text:
      In re MARRIAGE OF MARY ELLEN LOWE, Petitioner-Appellee, and ANDREW C. LOWE, Respondent-Appellant.
    Second District
    No. 81-165
    Opinion filed November 3, 1981.
    Law Offices of Paul S. Chervin, Ltd., of Waukegan, for appellant.
    William G. Rosing and Stephen G. Applehans, both of Rosing, Carlson and Magee, of Waukegan, for appellee.
   Mr. JUSTICE REINHARD

delivered the opinion of the court:

This appeal arises from an order of the circuit court of Lake County finding that a marital settlement agreement was not ambiguous and denying a petition seeking a declaration that payment of $17,500 under the terms of the agreement was maintenance. The only issue for our review is whether the settlement agreement was so ambiguous on its face as to require an evidentiary hearing on the issue of whether the $17,500 payment should be considered a property settlement or future maintenance.

The parties to this appeal, Mary Ellen Lowe (Mary Ellen) and Andrew C. Lowe (Andrew), were divorced in 1975. The judgment incorporated a written settlement agreement which provided in pertinent part:

“3. The Plaintiff agrees to Quit-Claim all interest in:
a. Family home in Wildwood, Ill.
b. Vacant lot adjacent to family home in Wildwood, Ill.
c. House at 5629 S. Natoma, Chicago, Ill.
d. Forty acre farm in Franklin Parish, Louisiana
4. For and in consideration of the Quit-Claims in Par. 3 (above) the
Defendant agrees to pay to the Plaintiff the following sums:
a. $10,000 as soon after the filing of the Complaint for Divorce as possible. Actually paid July 11,1975.
b. An additional sum of $10,000 to be paid by 90 days after the signing of the Decree for Divorce.
c. An additional sum of $17,500 to be paid when the youngest boy reaches 18 years of age, except that if the Plaintiff remarries some one other than the Defendant at which time this $17,500 shall be waived.”

On July 29,1980, Andrew Lowe filed a petition in the circuit court of Lake County seeking a judgment finding the unpaid $17,500 to be maintenance and terminating his obligation to pay it. The petition alleged that since 1977, Mary Ellen Lowe had cohabited with another person on a resident, continuing conjugal basis and that section 510(b) of the Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 510(b)) terminates the obligation to pay future maintenance upon the occurrence of such an event. Mary Ellen Lowe filed a response to the petition denying all material allegations and asking that the cause be dismissed.

Subsequently, Andrew Lowe filed a petition praying “for a hearing on the issue of [the settlement agreement’s] ambiguity and the allowance of the Petitioner’s testimony regarding parol evidence to determine the intention of the parties.” This was opposed by a petition of Mary Ellen Lowe which also requested immediate payment of the $17,500.

After hearing an offer of proof by Andrew and argument of the parties on February 4,1981, the court ruled that the terms of the property agreement were not ambiguous, denied Andrew Lowe’s request to consider parol evidence, and denied his petition to consider the $17,500 as future maintenance. The court ordered payment of the $17,500 since the youngest boy had reached the age of 18 and since Mary Ellen Lowe had not remarried.

Andrew Lowe contends that his obligation to pay the $17,500 contained in paragraph 4(c) of the property settlement agreement is terminated by operation of section 510(b) of the Marriage and Dissolution of Marriage Act. (Ill. Rev. Stat. 1979, ch. 40, par. 510(b).) That section provides:

“The obligation to pay future maintenance is terminated upon the death of either party, or the remarriage of the party receiving maintenance, or if the party receiving maintenance cohabits with another person on a resident, continuing conjugal basis.” (Ill. Rev. Stat. 1979, ch. 40, par. 510(b).)

Therefore, in order for Andrew Lowe to prevail, we would have to determine that the $17,500 payment is in the nature of future maintenance rather than in the nature of a property settlement. Provisions of what is construed as a property settlement are not modifiable or revocable “unless the court finds the existence of conditions that justify the reopening of a judgment under the laws of this State.” (Ill. Rev. Stat. 1979, ch. 40, par. 510(a); Lamp v. Lamp (1980), 81 Ill. 2d 364, 369, 410 N.E.2d 31.) However, payments construed as future maintenance may be modified upon a showing of “a substantial change in conditions.” (Ill. Rev. Stat. 1979, ch. 40, par. 510(a).) One such change in conditions which justifies the modification of maintenance is “if the party receiving maintenance cohabits with another person on a resident, continuing conjugal basis.” Ill. Rev. Stat. 1979, ch. 40, par. 510(b).

In the present case, the complaint for divorce was filed prior to the enactment of the new Illinois Marriage and Dissolution of Marriage Act. The petition for modification was filed after the new act’s effective date. The earlier act contained no such provision for the termination of alimony (maintenance) payments upon a showing of resident, continuing conjugal cohabitation. However, it is clear that the provisions of section 510(b) will still apply to the case at bar. Section 801(c) provides that the Marriage and Dissolution of Marriage Act “applies to all proceedings commenced after its effective date for the modification of a judgment or order entered prior to the effective date of this Act.” (Ill. Rev. Stat. 1979, ch. 40, par. 801(c); see also Ihle v. Ihle (1981), 92 Ill. App. 3d 893, 895, 416 N.E.2d 366, and In re Support of Halford (1979), 70 Ill. App. 3d 609, 610, 388 N.E.2d 1131.) The application of section 510(b) is mandatory and may not be avoided either by courts or by parties to the settlement agreement purportedly providing maintenance terminating events to the contrary. (Warren v. Warren (1980), 88 Ill. App. 3d 543, 547, 410 N.E.2d 915; In re Marriage of Bramson (1980), 83 Ill. App. 3d 657, 661, 404 N.E.2d 469.) As stated by the court in In re Support of Halford (1979), 70 Ill. App. 3d 609, 388 N.E.2d 1131, “it was the intention of our legislature to provide for the termination of an ex-spouse’s obligation to pay future maintenance whenever the spouse receiving the maintenance has entered into a husband-wife relationship with another, whether this be by legal or other means.” 70 Ill. App. 3d 609, 612, 388 N.E.2d 1131.

In order for us to determine whether the $17,500 payment is maintenance or a property settlement, it is necessary to define the characteristics of each.

Periodic alimony (maintenance) has been defined as follows:

“It is for an indefinite period of time and usually for an indefinite total sum. It is based upon the husband’s income and the needs of the wife determined from the standpoint of the manner in which they have been accustomed to live. It is modifiable after decree when the wife’s needs increase or decrease, or when the husband’s ability to pay increases or decreases. This is so because it takes the form of periodic allowances which do not vest until they become due. It usually terminates upon the death of the husband, although by agreement payments may be made a charge upon the husband’s estate after they become due. They are never a charge on a husband’s estate in advance of the due date because they are not, prior to that time, vested. Payments of alimony from husband to wife are not based upon any consideration moving from wife to husband, but are based upon the common-law duty of the husband to support his wife. ‘Alimony’ in this sense of the word, is modifiable.” Walters v. Walters (1950), 341 Ill. App. 561, 567-68, 94 N.E.2d 726, affirmed (1951), 409 Ill. 298, 99 N.E.2d 342. Also quoted in Pacione v. Pacione (1980), 81 Ill. App. 3d 600, 604-05, 402 N.E.2d 316, and Warren v. Warren (1980), 88 Ill. App. 3d 543, 546, 410 N.E.2d 915.

On the other hand, a property settlement has been defined as a sum certain, often payable in installments, passing between the parties as consideration for their release of their marital rights. Jacobson v. Jacobson (1964), 50 Ill. App. 2d 244, 247-48, 200 N.E.2d 379.

In the recent case of Ihle v. Ihle (1981), 92 Ill. App. 3d 893, 416 N.E.2d 366, the court applied the above principles to ascertain the intent of the parties to an agreement which contained language very similar to the settlement agreement in the case at bar. In Ihle, the marital settlement agreement provided that the defendant would pay the plaintiff “alimony in gross” in the sum of $44,100 in monthly installments of $525. The payment of these installments was to terminate upon the plaintiff’s remarriage or death. The defendant filed a petition to terminate alimony alleging that the plaintiff’s continual, conjugal cohabitation terminated his obligation under section 510(b) of the Marriage and Dissolution of Marriage Act. The appellate court determined that the parties intended the payments to constitute alimony in gross in the nature of a property settlement since the agreement ordered defendant to pay a sum certain in monthly installments and the payments would have expired in a definite period of time. The court stated that the provisions terminating the installments upon the death or remarriage of the plaintiff did not change the nature of the payments to periodic alimony. The court further indicated that its conclusion was reinforced by another paragraph in the agreement which provided that both parties would be precluded from ever obtaining permanent alimony. The court concluded that since the payments were intended as a marital property settlement, the obligation to pay them could not be revoked pursuant to section 510(b). Finally, the court held that the trial court had not abused its discretion in failing to hold an evidentiary hearing since the intent of the parties was clear from the plain, unambiguous text of their agreement.

The parallels between the Ihle case and present case are obvious. The intent of the parties that their agreement constitute a property settlement could not be more clear. The agreement plainly provides that the payments from Andrew Lowe to Mary Ellen were “[f]or and in consideration of” the petitioner quit-claiming her interest in various pieces of marital property. Also, in paragraph one of the agreement both parties expressly waived all claims to alimony. However, the clearest indication of the nature of the agreement is the fact that it provides for a definite total sum which was to be paid at the end of a definite period of time rather than on a periodic basis for an indefinite period of time which is characteristic of maintenance. We agree with the Ihle court’s statement that a provision terminating the obligation to pay an installment upon the remarriage of the recipient does not change the nature of the payment to maintenance.

