. She was still in the neighbor’s apartment when the police arrived about 10 minutes later and went upstairs. She followed them and heard defendant tell the officers that he had shot his wife.

Rosmond Howard, for the State:

He is a Chicago police officer. On April 26, 1970, at about 7:30 P.M., he and his partner went to an apartment at 4632 S. Michigan. He knocked on the door, and when defendant opened the door, he could see a revolver sticking in his belt. The witness took the gun with no resistance on defendant’s part, and defendant said to him, “I shot my wife.” He walked into the apartment and observed the deceased lying in the hallway between the bedroom door and the living room door, with her head facing the living room. He examined the entire apartment, noticing only two bedrooms, one on each side of a hallway. He did not see a broom, an iron, or any signs of a scuffle in either of the bedrooms.

The gun retrieved from defendant was a blue-steel .32-caliber H & R or Rohm revolver containing four spent and two live cartridges. He unloaded the gun and later inventoried both the shells and the gun, sending them to the crime laboratory. He also found one spent bullet lying on the bed in the deceased’s bedroom which he sent to the crime laboratory.

He later examined the body of the deceased at the hospital and observed five wounds, all on the left side of the body.

STIPULATION

The Coroner’s pathologist would testify if called, that his examination of the body of the deceased revealed five bullet wounds, with death resulting from a bullet wound of the heart. The four bullets found in the body were placed in a coroner’s envelope and sent to the Police Crime Laboratory.

Vincent J. Lomoro, for the State:

He is a police officer working in the Police Crime Laboratory. On April 28, 1970, he received from Officer Howard a .32-caliber Harrington & Richardson revolver, four discharged cartridge cases, and one fired .32-caliber bullet. On that same date, he received a sealed coroner’s envelope containing three fired .32-caliber bullets. After test firing the weapon, he concluded that one of the bullets recovered from the body of the deceased had been fired from the weapon taken from defendant. The other spent bullets did not have suitable amounts of individual characteristics for an identification to be made.

Ernestine K. Hambrick, for the defense:

She is a medical doctor employed on the house staff of Cook County Hospital. Defendant was a patient at that hospital on two separate occasions, the most recent one being in January, 1969. Defendant had received a gunshot wound to his abdomen and was in the hospital for a colostomy closure. Defendant underwent surgery, and the colostomy was closed, but the bullet was not removed. Assuming that the bullet had not been surgically removed subsequent to January,' 1969, the bullet would still be in the upper left quadrant of his abdomen.

Robert Lahori, defendant, in his own behalf:

On April 26, 1970, at about 7:00 P.M., he stopped at his wife’s apartment to pick up a gun he had left there. His wife was the only person he saw in the apartment when he first arrived. He went into the kitchen, took his gun and holster out of a cabinet, and clamped them inside his pants on the right side. He then walked into the living room where his wife was sweeping the carpet with a wood-handled.broom. Defendant spoke to his wife about the unkempt appearance of the children and the apartment, and after a few minutes’ conversation, she hit him in the stomach with the point of the broom, hit him several times on the head, scratched him, and bit his thumb. While trying to wrestle the broom from her hands, he was knocked to the couch. At that point, he must have passed out, because he does not remember any other details until he woke up on the couch with his gun in his hand and saw his wife lying face up on the floor in the living room with her head facing the hallway. He did not notice any blood or bullet holes on the body or clothing of the deceased, and he thought that she had merely been sick and fainted, as had happened before. The broom was on the living room floor, and he picked it up and leaned it against the wall in the hallway. He then walked to the back of the apartment, saw his wife’s sister, Eleanor Taylor, and asked her to call the police. Eleanor had not been ironing when he saw her in the bedroom. Defendant then returned to the living room and tried to revive the deceased with mouth-to-mouth resuscitation. He continued to do so until the police arrived. It was when he picked up the body of the deceased to try to revive her that he noticed the blood. He did not move the body from the place he had first seen it. He let the police into the apartment and told the officers that he had shot his wife. Although he does not remember shooting his wife, that was the only thing he knew to say.

The officers took him to the hospital where he was treated for the bite and scratches and given pills for the pain. He was then taken to the police station and jailed.