Andrew’s citation of Sudler v. Sudler (1972), 6 Ill. App. 3d 546, 286 N.E.2d 113, cert. denied (1977), 429 U.S. 921, 50 L. Ed. 2d 288, 97 S. Ct. 318, is not persuasive. In Sudler this court held that since the settlement agreement contained characteristics of periodic alimony and also language commonly identified with a lump sum agreement, the agreement was ambiguous and extrinsic evidence was necessary to determine the parties’ intent. In the present case, the only provision of the agreement that is even arguably suggestive of maintenance is that the $17,500 is waived upon the remarriage of Mary Ellen. As Ihle and other cases illustrate, such a provision is not uncommon in a property settlement and does not change the nature of the agreement to periodic maintenance. 92 Ill. App. 3d 893, 896, 416 N.E.2d 366; see also Roberts v. Roberts (1967), 90 Ill. App. 2d 184, 190, 234 N.E.2d 372.

Since we have determined that the agreement constitutes a property settlement, it is not modifiable except under conditions which would justify the reopening of a judgment. (Ill. Rev. Stat. 1979, ch. 40, par. 510(a).) Also, since the agreement was not ambiguous the trial court did not err in failing to hold an evidentiary hearing. 92 Ill. App. 3d 893, 898-99, 416 N.E.2d 366.

Andrew further contends that the fact he appeared pro se at the time the settlement agreement was incorporated into the divorce decree entitles him to an evidentiary hearing. He cites our opinion in In re Marriage of Beck (1980), 83 Ill. App. 3d 976, 404 N.E.2d 972, as support for this contention. Beck is clearly inapposite to the facts herein as our holding in that case, which reversed the dismissal of a section 72 (Ill. Rev. Stat. 1979, ch. 110, par. 72) petition after a hearing, was based on a fraud committed upon the wife when an attorney, who was selected by the husband’s attorney, agreed to an oral settlement without consulting or even meeting the wife. Here there is no allegation of fraud, the unambiguous settlement agreement is signed by Andrew and he was present when the judgment was entered by the court. The mere fact that the agreement in the present case appears to have been drafted by Mary Ellen’s attorney and that Andrew appeared pro se when it was incorporated into the divorce decree does not in any way bear on the question of the agreement’s ambiguity or lack thereof.

For the above stated reasons the judgment of the circuit court of Lake County is affirmed.

Affirmed.

NASH and LINDBERG, JJ., concur.


source: Caselaw Access Project

author:
Mr. JUSTICE BARRY
      Mr. PRESIDING JUSTICE SCOTT,

license: Public Domain

text:
      In re TIFFANY A. DOOLAN, a Minor.—(THE PEOPLE OF THE STATE OF ILLINOIS, Petitioner-Appellee, v. JUNE DOOLAN, Defendant-Appellant.)
    Third District
    No. 80-419
    Opinion filed October 30, 1981.
    SCOTT, P. J., dissenting.
    Clifton J. Mitchell, of Prairie State Legal Services, of Peoria, for appellant.
    John A. Barra, State’s Attorney, of Peoria (John X. Breslin and Terry A. Mertel, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   Mr. JUSTICE BARRY

delivered the opinion of the court:

June Doolan appeals from an order of the circuit court of Peoria County terminating her parental rights to her daughter Tiffany Doolan. The court found that, following the 1977 removal of the child from the mother’s custody, June Doolan failed to remedy the causes of the removal and she failed to make reasonable progress toward the return of the child within 12 months of the removal. The court concluded that the mother was unfit and ordered all her parental rights and responsibilities terminated.

According to the record, June Doolan was 29 years old at the time of this hearing in the proceeding to terminate her parental rights (June of 1980), and her daughter Tiffany was six years old. The mother has never been married and has completed less than 10 years of schooling. (She had previously surrendered an older child for adoption.) In December of 1976 Tiffany was adjudicated to be neglected and was made a ward of the court in La Salle County with physical custody remaining with the mother. In May of 1977, when Tiffany was 2 years old, she was struck by a car while playing near a highway in Utica, Illinois. According to the Department of Children and Family Services caseworker and the homemaker who were working with the mother at that time, the mother often allowed the little girl to play outside near the highway without supervision. As a result of the accident, Tiffany was hospitalized in St. Francis Hospital in Peoria, and the mother then moved to Peoria.

Tiffany and her mother resided with relatives in Peoria, and a caseworker worked with the mother to help her look for employment and housing. In October of 1977 Tiffany was again hospitalized for a few days with a rash. The mother was notified to come to take her home on October 12, 1977. When the mother failed to appear, a juvenile neglect petition was filed in Peoria, and temporary custody was given to DCFS. Later permanent custody was given to the Department, and the La Salle County proceedings were transferred to Peoria as well. DCFS caseworkers continued to try to help the mother, and monthly visitation with Tiffany was arranged at the DCFS office. Finally in December of 1978, the Department filed a petition seeking to terminate the mother’s parental rights. Pursuant to Department policy, the caseworker suspended all visitation after the petition was filed. About six months later, monthly visitation was resumed at the request of the mother’s attorney.

The primary issue upon appeal is whether the mother made reasonable progress toward the return of her child within 12 months after the removal. Section 1 of the Adoption Act sets forth the grounds for a finding of unfitness, including, “(m) Failure to make reasonable efforts to correct the conditions which were the basis for the removal of the child from his parents or to make reasonable progress toward the return of the child to his parents within 12 months after an adjudication of neglected minor under Section 2 — 4 or dependent minor under Section 2 — 5 of the Juvenile Court Act.” Ill. Rev. Stat. 1979, ch. 40, par. 1501(d).

As this court stated in a recent case, “The standard in cases of parental unfitness is proof by clear and convincing evidence [citation] and the trial court’s decision should not be disturbed on appeal unless against the manifest weight of the evidence [citation].” (In re Bentsen (1980), 90 Ill. App. 3d 269, 412 N.E.2d 1167.) It has been held that the statute requires proof of either a failure to make a reasonable effort or a failure to make reasonable progress in order to support a finding of unfitness. (In re Austin (1978), 61 Ill. App. 3d 344, 378 N.E.2d 538.) The question of what is a reasonable effort involves a subjective judgment based upon the amount of effort which is reasonable for a particular person, while the question of what is reasonable progress is more objective, depending upon the amount of progress measured from the conditions existing at the time custody was taken from the parent. (In re Bennett (1980), 80 Ill. App. 3d 207, 399 N.E.2d 735.) We think this distinction is important in the case before us.

The mother argues that she has made good progress toward the return of her child and that she has met all the goals which were set for her by her caseworker. According to the record, when Tiffany was first adjudicated to be neglected, the mother was living with the little girl’s putative father; he was handling the mother’s ADC funds in such a way that there was often insufficient money for food; the mother did not interact well with her daughter and did not give her adequate care; and the mother was slovenly in her dress and failed to provide sufficient meals for the child. At the time custody was given to the Department, the mother was living with relatives and was not handling the day-to-day requirements of caring for her small daughter with any better success than previously. Her caseworker testified that the mother was given three goals: (1) to work with the Department of Mental Health; (2) to find employment; and (3) to find an apartment. According to the record, when the petition to terminate the rights was filed, the mother did not have her own apartment and she had not found regular employment, although she had worked with the Department of Mental Health.

Without going into a lengthy recitation of details, we must note that the Department has provided extensive help to the mother in an effort to correct the deficiencies in her parenting abilities. Before she moved to Peoria, she was provided with a homemaker who spent five hours daily with the mother. After the mother moved to Peoria, a second homemaker helped her look for a job. The mother obtained three different jobs, each for a short time, but she was fired from each for various reasons. The first Department caseworker testified that the mother made very little progress from August 1977 to December 1978. Since the mother lost custody in October of 1977, it is clear that almost no progress was made by the mother during the first 12 months after losing custody. She failed to keep nearly half her appointments with Department personnel; she refused to cooperate with the homemaker service; she did not have her own apartment; and she did not find steady employment. A new caseworker took over in December of 1978, and beginning in January of 1979, the mother attended the Community Workshop where she apparently learned some general employment skills and acquired basic work habits. Her vocational counsellor at the Workshop described the mother as “a blob” who was slow and often late when she first began attending the workshop, but after seven months she showed improvement and was assigned more responsible work. She lived at the YWCA for a time, and then in March of 1979 moved to a “half-way house” where she shared housekeeping responsibilities with other residents. In July of 1979 the mother obtained employment cleaning motel rooms, and in December of 1979 she found an apartment, on her own. Thus, the evidence in the record demonstrates that the mother made a great deal of progress, much of it coming after January of 1979.

The current caseworker testified to the mother’s progress, but stated that she did not believe Tiffany should be returned to her mother because the mother has thus far been unable to make plans for caring for the child. The mother lacks transportation, and, in the opinion of the caseworker, cannot be counted on to make arrangements for getting the little girl to school and to day care.

The standard for the court to apply is “reasonable progress,” which was defined in In re Austin as follows:

“[Accordingly, the term ‘reasonable progress’ requires at a minimum measurable or demonstrable movement toward the goal of return of the child. Whether a small amount of progress is ‘reasonable’ must be determined with proper regard for the best interests of the child. Such an inquiry might well involve consideration of the limitations of the parents, but also would necessarily require consideration of the possibility that the child might be forced to indefinitely reside with a succession of impermanent foster parents. Reasonableness may also depend on the situation which led to removal of the children, since slight progress in correcting a situation which was relatively mild could be viewed as more satisfactory than the same degree of progress in correcting a situation that greatly endangered a child.” (61 Ill. App. 3d 344, 350, 378 N.E.2d 538, 542-3; In re Bennett, 80 Ill. App. 3d 207, 211, 399 N.E.2d 735, 738.)

On the basis of the record, we believe the mother has made some objective, demonstrable movement toward accomplishing the goal of return of the child. Whether that progress is less than “reasonable” so as to justify terminating her parental rights is a much more difficult question. The mother by her own admission is a “slow learner.” The Department and other State agencies have worked with her for several years in an effort to teach her to care for herself and her daughter. We think it obvious that the mother did not make reasonable progress at first, but beginning in January 1979, her progress was so great that it would have to be characterized as “reasonable.” The court heard extensive evidence from both the State and the mother concerning the mother’s progress after the initial 12-month period had expired. We thus believe the parties have conceded that the fitness of the mother should be measured by her progress from October 1977 until the date of the hearing, June of 1980. (Cf. In re Hillyer (1980), 82 Ill. App. 3d 505, 403 N.E.2d 36.) On the basis of all the evidence, we believe the trial court erred in finding the mother unfit.