In January, 1969, he received a gunshot wound to his abdomen. Although the colostomy was surgically closed, he still carried the bullet in his stomach and was often in pain. He was a patient at the Fantis Clinic and was given medication for the pain. He had been married to the deceased at the time he received the gunshot wound, and she knew the location of the wound and the fact that he was often in pain because the bullet was still in his stomach. When his wife attacked him with the broom, she hit the exact spot of the wound, and he experienced great pain in both his stomach and his side.

OPINION

There can be no doubt from the evidence that the deceased was killed by a bullet fired from the gun taken from defendant a short time after the incident. Defendant does not deny that he shot his wife, but contends that because he was the only eyewitness to the entire incident and his testimony was unrebutted by the State as to any material part, the State failed to prove beyond a reasonable doubt that his shooting of the deceased was anything other than an action in self-defense.

We find that the evidence adduced at trial was sufficient to sustain a murder conviction. Defendant’s testimony, even if unrebutted, need not be believed by the trier of fact. (People v. Wilkes, 2 Ill.App.3d 626, 276 N.E.2d 761; People v. Herron, 125 Ill.App.2d 18, 260 N.E.2d 428.) However, in the instant case, defendant’s testimony was contradicted by the State’s witness, Eleanor Taylor. Although Miss Taylor did not actually observe the incident, she testified that she saw defendant and the deceased go into a bedroom, saw defendant pull a gun out of his pocket, heard shots, saw the deceased stagger into the hallway and fall with her head facing the living room, and was confronted in her bedroom by defendant who had a gun in his hand. Her testimony was corroborated by that of Officer Howard who stated that he found the body of the deceased in the hallway with her head facing the living room, whereas defendant testified that the body of deceased was in the living room with her head facing the hallway and that he did not move her from that spot.

Although defendant testified that the deceased had attacked him and that he did not remember shooting her, the testimony of Miss Taylor was sufficient, if credible and believed, to warrant a conviction of murder. It is well established that it is the function of the jury to weigh contradictory testimony, judge the credibility of witnesses, and determine factual controversies. (People v. Nicholls, 42 Ill.2d 91, 245 N.E.2d 771, U.S. cert. denied 396 U.S. 1016, 90 S.Ct. 578.) Since the jury verdict is not so unsatisfactory as to justify a reasonable doubt as to defendant’s guilt, it is beyond our function to set it aside. People v. Peto, 38 Ill.2d 45, 230 N.E.2d 236.

Defendant also urges that it was error for the trial judge to refuse to instruct the jury on self-defense, based on his testimony that although he does not remember shooting the deceased, he does remember her hitting, scratching, and biting him, and that if he did shoot her, he would have been acting in self-defense.

We cannot agree with this contention. Section 7 — 1 of the Illinois Criminal Code (Ill. Rev. Stat. 1969, ch. 38, par. 7 — 1), provides that “a person is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself • * Raising the issue of self-defense requires as its sine qua non that defendant had admitted the killing as the basis for a reasonable belief that the exertion of such force was necessary. In People v. Tanthorey, 404 Ill. 520, 89 N.E.2d 403, the Supreme Court affirmed the decision of the trial court in refusing to give tendered jury instructions on self-defense where defendant claimed that the shooting was accidental and that he was unaware that he had shot the deceased. In the instant case, defendant’s testimony was that he could not remember whether or not he had shot the deceased because he had blacked out before the deceased was shot. Such a claim is inconsistent with a proper claim of self-defense bottomed on the statute quoted above in this paragraph. Since no legally satisfactory evidence was presented by defendant which could have been the basis for the giving of a self-defense instruction, it was not error for the trial court to refuse defendant’s tendered self-defense instruction. People v. Dukes, 19 Ill.2d 532, 169 N.E.2d 84, U.S. cert. denied 365 U.S. 830, 81 S.Ct. 716.

However, pursuant to Supreme Court Rule 615 (Ill. Rev. Stat. 1971, ch. 110A, par. 615), this court has the authority to reduce defendant’s sentence. Consistent with what we understand to be the indicated, policy of sentencing under the currently effective Illinois Code of Cor-, rections (Ill. Rev. Stat. 1971, ch. 38, par. 1005 — 8—1), we reduce the minimum of defendant’s sentence to 14 years so as to produce a greater spread between the minimum (which cannot be less than 14 years for a murder conviction) and the maximum imposed by the trial court.

Defendant’s sentence is therefore modified to not less than 14 nor more than 30 years and, as modified, it is affirmed.

Affirmed as modified.

DRUCKER, P. J., and LORENZ, J., concur.


author: Mr. JUSTICE GOLDBERG

text:
    Morton Zelickman et al., Plaintiffs-Appellants, v. Bell Federal Savings and Loan Association, Defendant-Appellee.
    (No. 57928;
    First District (1st Division) —
    July 23, 1973.

      Edward Atlas and Harold A. Harris, both of Chicago, for appellants.
    Cummings & Wyman, of Chicago, (Austin L. Wyman, Henry F. Vallely, and James M. Staulcup, Jr., of counsel,) for appellee.
   Mr. JUSTICE GOLDBERG

delivered the opinion of the court:

Morton and Sharlene Zelickman and Walter F. Osbom (plaintiffs) filed a second amended and supplemental complaint (referred to as “complaint”) individually and on behalf of all mortgage borrowers from Bell Federal Savings and Loan Association (defendant). Plaintiffs sought an accounting in behalf of the class they seek to represent on the theory that certain sums paid to defendant constituted a trust and earnings upon these funds should inure to the benefit of the class. The trial court sustained a motion to dismiss filed by defendant and filed a memorandum opinion in which he held that no trust was created by virtue of the dealings between plaintiffs and defendant. The opinion stated that the trial judge felt bound by the principle of stare decisis to accept the decision of this court in a previous case involving a similar attempt to establish a trust by borrowers from another savings institution. Sears v. First Federal Savings & Loan Assn., 1 Ill.App.3d 621, 275 N.E.2d 300; leave to appeal denied January 27, 1972.

Some time prior to the entry of the order of dismissal, the trial court heard arguments of counsel concerning the legal propriety of the class action in the case at bar. In a lengthy and able memorandum, the trial court held that the allegations in the complaint contain all of the requisite elements for a class action. A motion of defendant to dismiss the suit on this ground was denied. Defendant has taken a cross-appeal from this order. This aspect of the proceeding will be considered at a later point in this opinion.

Counsel for plaintiffs here, the same who represented the plaintiff in Sears, have given us a scholarly and thorough exposition of the legal questions presented. Aside from the statement of certain fundamental principles applicable here, they urge that deposits made each month by plaintiffs of sums for payment of taxes and insurance premiums, are trust funds. They predicate this contention primarily upon three key words, “deposit”, “pledged” and “authorized”. They urge that these deposits, being made for specific and limited purposes, become trust funds and that this conclusion is fortified by the pledge of the deposits, which also constitutes a trust, as well as by the use of the word “authorized”. They urge also that the decision in Sears actually supports the trust conclusion here and that defendant is a fiduciary which should be required to account. Plaintiffs contend finally that their action is not barred by rules of primary jurisdiction and exhaustion of remedies.

In response, defendant urges that advance payments for taxes and insurance do not constitute a trust in accordance with our previous holding in Sears; intention to create a trust is lacking here; deposit of funds for a special purpose does not create a trust and a pledge is not a trust. Defendant also urges that even if these advance payments were held in trust, it would not be required to account for earnings thereon. Finally, defendant contends that the Federal Home Loan Bank Board has primary jurisdiction over the issues here presented and plaintiffs have not exhausted their administrative remedies.

Development of the facts here involved must commence with a statement of the basic principle that the motion to dismiss filed by defendant admits all properly pleaded allegations of plaintiffs’ complaint. See Holiday Magic, Inc. v. Scott, 4 Ill.App.3d 962, 963, 282 N.E.2d 452, citing decisions of the Illinois Supreme Court. The complaint alleged that plaintiffs had made mortgage loans from defendant using defendant’s conventional form. Prior to May 29, 1969, defendant was an Illinois corporation but on that date it was converted to, and formally became, a federal savings and loan association. Defendant was duly chartered by the governments of Illinois and, in turn, of the United States. A sample copy of the type of mortgage signed by plaintiffs and of the type of application for loan executed by them are appended to the complaint.

The application for loan provided that the money borrowed would be repaid in payments of a designated amount, “s * * including principal and interest, plus %2 estimated taxes and Hazard Insurance * # *” with the debt secured by a first mortgage. The application also provided that the borrowers agreed to keep the mortgaged premises insured against such hazards as defendant might require for the full insurable value thereof with the policies to contain proper mortgage clauses. Plaintiffs as applicants, also covenanted:

“To deposit with you [defendant] the amount necessary to establish a reserve for taxes and insurance as outlined above so that, together with the monthly deposits hereafter made, there will be funds available to pay general taxes by January of the year in which they are due and insurance premiums two months before installments are due.”