The fact that the mother’s parental rights should not be terminated does not mean that custody should be restored to her immediately. The record indicates that the Department has never allowed the mother to visit her daughter for more than one hour per month and that those visits have been at the Department office in the presence of the caseworker. The mother’s relationship to her daughter is admittedly not close, and her ability to care for her daughter is unproven. At this time, after four years of separation, it may be difficult for a close relationship to be reestablished. However, we believe the mother is entitled to a better chance to prove her ability to care for her daughter than she has been given under the one-hour-per-month policy.

We recognize that cases of this kind are difficult, and that the caseworkers must exercise their best judgment in trying to serve the best interest of the child. During the time when the mother was unemployed, was undependable in keeping appointments, and lacked independent housing, it was no doubt prudent to restrict the visits in order to provide her with a motivation to correct these deficiencies. But in more recent months when the mother has made notable progress in caring for herself and in her ability to interact with her daughter during visits, the Department could have permitted longer visits under more varied circumstances. We believe the best interest of the child requires that this cause be remanded for further proceedings in the circuit court of Peoria County to determine the questions of visitation and of temporary and permanent custody.

Reversed and remanded.

STOUDER, J., concurs.

Mr. PRESIDING JUSTICE SCOTT,

dissenting:

I disagree with the result set forth in the majority opinion. My colleagues recognize that our legislature has determined that reasonable progress toward the return of a child to its parents must be made within 12 months of the removal of the child. The intent of this requirement is clearly apparent. The legislature desired to avoid a prolonged period during which a child is held in a state of flux while a parent or parents attempt to correct their life-style. In the case being considered the minor child, Tiffany, was held in a state of flux for a period in excess of 30 months prior to the trial court’s determination that the parental rights of the respondent mother be terminated. The result reached by the majority would reinstate the “period of flux” by reversing the trial court, yet directing that the child’s custody remain in the Department while the respondent is given additional time to correct her life-style.

In my opinion the record fails to shed any ray of hope that the respondent mother will rehabilitate or correct her life-style in the additional time granted to her by the result reached in the majority opinion.

Prior to the Department obtaining custody of Tiffany, the child’s health and safety was endangered by the inability of the respondent to understand her parental duties. However, directing our attention to the period commencing on November 8, 1977, and ending in June 1980, the record discloses a bare minimal improvement as far as the respondent’s life-style was concerned. During that period of time the respondent failed to obtain steady employment, though directed to do so. The record discloses that during the period in question the respondent was employed at a Pancake House, a nursing home, a Steak and Shake restaurant, at Lum’s (a fast food business), the Community Workshop, and at the Days Inn. With the exception of the latter place, the respondent was unable to stay employed. She was either discharged or after working a few days would quit. She was employed at the Days Inn motel at the time her parental rights were terminated. She commenced working at the Days Inn in July of 1979 and while as stated she was still employed at that business in June 1980, her work was not entirely satisfactory due primarily to tardiness.

The Department also insisted that the respondent find suitable housing. The record discloses that even with the help of the Department she had difficulty in complying with this request. During the period of time in question she lived with two different families, at the Y.W.C.A., and the Monroe House, which is a half-way house operated by the Human Services Center. The Department had difficulty locating the respondent because of her failure to inform the Department of her address.

During a 14-month period the respondent had but eight visits with her child, Tiffany, and only four to six of these visits were requested by the respondent.

The severance of parental bonds is a drastic measure; however, I believe that the same is mandated in the instant case. The minor child is entitled to a stable, enduring home provided by responsible parents. (See In re Austin (1978), 61 Ill. App. 3d 344, 378 N.E.2d 538.) The record in the instant case belies the respondent’s assertion that she can provide such a home and further illustrates the fact that the respondent is unable to assume and exercise those duties and responsibilities incumbent upon a parent. I believe that the trial court’s determination that the respondent’s parental rights should be terminated was supported by the evidence and should be affirmed.


author: Mr. JUSTICE STOUDER

text:
    DOROTHY RHODES, Adm’r of the Estate of Harry Rhodes, Deceased, Plaintiff-Appellant, v. UNIROYAL, INC., Defendant-Appellee.
    Third District
    No. 81-4
    Opinion filed November 5, 1981.

      Roger D. Rickmon, of Murphy, Timm, Lennon, Spesia and Ayers, of Joliet, for appellant.
    Michael Gahan, of Thomas, Wallace, Feehan & Baron, Ltd., of Joliet, for appellee.
   Mr. JUSTICE STOUDER

delivered the opinion of the court:

Plaintiff, Harry Rhodes, later amended to Dorothy Rhodes as administrator of the estate of Harry Rhodes, deceased, filed a complaint against the defendant, Uniroyal, Inc., seeking access to property controlled by the defendant in order to investigate the nature of an injury suffered by Harry Rhodes during his employment by the defendant. In addition, plaintiff requested attorneys’ fees and punitive damages. Access to the property was allowed pursuant to an agreement between the parties. Upon trial of the issues of recovery of attorneys’ fees and punitive damages, the jury returned a verdict in the amount of $15,000 in favor of plaintiff. Thereafter, on defendant’s post-trial motion, the trial court entered a judgment notwithstanding the verdict in favor of the defendant.

Harry Rhodes, plaintiff’s decedent, an employee of the defendant, was injured at defendant’s Will County plant facility on August 21, 1973. His injuries consisted primarily of extensive acid burns to his face and hands.

After his injury, Harry Rhodes and his legal counsel requested permission of the defendant to enter the plant facility where he had been employed in order to examine the instrumentality of his injury and to ascertain whether any third party actions were viable. At this time defendant determined that such investigation was against corporate policy and that Harry Rhodes and his representatives did not have a “need to know.” This decision was made pursuant to the terms of defendant’s established visitation procedures as formulated in conjunction with the United States Army. Defendant’s plant facility is owned by the United States Government, the defendant being a contractor given responsibility for the security of that facility. Accordingly, the defendant refused all requests made on behalf of Harry Rhodes to enter the plant facility.

On June 7, 1974, Harry Rhodes filed a complaint against the defendant alleging that defendant, notwithstanding the plaintiff’s requests to have his representatives enter and inspect the defendant’s plant facility in Will County, did wrongfully, wilfully, outrageously and maliciously refuse to allow such inspection. That complaint sought entry onto said premises, prayed that plaintiff be awarded his expenses, including reasonable attorneys’ fees and finally asked that punitive damages be assessed against the defendant.

On June 24, 1974, the attorneys for each of the respective parties agreed that if the trial court would not issue a formal order the defendant would allow an inspection. On July 1,1974, an inspection was made of the Will County plant facility.

The jury returned a verdict in favor of plaintiff for $15,000. Upon the post-trial motion of the defendant the trial court entered a judgment notwithstanding the verdict in favor of the defendant, stating that the complaint failed to state a claim upon which further relief in the nature of attorneys’ fees and punitive damages could be granted subsequent to the previous inspection of the property by the plaintiff’s attorney. The court also found that the complaint was in the nature of a bill of discovery for which punitive damages and attorneys’ fees are not properly recoverable.

The primary issue presented for review is whether plaintiff’s complaint fails to state a cause of action for which attorneys’ fees and punitive damages may be awarded.

Recently Goetz v. Avildsen Tool & Machines, Inc. (1980), 82 Ill. App. 3d 1054, 403 N.E.2d 555, dealt with the right of an employee injured at his work place to seek access to the site of his injury in order to investigate the possibility of third-party actions. In Goetz the court stated that the plaintiff failed to point to pertinent authority to support her position of a claimed duty on the part of the defendant-employer to allow her to inspect the machine which injured her. The court agreed with defendants that the plaintiff had no right of inspection prior to her instituting a lawsuit and requesting discovery since the parties were adversaries in a workmen’s compensation proceeding. “When denied access to the information, plaintiff appropriately sought the information through legal action and discovery. Likewise, defendant’s failure to answer the interrogatories should have been disposed of through the request for sanctions (Ill. Rev. Stat. 1975, ch. 110A, par. 219(c)) or for protective orders (Ill. Rev. Stat. 1975, ch. 110A, par. 201(c)) in accordance with the appropriate discovery procedures.” 82 Ill. App. 3d 1054, 1063.

Similarly, in the case at hand, defendant had no legal duty to allow an inspection of the site of Harry Rhodes’ injury prior to the institution of a lawsuit with accompanying discovery proceedings. Once a lawsuit had been filed by plaintiff and defendant later agreed to an inspection, no further cause of action existed for the recovery of attorneys’ fees and punitive damages.

In addition, the recovery of attorneys’ fees and cost of litigation are not proper unless authorized by statute or agreed to by contract. (Kerns v. Engelke (1979), 76 Ill. 2d 154, 390 N.E.2d 859.) The recovery of punitive damages is also not allowed in the absence of actual damages. (Florsheim v. Travelers Indemnity Co. (1979), 75 Ill. App. 3d 298, 393 N.E.2d 1223.) Therefore, plaintiff’s request for recovery of attorneys’ fees is barred, not having shown statutory authority or a contractual obligation. Plaintiff’s request for punitive damages is also barred, not having shown actual damages outside of legal fees incurred.

One subsidiary issue need be only briefly addressed. Plaintiff contends that the trial court erred in granting a judgment notwithstanding the verdict rather than granting a motion in arrest of judgment. Specifically, an arrest of judgment is proper when a court rules upon the sufficiency of a plaintiff’s complaint after the entry of a judgment in a plaintiff’s favor, and a judgment notwithstanding the verdict is designed to question the adequacy of the proofs or other issues raised at trial. (People v. Wareberg (1976), 44 Ill. App. 3d 78, 358 N.E.2d 54.) Since the trial court in this case ruled that the complaint was insufficient to state a cause of action, plaintiff argues that it was more properly an arrest of judgment rather than a judgment notwithstanding the verdict. It is our opinion that the standards of review for either an arrest of judgment or a judgment notwithstanding the verdict would not differ; therefore, at this juncture, it is immaterial whether the order of the trial court was a judgment notwithstanding the verdict or an arrest of judgment.