The mortgage itself conveyed the property to defendant as mortgagee. It provided for repayment of the sum borrowed in monthly installments including interest. Any additional advances, together with interest thereon, that might be made by defendant for protection of the security, constituted additional indebtedness secured thereby. The borrowers further covenanted that the indebtedness thereby secured should include all sums agreed to be paid by them to defendant. The document also contained the following additional convenants by the borrowers:

“(3) To pay when due all taxes and assessments levied against said property or any part thereof under any existing or future law, and to deliver receipts for such payments to the Mortgagee promptly upon demand.
* e e
(9) To provide for payments of taxes, assessments and insurance premiums, stipulated to be paid hereunder, the Mortgagor shall deposit with the Mortgagee on each monthly payment date an amount equal to one-twelfth of the annual taxes and assessments levied against said premises and one-twelfth of the annual premium on all such insurance, as estimated by the Mortgagee. All such deposits as made are pledged as additional security for the payment of the principal mortgagee indebtedness. If default is made in the payment of said deposits, the Mortgagee may, at its option, charge the same to the unpaid balance of the mortgage indebtedness and the same shall bear interest at the same rate as the principal mortgage indebtedness. As taxes and assessments become due and payable and as insurance policies expire, or premiums thereon become due, the Mortgagee is authorized to use such deposits for the purpose of paying taxes or assessments, or renewing insurance policies or paying premiums thereon. In the event any deficit shall exist or the deposits are so reduced that the remaining deposits together with the monthly deposits will not provide sufficient funds to pay the then current calander [sic] year’s estimated taxes or the estimated insurance premium on the last day of said year, the Mortgagee may, at its option, either declare immediately due and payable or add to the unpaid balance of the mortgage indebtedness secured hereby such a sum which shall, together with the remaining deposits and monthly
deposits, provide sufficient funds to pay one year’s estimated taxes or insurance premiums on the last day of said year.”

The mortgage further provided that time was of the essence thereof and in event of default by plaintiffs- as to any covenants therein “* # * or in making of any deposits required hereunder * * defendant was authorized without notice to declare all sums secured by the mortgage then immediately due and payable and to foreclose. The complaint further alleged that plaintiffs paid to defendant all deposits of taxes' and insurance required and that each year defendant refunded to any borrower upon request the excess of tax and insurance reserves over the amount required to pay taxes and insurance premiums payable in that year. The complaint alleged that these monies paid to defendant by plaintiffs as tax and insurance deposits were held by defendant as a trustee or fiduciary so that defendant owed a duty to segregate the trust funds and to account to plaintiffs for earnings and profits resulting therefrom. It alleged that defendant has violated this duty by commingling these funds with its general assets and by earning large sums of money therefrom so that defendant has become unjustly enriched; or, in the alternative, has converted these earnings to its own use.

The complaint further alleged that there is no provision in Federal law, or in the law of Illinois, which would afford administrative relief to plaintiffs and the class they represent. It also contained allegations describing the class and purporting to show the necessity for class action and also that plaintiffs’ representation of the class would be fair. The motion to dismiss averred that the complaint was substantially insufficient in law for failure to state a cause of action; raising generally the same grounds successfully urged by defendant in the trial court and repeated here.

We have made a careful analysis of the legal documents involved in the case at bar with particularized comparison to those with which we dealt in Sears. We have concluded that we should reach here the same result as in the previous case. As we said in Sears, the basic legal problem is the time meaning of the language used in the agreement between the parties. In the case at bar, the loan application and the mortgage constitute a binding agreement between these parties. Defendant has performed its covenants by advancing the necessary money to plaintiffs and taking the specified security in return. The rights of these parties must necessarily be governed by the provisions of their own contract.

In Sears, we defined “express” and “implied” as used in connection with trusts. The same definitions and reasoning are applicable here. (See 1 Ill.App.3d at 626, 627.) We will first consider whether the language in the two pertinent documents involved here is sufficient to create an express trust. As we stated in Sears, we cannot give- effect only to portions of these documents. “Each clause and all of the language used must, if possible, be given meaning, life and effect.” See Sears, 1 Ill.App.3d at 627 and cases there cited.