Accordingly, for the reasons set forth above we conclude that the trial court properly granted the judgment notwithstanding the verdict. The judgment order of the circuit court of Will County is affirmed.

Affirmed.

ALLOY and BARRY, JJ., concur.


author: Mr. JUSTICE ALLOY

text:
    KATHLEEN A. POMREHN, Plaintiff-Appellant, v. CRETE-MONEE HIGH SCHOOL DISTRICT, Defendant-Appellee.
    Third District
    No. 81-153
    Opinion filed November 5, 1981.

      Anthony C. Scrementi, of John L. Cifelli & Associates, Ltd., of Chicago Heights, for appellant.
    D. Kendall Griffith and David P. Meyer, both of Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago, for appellee.
   Mr. JUSTICE ALLOY

delivered the opinion of the court:

Plaintiff Kathleen Pomrehn appeals from the entry of summary judgment in favor of defendant Crete-Monee High School District in her tort action against the school district. Count IV of Pomrehn’s last amended complaint alleged that the school district was guilty of willful and wanton misconduct resulting in substantial personal injury to her. On this appeal, the plaintiff asserts that the trial court erred in entering summary judgment on the willful and wanton misconduct claim against the school district.

The facts as disclosed in the record are largely undisputed. In the spring of 1975, Kathleen Pomrehn was a member of Crete-Monee High School’s girls varsity softball team. The high school team practiced, after school, at Crete Elementary School, the practice field there being less than a mile from the high school. Practices were scheduled to begin at 5:50 p.m. daily, during the week. The freshmen and sophomores were transported to the practice field by a school bus. The upperclassmen supplied their own transportation. Julie David, a teacher at the high school, was the coach of the girls softball team. Under her duties as a teacher under the split shift attendance procedure at the school, she was required to remain at the school until 5:45 p.m. However, it was common for teachers to leave at 5:30 p.m., when classes ended for the students.

Prior to the date of the occurrence herein (being May 8, 1975), Julie David had left school at 5:30 p.m. and had arrived at the practice field around 5:35 p.m. She was usually there as the girls arrived from school. However, on May 8, she did not arrive until 5:45 p.m., a split second after plaintiff Pomrehn had been injured. According to the complaint and accompanying affidavits and depositions, the reason for her late arrival on May 8 was that the school principal, the previous day, had informed her to remain at school until the mandated 5:45 p.m. for teachers. According to the record, this action by the principal was taken for harassment purposes, in response to several discrimination suits filed by Coach David against the school district. In any event, on the day prior to the accident involving Pomrehn, the school principal had told Coach David to remain at school until the required 5:45 p.m. When Coach David had inquired of him, “What happens if one of my kids gets hurt?” his response was that it would not happen.

On May 8, plaintiff Pomrehn and another girl had arrived for practice around 5:30 p.m. Shortly thereafter, they left the practice area in the other girl’s car, in order to drive to her home to get a coat hanger. The home was only a block from the practice field, and the coat hanger was needed to open the car of a friend who had locked the keys inside it. The two girls rode, in the car, to the house and got the hanger. In returning to the practice field, however, plaintiff Pomrehn rode on the outside of the auto, atop the trunk. When the driver of the auto attempted a left turn off the roadway onto the grassy area adjacent to the playing field, plaintiff Pomrehn was thrown off the back of the auto and received substantial head injuries. Julie David, the coach, arrived within seconds after the accident and attended to the situation. Pomrehn suffered a severe brain injury in the fall, with permanent effects. She incurred medical expenses of almost $25,000 and has had her earning capacity substantially reduced as a result of the accident.

A complaint was filed by plaintiff in January 1977 based upon the occurrence, and named as defendants were the driver of the auto and her father, the owner of the auto. Also named defendant was Crete-Monee High School District. The pertinent count against the high-school district alleged that the school district was guilty of willful and wanton misconduct in that the school principal had singled out Julie David, the coach, and required her to remain at school until 5:45 p.m. It was alleged that when this action was taken, the principal knew or should have known that his action increased the risk of injury at softball practice, since the girls arrived beginning around 5:30 p.m. The misconduct alleged was not in the failure to supervise or schedule supervision. Rather, it was the intentional action in preventing the designated supervisor from being present at practice when the girls arrived prior to scheduled practice.

Based upon the record before him, the trial judge entered summary judgment in favor of the school district, finding that there were no issues of material fact and that the school district was entitled to judgment as a matter of law. (Ill. Rev. Stat. 1979, ch. 110, par. 57.) On the same date as the summary judgment order, the owner of the auto was stricken as a defendant by stipulation of the parties. The remaining negligence counts against the driver were scheduled for trial, but settlement was reached before such occurred. The present appeal was taken from the entry of summary judgment in favor of the school district on plaintiff’s willful wanton misconduct claim.

The sole issue before us is whether the trial court correctly entered summary judgment in favor of defendant school district. As we stated in Coomer v. Chicago & North Western Transportation Co. (1980), 91 Ill. App. 3d 17, 21, 414 N.E.2d 865:

“The sole function of a reviewing court in reviewing the trial court’s entry of a summary judgment is to determine whether the trial court correctly ruled that no genuine issue of material fact had been raised. [Citation.] If no such issue remained, then we must determine whether judgment was correctly entered for the moving party as a matter of law. [Citation.]”

The tort at issue in the instant case, willful and wanton misconduct, was recently reviewed in Bernesak v. Catholic Bishop (1980), 87 Ill. App. 3d 681, 686, 409 N.E.2d 287:

‘The Rlinois Supreme Court has defined wilful and wanton conduct to be either an intentional injury or an act “committed under circumstances exhibiting a reckless disregard for the safety of others, such as a failure, after knowledge of impending danger, to exercise ordinary care to prevent it or failure to discover the danger through recklessness or carelessness when it could have been discovered by the exercise of ordinary care.” [Citations.] In attempting to elucidate the concept contained in the words wilful and wanton conduct, our Supreme Court in Brown v. Illinois Terminal Co., 319 Ill. 326, 150 N.E. 242, commented as follows:
“Such conduct [wilful and wanton] imports consciousness that an injury may probably result from the act done and a reckless disregard of the consequences. Ill-will is not a necessary element to establish the charge.” [Citation.]’ ”

To sustain a claim of willful and wanton misconduct the plaintiff must show an intentional act by defendant or an act taken, under the circumstances known, in reckless or conscious disregard of probable injurious consequences. It is essential that plaintiff allege and establish that when the defendant acted, or failed to act, he had knowledge, or should have had the knowledge under the circumstances, that his conduct posed a high probability of serious physical harm to others. See Booker v. Chicago Board of Education (1979), 75 Ill. App. 3d 381, 394 N.E.2d 452; Landers v. School Dist. No. 203 (1978), 66 Ill. App. 3d 78, 82, 383 N.E.2d 645; Clay v. Chicago Board of Education (1974), 22 Ill. App. 3d 437, 318 N.E.2d 153.

The question, as framed in the factual context of the instant case, is whether a genuine issue of fact was raised on the issue of whether the school district should have been aware that by preventing Coach David from arriving prior to 5:45 p.m., it was recklessly disregarding probable injurious consequences to the team members. We find that the evidence in the record before the trial court did not indicate any such reckless or conscious disregard of known dangers. There was no evidence of any special dangers presented during the time between the end of classes and the beginning of softball practice. There was no evidence of prior problems or hazards with the softball team members, or the practice area involved herein. Certainly, there is a risk of injury and a danger involved in almost any gathering of teenagers. Yet this general potential for danger with groups of children is not sufficient to support a charge of willful and wanton misconduct. (See Mancha v. Field Museum of Natural History (1972), 5 Ill. App. 3d 699, 283 N.E.2d 899.) No foreseeable, probable danger flowing from a lack of supervision between 5:30 p.m. and 5:45 p.m. was shown to have existed. Plaintiff’s evidence was insufficient to raise a factual issue on whether there was any conscious disregard for the safety of the team members in the school district’s action keeping Coach David at school until 5:45 p.m.

The cases cited by the defendant all involved a much greater and more specific probable danger resulting from defendants’ actions in those cases. In Landers v. School District No. 203 (1978), 66 Ill. App. 3d 78, 383 N.E.2d 645, a teacher ordered an overweight student to perform a backward somersault in gym class, despite a lack of instruction, the girl’s fears expressed to the teacher, and her weight. Willful and wanton misconduct was found in the teacher’s conduct in ignoring the obvious danger to the student. Similarly, in Bernesak v. Catholic Bishop (1980), 87 Ill. App. 3d 681, 409 N.E.2d 287, the known danger was clearly established. There, teachers stood passively by while students played a risky and dangerous game of “crack-the-whip” on the playground. (87 Ill. App. 3d 681, 685.) These cases, and other willful and wanton cases, present situations wherein conduct may be termed willful and wanton because it is taken where a person is conscious, or should be conscious, of the risks and dangerous consequences of the acts or failure to act. In the instant case, no evidence was presented showing that the principal was aware of any probable danger from his action, nor was it shown that, under the circumstances, a reasonable man would have been aware that preventing supervision immediately after school would result in probable harm to the team members. No genuine issue of material fact was presented on the question.

The plaintiff seeks to raise the requisite factual issue on the knowledge question through Coach David’s statement, taken after the accident, that she had heard that plaintiff Pomrehn “was used to being on the trunks of cars.” Yet, there is no connection made at all between this second-hand knowledge on the part of Coach David and the situation after school with the softball team. And it is in the context of the existing and past situation at practice, with the dangers or hazards there, that the defendant’s conduct must be judged. The evidence does not establish a connection. Furthermore, there is no indication in the record as to the basis for Coach David’s knowledge or when she acquired it. The remark by the coach is not further developed by plaintiff’s counsel, nor is a relationship shown between it and softball practice, or the team members.

The evidence in the record, viewed, as it must be, most favorably to the plaintiff, raises no material issue of fact on the question of the school district’s conscious or reckless disregard for probable injurious consequences of its conduct. The undisputed evidence before the trial court is insufficient, as a matter of law, to support plaintiff’s claim of willful and wanton misconduct on the part of the school district. The judgment of the Circuit Court of Will County is affirmed.

Affirmed.

SCOTT, P. J., and BARRY, J., concur.


text:
    RICHARD L. SCHWARZWALDER, Plaintiff-Appellee, v. ALEX J. WAITKOSS, Defendant-Appellant.
    Third District
    No. 81-196
    Opinion filed November 5, 1981.
    Allan E. Lapidus and Edward C. Jepson, both of Vedder, Price, Kaufman & Kammholz, of Chicago, for appellant.
    Bruce Falk, of Codo, Bonds & Zumstein, P. C., of Joliet, for appellee.
   Mr. JUSTICE ALLOY

delivered the opinion of the court:

The defendant, Alex J. Waitkoss, appeals from the judgment entered in favor of the plaintiff, Richard Schwarzwalder, an assignee of the original obligee, Community Bank of Galesburg (C.B.G.), on the plaintiff’s action to collect the arrearage owing on a note of indebtedness executed by the defendant. The issue raised is whether the circuit court’s finding that the defendant was personally liable was contrary to the manifest weight of the evidence where the defendant contended he signed the note in a representative capacity only.

In 1977, the defendant was a one-sixth shareholder in United Energies, Inc. (U.E.), a corporation which owned mineral rights and which was involved in coal mining. Other U.E. shareholders included Ernest Huls and Ernest Streigel. Huls also served as the chairman of C.B.G., of which he was the major shareholder. In January, 1977, Huls approached the plaintiff, who was then president of C.B.G., and inquired about a loan to U.E. to be used to purchase a coal washer/crusher. The plaintiff testified that he was hesitant to extend credit to U.E. because of Huls’ dual position with both the bank and U.E. Apparently nothing resulted from this inquiry, because, at about the same time, Huls and Streigel approached the defendant in search of the necessary funds to purchase the equipment for U.E. After meeting with them, the defendant agreed to execute a note to C.B.G. on behalf of U.E. Although he received no written authorization, the defendant believed that he was to sign the note in his representative capacity only and that the note would be solely a corporate obligation of U.E. In fact, he received the impression from Huls that all U.E. shareholders were to sign the note. Prior to the execution of the note, C.B.G. requested and received the defendant’s personal financial statement.

On January 18,1977, the defendant executed a one-year note for the principal sum of $40,000 at an interest rate of 8/1 percent. At this time, the defendant had no discussions with the plaintiff or any other C.B.G. official, other than Huls, regarding the loan. The defendant signed the note in two places:

“I (we) Hereby Warrant and Certify that the proceeds of this loan will be used solely for business purposes only as follows: For construction of recycling plant (washer/crusher) on behalf of United Energies, Inc. at West Frankfort, Illinois.
- - s/ Alex J. Waitkoss
Date Signature Signature
By executing this instrument, the undersigned agrees to all terms and provisions and acknowledges the receipt of a completely filled in copy prior to execution thereof.
phone (312) 896-1916 Soc. Sec. No. [ XXX-XX-XXXX ]
Address United Energies, Inc. s/ Alex J. Waitkoss c/o Post Office Box 384 Signature
404 South Logan Street
West Frankfort Illinois 62896_NOT NEGOTIABLE”
City State Zip Code Signature

Upon signing the note, which he considered to be an obligation of U.E., the defendant mailed it to either Huls or Streigel. C.B.G. applied the loan proceeds to an account held by U.E. and Carbon Energies, a partnership related to U.E. At no time did the defendant have direct access to the funds contained in that account. In an unrelated transaction, C.B.G. also extended credit to Carbon Energies in 1977 which was guaranteed by U.E. As with the defendant, C.B.G. required a financial statement from Carbon Energies before granting its loan.

As the note signed by the defendant approached maturity, the plaintiff, acting as president of C.B.G., sent to the defendant a renewal note which was intended to replace the original note upon payment of the interest owing. The plaintiff testified that at no time did he seek payment from U.E. because he considered the note to be the defendant’s personal obligation. Upon receiving the second note, the defendant requested that U.E. pay the entire amount owing, but he was informed by Huls that U.E. was without sufficient funds to pay either the principal or interest and that the note must be renewed. Huls told the defendant that if he were to pay the interest owing and sign the renewal note, U.E. would reimburse him. So believing, the defendant paid the interest and on January 14, 1978, executed the renewal note, which contained the identical terms as those of the first note. As with the first note, the defendant affixed his signature beneath the recital of the purpose for the loan and at the end of the note immediately to the right of U.E.’s name and address. This time, the defendant also signed his name in a box located at the top of the note on the line indicating “Signature of Borrower.” Following the renewal of the obligation, the defendant requested, but did not receive, reimbursement from U.E. for interest paid. As with the previous note, the defendant discussed the terms with neither the plaintiff nor any other bank official except Huls.

Then in December 1978, the plaintiff, Huls, and a third C.B.G. shareholder, James Franks, received an offer to sell their ownership interests. As one condition of the stock transfer, the purchasers required that the sellers remove certain loans from C.B.G.’s assets, including the note executed by the defendant, which was referred to as the “United Energies” loan.

The plaintiff accepted the offer to sell on January 8,1979, and on that day the C.B.G. board passed a resolution requiring Huls to effect collection of so-called “insider” loans. The resolution denominated the renewal note as being of this type and referred to it as “United Energies, Inc. #10281.” A letter sent by the plaintiff which accompanied the resolution, as well as a second letter, also referred to the note in issue as the “United Energies, Inc.” or “United Energies” loan. As part of the stock transfer agreement, the sellers entered into an agreement in which Huls would indemnify the plaintiff and Franks for any loss incurred due to the noncollection of any “insider” loans. On November 30, 1979, C.B.G. assigned the renewal note, which was still unpaid, to the plaintiff, who brought the instant action against the defendant.

Following the presentation of the evidence, the circuit court found that because of the proximity of the name United Energies, Inc., to the defendant’s signature, there existed “some indication” that U.E. was the defendant’s principal. Nevertheless, after examining the extrinsic evidence, the court concluded that the immediate parties to the loan did not intend the obligation to be a corporate one and thus, held that the defendant was personally obligated on the debt.

On appeal the defendant contends that the court correctly declared the renewal note to be ambiguous on whether U.E. was the defendant’s principal, but argues that the manifest weight of the evidence supports a contrary finding that the immediate parties to the note had an agreement that the debt was to be a corporate obligation solely.

The rules governing the effect of an agent’s signature on an instrument are located in section 3 — 403 of the Illinois Uniform Commercial Code, which provides:

“(1) A signature may be made by an agent or other representative, and his authority to make it may be established as in other cases of representation. No particular form of appointment is necessary to establish such authority.
(2) An authorized representative who signs his own name to an instrument
(a) is personally obligated if the instrument neither names the person represented nor shows that the representative signed in a representative capacity;
(b) except as otherwise established between the immediate parties, is personally obligated if the instrument names the person represented but does not show that the representative signed in a representative capacity, or if the instrument does not name the person represented but does show that the representative signed in a representative capacity.
(3) 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. 1979, ch. 26, par. 3 — 403.

Section 3 — 403 incorporates the common law rule which provided that unless there is something on the face of an instrument or in the manner of its signature so as to create ambiguity or uncertainty, parol evidence is inadmissible to alter the presumption that a person signing the instrument is personally liable thereon. For this reason, section 3 — 403(2) (a) makes no provision for the admission of parol evidence where the instrument neither names the person represented nor shows that the signator signed in a representative capacity. However, where the note either names the representative but fails to disclose his representative capacity or where the signator signs a representative capacity but fails to disclose the identity of the principal, section 3 — 403(2) (b) admits parol evidence to overcome the presumption that the signator signed the note in his individual capacity only, but only where the action is between the immediate or original parties to the note. Where parol evidence is admitted, the person attempting to prove that the signature was made in a representative capacity assumes the burden of persuasion. Rotuba Extruders, Inc. v. Ceppos (1978), 46 N.Y.2d 223, 385 N.E.2d 1068.

As for the first prerequisite in the case at bar, neither party disputes the status of the plaintiff as an immediate party to the note by virtue of his position as president of C.B.G. at the time the defendant executed both notes. The second prerequisite is less certain. Upon signing the note, the defendant clearly did not reveal any representative capacity, such as by signing “Alex J. Waitkoss, agent.” (See Ill. Ann. Stat., ch. 26, par. 3 — 403, Uniform Commercial Code Comments, at 224-25 (Smith-Hurd 1963); Wolfram v. Halloway (1977), 46 Ill. App. 3d 1045, 361 N.E.2d 587; Uptown Federal Savings & Loan Association v. Collins (1969), 105 Ill. App. 2d 459, 245 N.E.2d 521.) Thus, the issue is whether the two note references to U.E. sufficiently named the person or organization represented by the signator to enable the court to admit extrinsic evidence to rebut the presumption of individual liability. Neither section 3 — 403 nor the case law specifically states what is required for the instrument to name the person represented by the signator. (See 97 A.L.R.3d 798, 815 (1980); 2 R. Anderson, Uniform Commercial Code §3 — 403:6-8 (1971).) Although the facts in the instant case are not as clear as in J. P. Sivertson & Co. v. Lolmaugh (1978), 63 Ill. App. 3d 724, 380 N.E.2d 520, where the signator signed the initials “L.T.G.De.” immediately above his signature (see also Ill. Ann. Stat. ch. 26, par. 3 — 403, Uniform Commercial Code Comments, n.3(e), at 224 (Smith-Hurd 1963)), we believe the circuit court did not err in finding that the two references to U.E. in the notes presented some indication that the defendant might have signed them in a representative capacity for U.E. (See, e.g., Rotuba Extruders, Inc. v. Ceppos (1978), 46 N.Y.2d 223, 385 N.E.2d 1068; Wood Press, Inc. v. Eisen (1978), 157 N.J. Super. 57, 384 A.2d 538; Citibank Eastern, N.A. v. Minbiole (1975), 50 App. Div. 2d 1052, 377 N.Y.S.2d 727; Geer v. Farquhar (1974), 270 Or. 642, 528 P.2d 1335.) Nonetheless, we concur in the circuit court’s finding that an examination of the extrinsic evidence failed to sustain the defendant’s burden to “ ‘establish’ an agreement, understanding or course of dealing” between the immediate parties so as to overcome the presumption of personal liability. Rotuba Extruders, Inc. v. Ceppos (1978), 46 N.Y.2d 223, 229, 385 N.E.2d 1068, 1071.