In our opinion, no express trust can be drawn from the language of the loan application or of the mortgage or from both of these documents combined. Plaintiffs covenanted to pay when due all taxes and assessments and all insurance premiums. Payment of these items thus became a primary obligation of plaintiffs with the contractual right vested in defendant to advance these items in default of payment by plaintiffs. Consequently, paragraph 9 of the mortgage above quoted should necessarily be construed simply as another security device granted expressly to defendant as mortgagee to assist it in making certain that, when the taxes and insurance premiums come due, funds will be available for their prompt payment. In no sense can the language of this instrument be construed as creating an express trust for the benefit of plaintiffs. It is an additional contractual security device for the protection of defendant’s rights as a creditor, specifically agreed to in the contract between the parties.

In this regard, we incline to the opinion that the mortgage papers in the Sears case might come closer to an express trust than the legal documents here involved. The note in Sears created various options in the mortgagee with Option 1 actually providing for the monthly payments to be held in trust without earnings and with Option 2 providing that the payments be carried in a borrower’s tax and insurance account and withdrawn by the Association to pay these items. (1 Ill.App.3d at 625.) The mortgage in the case at bar is dissimilar- and simply provides that plaintiffs shaU deposit the sums in question with the defendant to provide for payment of taxes, assessments and insurance premiums.

Each and all of the points weU raised and exhaustively presented here by counsel for plaintiffs was considered and rejected in Sears. Plaintiffs emphasize here an alleged difference between tire documents in Sears and those here. As we pointed out in Sears, one single highlight of the legal documents there involved, was the fact that the note used the concept of payment seven or eights times without making reference to a deposit of funds. (1 Ill.App.3d at 629.) In the case at bar, paragraph 9 of the mortgage above quoted provides that the funds shall be deposited to “provide for payments of taxes, assessments and insurance premiums * * However, as so well pointed out in the opinion of the learned trial judge, which has been made a part of the record before us, the result in Sears was not based solely upon “payment” as distinguished from “deposit.” Our former opinion also emphasized a number of other important elements including the need to examine and to give “meaning, life and effect” to all of the pertinent language in the legal document in question. 1 Ill.App.3d at 627.

We pointed out the absence of language requiring that the tax and insurance account by “segregated”, “separated” or “isolated.” (1 Ill.App.3d at 628.) We commented upon language in the note authorizing payment by the mortgagee of the taxes and insurance as charged or billed without further inquiry. (1 Ill.App.3d at 628.) There is similar language in the instant mortgage authorizing defendant to use the deposits for payment of taxes or insurance premiums. There is a pledge of the tax and insurance account in Sears as further security for the indebtedness due (1 Ill.App.3d at 630) with similar language in the instant mortgage (par. 9 above quoted.) There was a lack of provision in the Sears documents for repayment of deposits. (1 Ill.App.3d at 631.) Also, we specifically concluded in the Sears opinion that even if the payments there were described as “deposits”, as distinguished from “payments”, no trust would result.' (1 Ill.App.3d at 631.) Virtually every important factor which contributed to and impelled our decision in Sears, that no express trust was created by the parties, is present and operative in the case at bar.

Furthermore, in Sears we also pointed out the complete lack of “a res or specific property” which “is essential for the existence of a trust.” (1 Ill.App.3d at 631.) This is precisely apphcable in the case at bar. In Sears, we commented upon the lack of a “a segregated deposit set up solely for a specific purpose.” (1 Ill.App.3d at 631.) The same situation exists in the present case. We also cited and quoted from other cases and from the regulations of the Federal Home Loan Bank Board, all of which supported the conclusion that there was no trust in Sears. (1 Ill.App.3d at 632, 633, 634.) A11 of these authorities are apphcable here. We conclude that the pertinent legal documents in the case at bar do not create an express trust.

We note the aUegation in the complaint at bar that defendant has refunded “to any borrower upon request” the excess of the tax and insurance reserve over amounts necessary for payment of taxes and insurance. As pointed out by the trial court in his memorandum, any such payments would simply be a voluntary waiver by defendant of contractual legal rights.