It is not sufficient merely for an appellant to select certain evidence to support his contention that the trial court’s judgment was erroneous. For a reviewing court to reverse a trial court’s finding of facts, the appellant must demonstrate that the ruling was contrary to the manifest weight of the evidence. (Thomas v. Le Burkian (1973), 10 Ill. App. 3d 742, 295 N.E.2d 313.) This the-defendant is clearly unable to do. First, both parties admit that, as between the president of C.B.G., who issued the notes, and the defendant, no direct agreement existed which indicated an intention that the defendant’s signature was to be made in a representative capacity. They held not a single discussion on this question. The defendant contends, however, that Huls, who was then chairman of C.B.G., told the defendant that the loan would be used on “behalf” of U.E. Based on this and similar conversations, the defendant assumed that his signature would only obligate the corporation. However the defendant may have interpreted this and other statements made by Huls, we find his conclusion to be unsupported by the evidence and to amount to nothing more than a “self-serving allegation of the signer’s subjective intent to sign as a representative,” which is insufficient to alter the presumption of personal liability. (Rotuba Extruders, Inc. v. Ceppos (1978), 46 N.Y.2d 223, 229, 385 N.E.2d 1068, 1071.) Although the defendant testified that Huls continued to claim that the loan was for the benefit of U.E., the defendant failed to corroborate a single conversation. The court did not exceed the bounds of its discretion in giving little weight to this evidence. Moreover, to say that the proceeds of the loan were to go to the corporation, of which the defendant was a one-sixth shareholder, does not lead to the inevitable conclusion that the defendant signed the notes in a representative capacity. The assumption of personal liability for loans made to closely held corporations by one who has a direct stake in its operation is not an uncommon business practice and may even be the established business custom. (See State Bank v. Sentel (1973), 10 Ill. App. 3d 86, 293 N.E.2d 444.) For this reason, the fact that the loan proceeds were placed in U.E.’s joint bank account was not significantly probative of the issue of the defendant’s representative capacity. Likewise, the plaintiff’s letters and the C.B.G. board resolution which referred to the renewal note as a U.E. loan fail to persuade us that an agreement or understanding between the bank and the defendant existed which established that defendant signed only in a representative capacity. In one respect the note did evince a U.E. loan because the proceeds were placed in U.E.’s account. Yet, as we have said, that does not necessarily conflict with the defendant’s individual liability. Clearly, however, U.E. was obligated to reimburse defendant.

Accordingly, we rule that the circuit court’s finding of the defendant’s personal liability on the renewal note was not contrary to the manifest weight óf the evidence. For the foregoing reasons, we affirm the judgment of the Circuit Court of Will County.

Affirmed.

STOUDER and BARRY, JJ., concur.


author: Mr. JUSTICE UNVERZAGT Mr. JUSTICE LINDBERG,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BARBARA HART, Defendant-Appellant.
    Second District
    No. 80-542
    Opinion filed October 30, 1981.
    LINDBERG, J., specially concurring.
    J. Steven Beckett and Glenn A. Stanko, both of Reno, O’Byrne & Kepley, of Champaign, and Daniel J. Cain, of Sreenan and Cain, of Rockford, for appellant.
    Daniel D. Doyle, State’s Attorney, of Rockford (Phyllis J. Perko, of State’s Attorneys Appellate Service Commission, of Elgin, and Martin N. Ashley and Gillum Ferguson, both of State’s Attorneys Appellate Service Commission, of Mt. Vernon, of counsel), for the People.
   Mr. JUSTICE UNVERZAGT

delivered the.opinion of the court:

The defendant was charged with making available to the public three allegedly obscene films which were located in an adult book store at 322 East State Street, Rockford, Illinois. (Ill. Rev. Stat. 1979, ch. 38, par. 11 — 20(a)(3).) Following a jury trial, she was found guilty of obscenity and sentenced to 30 days in the county jail and fined $1,000. She raises six issues in this appeal. We find reversible error occurred in two instances: when the jury was instructed that the State did not have to “produce expert testimony on the question of whether or not the movies are obscene,” and when the State failed to provide the jury with sufficient evidence of the defendant’s scienter.

In view of our holding, we do not consider the other four issues raised by the defendant. However, and notwithstanding our holding, we wish to remark upon an error which we believe would have compelled us at the very least to remand this cause for resentencing of the defendant. In People v. Conover (1981), 84 Ill. 2d 400, the Illinois Supreme Court determined when section 5 — 5—3.2(a)(2) may be considered to be a factor in aggravation during sentencing. (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 5—3.2(a)(2).) Section 5 — 5—3.2(a) provides:

“The following factors shall be accorded weight in favor of imposing a term of imprisonment or may be considered by the court as reasons to impose a more severe sentence under Section 5-8-1:
# O #
(2) the defendant received compensation for committing the offense.”

The Conover court held:

“o e * that section 5 — 5—3.2(a)(2) of the Unified Code of Corrections may be considered as a factor in aggravation only when one is remunerated, 0 * ° to commit an offense, whether the offense is burglary or theft, where proceeds may be taken, or the crime is one that does not involve proceeds, e.g., aggravated battery.” 84 Ill. 2d 400, 405.

At sentencing, the court in the instant case stated its reasons for imposing a sentence of imprisonment:

“° 0 * I’m going to enter a Judgment of Conviction and having due regard for the character of the defendant and nature and circumstances of the offense and the public interest, find that a sentence of jail is an appropriate disposition. And I do this because first, the defendant was, in fact, receiving compensation for doing what she was doing and secondly, because I believe that the sentence in [sic] necessary to deter others from committing the same crime.” (Emphasis added.)

We believe the court’s consideration of the fact the defendant was paid to work at the bookstore was improper under Conover and would mandate a vacation of the sentence and remandment for resentencing were it not for our finding that the defendant’s conviction must be reversed.

A summary of the facts is necessary. At 6:30 p.m. on August 30,1979, Officer Richard Galvanoni of the Rockford Police Department entered an adult bookstore located at 322 East State Street, Rockford, Illinois. He asked the clerk on duty, defendant Barbara Hart, for $5 worth of quarters and gave her a $20 bill. He asked her “if the movies in the back were any good.” She said she did not know. He asked if there was a “browsing” fee, and she said not at that time. Officer Galvanoni proceeded to the projection area, or arcade, which is a room located about 30 feet away from the front counter where the defendant was stationed. The arcade contained approximately 18 three-foot by four-foot booths; each booth had a door on which were mounted framed posters graphically indicating a choice of movie “A” or “B” with a scene taken from the movie and showing the title thereof. A coin-operated projector with a different slot for movie “A” or “B” was located inside the booth. Upon placement of a quarter in the slot, the movie chosen automatically projected onto a screen located on the interior side of the booth door. The movie runs for a short time; a total of six quarters must be fed into the slot in order to see the entire 10-minute movie. Officer Galvanoni viewed three movies in this manner. At trial, the jury viewed all three of the movies, which were described in detail in Galvanoni’s affidavit for search warrant. Generally described, they depicted fellatio, masturbation, analingus, and anal intercourse by and between two white males; fellatio, cunnilingus and intercourse between a black male and a white female; and simultaneous combinations of acts of cunnilingus, fellatio and/or intercourse by and between two white females and one white male. None had a sound track; they were silent movies. The store window and entrance door had been painted to prevent viewing from the outside by all except the tallest persons, and admittance was restricted to persons over 18 years of age. The interior of the store and the walls were filled with racks holding paperbacks and hundreds of “different various types of magazines” and “marital aids” such as “rubber dildos and items of that nature.”

After watching the three movies and browsing in the store for awhile, Galvanoni asked the defendant “if any of the movies that were playing in the back were for sale at the front of the store.” She responded “she didn’t know but possibly the Swedish Erotica films may be the same in the back as they sold in [sic] the counter.” Officer Galvanoni then left the store, and the three films at issue were seized pursuant to a search warrant the following evening, August 31,1979. The defendant was not present at the store when the films were seized; a warrant for her arrest was issued on August 31, and she posted bond on September 1,1979.

The defendant charges it was error for the court to give this non-IPI instruction which was tendered by the State and objected to by the defendant:

“The State is not required to produce expert testimony on the question of whether or not the movies are obscene.”

People v. Ridens (1972), 51 Ill. 2d 410, and People v. Hobbs (1978), 59 Ill. App. 3d 793, were cited as authority for the instruction.

At trial, the State’s evidence consisted of Officer Galvanoni’s testimony, testimony of the officers who executed the search warrant and who transferred the three films in question from cassettes to reels, and the films themselves. The defendant’s motion for a directed verdict was denied and she presented two witnesses, Doctor Thomas Hollon and Michael Mullen. Dr. Hollon, a clinical psychologist with extensive experience in diagnostic evaluation and counseling of persons with sexual disorders, cited the 1970 report of the President’s Commission on Obscenity and Pornography as the most authoritative study on the relationship between sexually explicit material and human sexuality. He testified the commission’s report showed there was no causal relationship between exposure to sexually explicit materials and antisocial behavior. Further, the report showed repeated exposure to such materials resulted in “satiation”; that is, a lack of response to the explicit stimuli; a failure to become aroused. He defined “prurient interest” as a sick or morbid interest in nudity, sexuality or excretia, and stated that there can be a physiological response (sexual arousal) to sexually explicit material which flows from a completely normal interest in sex. He stated his view that normal sexual behavior encompasses a wide range of sexual behavior and acts between consenting adults, and that the conduct portrayed in the three films fell within this range of normal sexual behavior. His opinion was that the films do not appeal to prurient interest, and that although they would not have any scientific or instructional value, they would have recreational or informational value, albeit to a limited number of persons.

Michael Mullen, an assistant in a Rockford legal firm, testified regarding his purchase of a number of so-called “men’s magazines” at various locations in Rockford. “Hustler” was purchased at a Stop-N-Go store; “Cheri” was purchased at Ekstrom’s in Rockford. There were no restrictions on the accessibility of these magazines at either store. A copy of “Velvet” was purchased at Seventh Street Recreation in Rockford; “High Society” was purchased at Canterbury Books; “Club International” was purchased at a different Stop-N-Go in Rockford. Again, there were no restrictions on the accessibility of these magazines; Stop-N-Go had a five-minute time limit on browsing, however. The magazines range in price from $2.75 to $3.25 per copy. Generally described, the magazines feature photos of nude men and women posed singly, as couples, or in groups in a variety of poses which suggest imminent or actual hetero- or homosexual activities including masturbation, fellatio, cunnilingus and intercourse. The defendant tendered these magazines as tending to show the degree of acceptance in the State of such materials, and they were admitted over the State’s objection.

The defendant asserts the instruction in question should not have been given because it incorrectly interprets prior case law, creates an impression to the jury of a lower prosecutorial burden of proof, unfairly lessens the credibility of the evidence given by the defendant’s witnesses, and increases the likelihood the jurors will substitute their own personal judgments or biases in place of the proper Statewide standard. The State urges us to adhere to our prior holding in People v. Hobbs (1978), 59 Ill. App. 3d 793, wherein we approved the identical instruction in dicta after finding the issue had been waived by the defendant. The State notes that our holding in Hobbs that the jury may determine the obscenity of materials in question from its own inspection of them, without the assistance of expert testimony, is an accurate statement of the law as derived from People v. Ridens, cited above, and City of Chicago v. Kimmel (1964), 31 Ill. 2d 202.

We decline to accede to the State’s urging. First, in Hobbs, we determined the defendant had waived consideration of the instruction issue and went on to approve the use of the instruction in dicta. Although dicta is often persuasive, it is not binding authority within the rule of stare decisis. (Williams v. Crickman (1980), 81 Ill. 2d 105.) Second, under the facts of this case we believe the instruction is an unfair and highly prejudicial application of the authority of Ridens.

In Ridens, the defendants offered one nonexpert witness in an attempt to establish that the allegedly obscene magazines were in accord with the community standards of the city of Moline. The city presented the testimony of the police officers who purchased the magazines and the magazines themselves were admitted into evidence. “The city however, offered no expert or opinion evidence relating to community standards of obscenity.” (Emphasis added.) (People v. Ridens (1972), 51 Ill. 2d 410, 413.) The court there then rejected the defendants’ argument that the trial court should have directed a verdict in their favor either at the close of the State’s evidence or all the evidence because the prosecutors failed to meet their burden of proof by establishing the constitutional standards for obscenity as required in Roth, as incorporated in the Moline ordinance. (Roth v. United States (1957), 354 U.S. 476, 1 L. Ed. 2d 1498, 77 S. Ct. 1304.) It held that the prosecutors met their burden of proof when they introduced into evidence the magazines:

“While the courts of some other States have held a contrary view on this question, we have determined that no further proof of the Roth criteria, other than the offending publications themselves, is required. In City of Chicago v. Geraci, 46 Ill. 2d 576, where no evidence was offered other than the publications themselves, at page 578, we stated: ‘In a case of this nature, the court must make an independent constitutional judgment as to whether the publications in issue are obscene or constitutionally protected. [Citations.]’ And, in City of Chicago v. Kimmel, 31 Ill. 2d 202, at page 206, we stated: ‘Defendant further contends that the proof of his guilt was deficient in that there was no evidence of contemporary community standards, that there was no evidence of the obscene content of the books, and the books were not read by the trial court, or by the jury in open court. Defendant offered no evidence relating to contemporary community standards, and in the absence of such evidence, the triers of fact “are the exclusive judges of what the common conscience of the community is.” (Roth v. United States, 354 U.S. 476, 490, 1 L. Ed. 2d 1498, 1510.)’ This rationale would be accentuated in the case at bar since the publications are of a pictorial format only, or of such format with innocuous attendant prose. Thus, we hold that the plaintiffs met their burden of proof when they introduced in evidence the magazines, which consist almost exclusively of photographs.” People v. Ridens (1972), 51 Ill. 2d 410, 415-16.

Ridens cited Geraci for the proposition that the court must make “an independent constitutional judgment” as to whether the publications in issue are obscene or constitutionally protected. Geraci cited back to Kimmel at pages 207 and 208 for that proposition. (City of Chicago v. Geraci (1970), 46 Ill. 2d 576, 578.) It is clear, however, that Kimmel at those page references was referring to the duty of the reviewing court, not the trial court. Further, the Kimmel concept of the jury as the “exclusive judges of what the common conscience of the community is” predated the premiere definitive pronouncement of the “community” as being the Statewide community, and not the microcosmic community indigenous to the members of the jury or the trial court. See People v. Butler (1971), 49 Ill. 2d 435.

Ridens has been strictly construed by the appellate courts. (Cf. People v. Price (1972), 8 Ill. App. 3d 158, 160-61 (prima facie case was presented where State presented four witnesses and introduced the purportedly offending motion picture film into evidence, even though none of the witnesses testified that film satisfied the three elements necessary for obscenity convictions); City of Chicago v. Geraci (1973), 10 Ill. App. 3d 688, 691 (four magazines found to be of the type to be described in Ridens and were, therefore, obscene at law); People v. Ward (1975), 25 Ill. App. 3d 1045, 1046 (State’s evidence consisting of magazines made up almost exclusively of photographs constituted sufficient proof to establish and support conviction for violation of obscenity statute per Ridens, and State’s failure to present opinion testimony as to contemporary community standards was not fatal to the State’s case); People v. Watson (1975), 26 Ill. App. 3d 1081, 1084-85 (defendant’s conviction reversed and remanded where trial court failed to instruct the jury that contemporary Statewide community standards be applied in determining obscenity, despite fact the State presented no evidence as to any type of contemporary Statewide community standard); People v. Mabie (1975), 30 Ill. App. 3d 399, 401 (trial court did not err in refusing to direct verdict for defendant on the basis the State did not meet its burden of proof because no evidence of contemporary community standards was introduced); Motion Picture Appeal Board v. S. K. Films (1978), 65 Ill. App. 3d 217, 226-27 (decision of the trial court not against the manifest weight of the evidence where the motion picture board’s burden of proof as established by Ridens was met when the court viewed the film in question).) In each of these cases, the defendant chose not to present any evidence, and the State’s evidence consisted almost solely of the offending media and the investigating officers’ testimony.

Contrarily, as detailed above, the defendant in the case at bar did offer evidence tending to establish the nonobscenity of the films in question. The jury was instructed that in order to prove the charge of obscenity the State had to prove, inter alia:

“(1) That the motion picture films * * * are obscene” (People’s instruction No. 8 A)
and
“A thing is obscene: (1) if considered as a whole, its predominant appeal is to prurient interest, that is, a shameful or morbid interest in nudity, sex or excretion; and (2) if it is patently offensive to community standards for the State of Illinois in its description and representation of sexual matters; and (3) if the thing is utterly without any redeeming social value. All three elements must exist in each motion picture before you can find that each is obscene. • * (Emphasis added.) People’s instruction No. 9 A.

In the instant case, the jury was comprised of five men and seven women whose residency in Winnebago County ranged from four years to 43 years in length, the average being 22 years. Most stated during voir dire that they either did not or only occasionally read any nonlocal newspapers. Six of the jurors had never been exposed to any sexually explicit materials; two of the jurors were not asked about their exposure to such material. This jury was instructed that:

“[I]n order to find material obscene [they] must conclude, that the average person, applying contemporary community standards, would find the material, taken as a whole, is obscene. Under Illinois law, a statewide standard must be used in making this determination." (Emphasis added.)

This jury was then instructed on the authority of Ridens and Hobbs — after just having heard the defendant’s expert and lay witnesses testify — that: “The State is not required to produce expert testimony on the question of whether or not the movies are obscene.”

As we observed in People v. Nelson (1980), 88 Ill. App. 3d 196, 198: “Clearly, a statewide ‘community standard’ based upon public acceptance of material claimed to be obscene is an essential element of proof of the charge.” (Emphasis added.) In that case, we reversed the trial court’s ruling denying the defendant admission into evidence of the results of a survey conducted amongst 770 adults randomly selected from 77 areas into which the State had been equally divided according to population. The survey sought to determine the degree of public acceptance in the State of Illinois of sexually explicit materials. Aside from the fact that evidence of this type — absent any well-founded objections thereto — is specifically made admissible by section 11 — 20(c)(4) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 11 — 20(c)(4)), we felt there that the survey results indicating that a majority, albeit a slim one, of the Illinois residents considered it acceptable for adults to view sexually explicit materials weighed heavily against the finding that the movies in that case were “patently offensive.” We observed in that case that survey evidence, in fact, may be the only way to prove degrees of acceptability of such material as distinct from its availability. Cf. Smith v. California (1959), 361 U.S. 147, 165, 4 L. Ed. 2d 205, 218, 80 S. Ct. 215, 225 (Frankfurter, J., concurring) (community standards of the psychological or the physiological consequences of questioned literature can as a matter of fact hardly be established except through experts).