The next inquiry is whether an implied trust arises from the relationship of these parties as alleged in the complaint. In Sears, we stated that “Implied trusts may be further categorized into constructive and resulting trusts.” (1 Ill.App.3d at 627). We are not dealing here with a resulting trust which is generally defined and limited to situations in which land or other property “* * * is bought with the money of one person and title is taken in the name of another.” (Suwalski v. Suwalski, 40 Ill.2d 492, 495, 240 N.E.2d 677.) A constructive trust arises solely by operation of law and then, by way of a general definition, “* * * only when fraud is proved or when advantage is taken of a fiduciary relationship by the dominant party.” (Perry v. Wyeth, 25 Ill.2d 250, 253, 184 N.E.2d 861.) There are no allegations in the complaint regarding fraud of any kind. Also, there is no fiduciary or confidential relationship existing under the law of Illinois merely by virtue of the relationship of mortgagor and mortgagee. (De Phillips v. Mortgage Associates, Inc., 8 Ill.App.3d 759, 763, 291 N.E.2d 329.) There are no allegations in the complaint at bar from which a fiduciary or confidential relationship or the reposing of confidence by one person in another could be deemed to exist. No facts are pleaded here which give rise to a trust ex maleficio, a designation sometimes given to a constructive trust. (Bogert Trusts, 2nd Ed., sec. 471, p. 9.) There are no allegations in the complaint here which show an abuse of confidence by defendant. Dial v. Dial, 17 Ill.2d 537, 540, 162 N.E.2d 404.

In oral argument, counsel for plaintiffs cited the- recent decision in Carpenter v. Suffolk Franklin Savings Bank, (Mass.), 291 N.E.2d 609. There, the Supreme Judicial Court of Massachusetts reversed dismissal of a complaint praying an accounting from a mortgagee as to monthly payments of l/12th of the general taxes deposited by the mortgagor. The court held that the complaint stated a cause of action and renamed the cause for trial. The court pointed out that the complaint alleged that the tax payments were held by the defendant “as escrowee.” (291 N.E.2d at 614.) This is completely different from the situation at bar in which we have no agreement by the parties for segregation, separation or isolation of the tax and insurance account. Also, we have complete lack of any allegation in the complaint that the funds were to be held in escrow as in Carpenter.

The Carpenter opinion states that there was nothing in the allegations of the complaint in that case which “necessarily precludes a fiduciary relationship * * (291 N.E.2d at 615.) In the case before us, such relationship is precluded by Illinois law because of the very nature of the transaction. Further, Carpenter deals first with the concept of an express trust (291 N.E.2d at 614) and thereafter with the theory of a constructive trust arising from the possibility of a fiduciary relationship. In the case at bar, the existence of an express trust has been negated. The allegations of the complaint at bar fall far short of setting before us a factual background which constitutes á constructive trust. Plaintiffs complaint alleged that defendant has become unjustly enriched by the earnings from the tax deposit; or, in the alternative, has converted these earnings to its own use. These allegations are pure conclusions which are not admitted by the motion to dismiss. There are no well pleaded allegations creating a factual situation of constructive trust. (See Heyman v. Mahin, 49 Ill.2d 284, 291, 275 N.E.2d 421.) Note also Dial v. Dial, 17 Ill.2d 537, 162 N.E.2d 404, dealing with the sufficiency of a complaint seeking to establish a constructive trust.

The facts in the case before us present no fraud, no confidential or fiduciary relationship, no abuse thereof, and no default or conversion of any kind. Under no circumstances can we glean from the allegations of the complaint any facts justifying the imposition of a constructive trust.

We do not find it necessary to pass upon any of the remaining contentions presented by the parties not already considered. Similarly, we need not decide the issues presented by the cross-appeal regarding the sufficiency of the complaint as a class action. Since we have held that plaintiffs have no individual cause of action, it would follow necessarily that any attempted class action must fail. See De Phillips v. Mortgage Associates, Inc., 8 Ill.App.3d 759, 764, 291 N.E.2d 329, which we have followed in Janes v. First Federal Savings b Loan Association of Berwyn, 11 Ill.App.3d 631, and also in Corbett v. Devon Bank, 12 Ill.App.3d 559.

Judgment affirmed.

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


author: PER CURIAM.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Curtis Evans, Defendant-Appellant.
    (No. 57452;
    First District (2nd Division) —
    July 24, 1973.
    James J. Doherty, Public Defender, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago, for the People.
   PER CURIAM.

LEIGHTON, J., took no part.