Within the context of the circumstances of this case as described above, it is our belief the questioned instruction was unnecessary surplus-age, served no purpose but to lessen the credibility of the testimony given by the defendant’s witnesses, and greatly increased the likelihood that the jurors may have impermissibly applied a personal, rather than a Statewide, community standard. Specific tasks require specific tools. The jury, charged with the duty to judge the materials by applying a contemporary Statewide standard — yet, as noted by the defendant, lacking any evidence from the State as to what that standard might be per the authority of Ridens — must necessarily fall back on those standards which have been born of their own observations and own experiences in life. This is not the Statewide standard mandated by People v. Butler (1971), 49 Ill. 2d 435. Under these circumstances, we believe the right of the presumed-innocent defendant to introduce her own evidence tending to establish that the materials were not obscene should not have been offset by the instruction as to the State’s corresponding nonduty in this respect.

Because the Statewide community standard is so integrally related to a finding of the “patently offensive” nature of materials alleged to be obscene (cf. People v. Nelson), we conclude the error in giving the instruction at issue could have materially affected the outcome of the case and, as such, constituted reversible error.

The second basis which we believe mandates reversal of the defendant’s contention is that the State failed to provide sufficient evidence that she “made available for viewing by the general public” or “then knew the nature or content or recklessly refused to exercise reasonable inspection of the nature or content” of the three films. The State urges us to reject her contention in this regard, citing People v. Doto (1977), 53 Ill. App. 3d 62, People v. Glass (1976), 41 Ill. App. 3d 43, People v. Rode (1978), 57 Ill. App. 3d 645, and People v. Spellman (1978), 58 Ill. App. 3d 648.

We find the cases cited by the State distinguishable. In Doto, Glass and Rode, the defendants were clerks who actually sold the magazines in question to the investigating officers. It was evident those clerks were aware of what particular magazine was being purchased. In Spellman, the defendant was the manager of the adult bookstore, actually sold the magazine to the investigating officer, was involved in selecting the books sold at the store, and admitted that he had looked through the magazine in question before he sold it. The State contends the posters on the booth doors in the case at bar were tantamount to the magazine covers in the above-cited cases, and the defendant’s scienter in the case at bar is thereby established. The State also contends that her reference to the fact that the “Swedish Erotica films may be the same in the back as they sold in [sic] the counter” shows a knowledge of at least some of the films and raises an inference of knowledge as to the rest.

We cannot accept the State’s contentions. We believe that to do so would be to establish that all materials contained in an adult bookstore are per se obscene and all persons working therein are per se guilty of obscenity. Although the State’s evidence established the defendant gave Galvoni $5 worth of change in quarters, it did not establish that she knew which movies he was going to choose out of 36 possible choices, nor that the other 33 movies in the arcade were obscene, nor that she knew how much the movies cost — if indeed evidence of expense is probative of obscenity in any way at all. Likewise, defendant’s reference to the “Swedish Erotica films” was ambiguous. Even conceding the inference that this reference meant the defendant had ever been in the arcade, there was no evidence that one or some of the films showing in the arcade were the “Swedish Erotica films,” or that they were obscene if they were showing.

Every publication or film found in an establishment limited to adult patronage, upon payment of an admission fee at certain times, and charging high prices may not be presumed to be obscene. (Cf. City of Chicago v. Geraci (1970), 46 Ill. 2d 576 (where the supreme court found 16 out of 17 magazines in question to be constitutionally protected despite depictions of explicit frontal nudity of males and females wherein their genitals were the focal points of the pictures).) We believe that to find the defendant guilty of obscenity in this case would result in an abandonment of the requirement of scienter, without which element of proof there would virtually be strict or absolute criminal liability for obscenity, a circumstance which has been held to be unconstitutionally inhibitive of the first amendment freedom of expression. (Smith v. California (1959), 361 U.S. 147, 4 L. Ed. 2d 205, 80 S. Ct. 215.) In Smith, it was stated:

“For if the bookseller is criminally liable without knowledge of the contents, and the ordinance fulfills its purpose, he will tend to restrict the books he sells to those he has inspected; and thus the State will have imposed a restriction upon the distribution of constitutionally protected as well as obscene literature. It has been well observed of a statute construed as dispensing with any requirement of scienter that: ‘Every bookseller would be placed under an obligation to make himself aware of the contents of every book in his shop. It would be altogether unreasonable to demand so near an approach to omniscience.’ [Citation.]” (Emphasis added.) 361 U.S. 147, 153, 4 L. Ed. 2d 205, 211, 80 S. Ct. 215, 218.

Accordingly, the judgment of the circuit court of Winnebago County is reversed.

Judgment reversed.

SEIDENFELD, P. J., concurs.

Mr. JUSTICE LINDBERG,

specially concurring.

I concur in the opinion of the court that the cause must be reversed for failure to prove the requisite scienter. My disagreement with the majority is its holding that the trial court erred when it instructed the jury that the State does not have to introduce expert testimony on whether or not the movies are obscene.

The holding of the majority adopts the defendant’s argument that the instruction in question should not have been given because it incorrectly interprets prior case law, creates an impression to the jury of the lower prosecutorial burden of proof, unfairly lessens the credibility of the evidence given by the defendant’s witnesses, and increases the likelihood that jurors will substitute their own personal judgments or biases in place of the proper Statewide standard.

I cannot agree with any of the reasons put forth by the majority for its holding. The instruction embodies a correct statement of the law as derived from the holding of our supreme court in People v. Ridens (1972), 51 Ill. 2d 410, that the offending publications themselves are sufficient evidence of their obscenity. The majority in our case attempts to distinguish Ridens and the cases following its rationale upon the fact that in those cases the defendants offered no expert testimony. This distinction is not accurate since the rationale in Ridens has been followed in cases where expert testimony was presented by the defense. In People v. Tannahill (1976), 38 Ill. App. 3d 767, the court stated:

“In Paris Adult Theatre I v. Slaton, 413 U.S. 49, 37 L. Ed. 2d 446, 93 S. Ct. 2628, decided on the same day as Miller, no expert evidence as to whether the materials were obscene was introduced. The court ruled, however, that the films themselves were obviously the best evidence of what they represent. Here, too, regardless of the presence of testimonial evidence, the magazines are evidence of their own obscenity and the factfinders, properly instructed as to the definition of ‘obscene’, concluded that the magazines were, in fact, obscene. The magazines graphically depict sexual intercourse, masturbation, fellatio, cunnilingus, group sex and other varieties of sexual activity with emphasis typically focused on the genitals. Despite expert testimony to the contrary, we cannot say that the State failed to prove beyond a reasonable doubt that the magazines are obscene.” 38 Ill. App. 3d 767, 771.

The majority states that City of Chicago v. Kimmel (1964), 31 Ill. 2d 202, is not controlling because it predated the pronouncement of “community” as being the Statewide community. However, People v. Better (1975), 33 Ill. App. 3d 58, was decided after the adoption of the Statewide standard in People v. Butler (1971), 49 Ill. 2d 435. The Better court stated:

“Concomitantly, defendants’ argument that the trial court should have allowed expert testimony on the subject of contemporary community standards is without merit. The fact-finder, be it a jury or a trial judge, is best qualified to determine contemporary community standards. Expert testimony concerning contemporary community obscenity standards, while desirable, is not constitutionally mandated, and the absence of such testimony in the instant case did not prevent the trial court from determining, as fact-finder, the applicable community standards.” 33 Ill. App. 3d 58, 66.

Therefore, I do not agree that the holding in Ridens is inapplicable to the case at bar.

The defendant argued and the majority seems to accept the contention that this instruction gives the jury the impression of a lower prosecutorial burden of proof. I disagree with this conclusion for two reasons. First, the object of jury instructions is to convey to the jury the correct principles of law applicable to the evidence submitted, so that the jury may, by the application of proper legal principles, reach the correct conclusion. (People v. Richards (1978), 64 Ill. App. 3d 472.) Certainly this jury instruction is a correct statement of the law as expressed by our supreme court in Ridens. Second, if this instruction were not given the jurors might have erroneously concluded that the State did not introduce testimony or evidence because it was against the State’s position.

I do not agree that the credibility of the defense experts was diminished by the instruction. These experts stood unimpeached; neither their credentials nor their testimony was attacked.

I also think that the majority’s concern is misplaced that the jurors when given such an instruction will substitute their own personal judgments in place of a Statewide standard. I am confident that a jury instructed properly on the standards for determining obscenity will reach the proper conclusion. The courts have addressed this problem in other cases and have clearly indicated that the best safeguard against unbridled jury discretion is proper jury instructions on the definition of obscenity. People v. Will (1975), 30 Ill. App. 3d 35; People v. Watson (1975), 26 Ill. App. 3d 1081.

The Supreme Court in Smith v. United States (1959), 431 U.S. 291, 305, 52 L. Ed. 2d 324, 338, 97 S. Ct. 1756, 1766, stated:

“[Ojur decision that contemporary community standards must be applied by juries in accordance with their own understanding of the tolerance of the average person in their community does not mean, as has been suggested, that obscenity convictions will be virtually unreviewable. We have stressed before that juries must be instructed properly, so that they consider the entire community and not simply their own subjective reactions, or the reactions of a sensitive or of a callous minority.” (Emphasis added.)

Our supreme court in People v. Jenkins (1977), 69 Ill. 2d 61, said:

“In our judge-and-jury system it is the duty of the court to inform the jury as to the law. We must assume that jurors do not fall short of their constitutional functions and follow the instructions of the trial judge. This assumption is part and parcel of our system. As Mr. Justice Holmes long ago observed: ‘But it must be assumed that the constitutional tribunal does its duty ° e e.’ Aikens v. Wisconsin (1904), 195 U.S. 194, 206, 49 L. Ed. 154, 160, 25 S. Ct. 3, 6.” 69 Ill. 2d 61, 66.

While I question the wisdom of not requiring more of the State in an obscenity prosecution, I do not question that Ridens expresses the law to be followed, and I cannot set it aside under the thoughtful but erroneous rationale of the majority.