author: MR. JUSTICE McCORMICK

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Vernon J. Knox, Defendant-Appellant.
    Gen. No. 50,630.
    First District, Fourth Division.
    December 15, 1967.

      Adamowski, Newey & Riley, of Chicago (Francis X. Riley, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Chief of Criminal Appeals, and Ronald Butler, Assistant State’s Attorney, of counsel) , for appellee.
   MR. JUSTICE McCORMICK

delivered the opinion of the court.

The defendant, Vernon J. Knox, was tried before a judge and jury in the Criminal Court of Cook County. The jury returned a verdict finding him guilty of larceny, upon which verdict the court entered judgment and sentenced Knox to the penitentiary for a term of two to five years. From that judgment this appeal is taken.

On June 6, 1962, Knox had been indicted by the Grand Jury of Cook County, together with Robert W. Pfeiffer. The indictment had 11 counts, in all of which Pfeiffer was indicted as principal and Knox either as principal or as aiding and abetting Pfeiffer in charges of embezzlement, larceny by bailee, larceny, and obtaining money by use of the confidence game.

In this court the defendant alleges that he was tried and convicted of a crime for which he was not indicted; that his conviction resulted from the State’s use of other alleged crimes in the proof that he had committed this one; that the State introduced too much evidence, much of which was irrelevant; that the closing argument of the prosecutor was improper; and that the court failed to hold a hearing after a challenge to the involuntary character of the two statements of defendant.

The evidence is that Knox was a lawyer, also a licensed real estate broker, and secretary of his family-owned corporation, Random Realty Company. Hillside Savings and Loan Association, a state-chartered association, was located in Hillside Shopping Center, Hillside, Illinois. It was organized in April 1957, and on April 30, 1963, merged with a Federal savings and loan association. Pfeiffer was its president and managing officer from the time of its organization in 1957 to May 1959, and from May 1959 until November 1960, he was chairman of the board. He was also a member of the board’s loan committee.

During 1959 and 1960 the defendant, Knox, had over 100 mortgage transactions with Hillside Savings and Loan. On June 9, 1959, among the applications for loans pending with Hillside was one of a vacant lot in Crystal Lake, which was submitted by Knox. As a part of the transaction he executed a note secured by a mortgage in the sum of $20,500, and as a part of the transaction for the approved loan Hillside issued a check for $19,250; the difference is reflected in charges for making the loan. The $19,250 was deposited in Knox’s account on June 12, 1959. This loan will be referred to as Loan No. 1 (File No. 60290). At about the same time Knox gave Pfeiffer his own check for $20,000.

It is claimed that the property in question then had a market value of $3,000. Another loan, which will be referred to as Loan No. 2 (File No. 60369), was made by Knox on February 20, 1960, about eight months after the transaction for which he was indicted and tried.

Two statements were made by Knox before the trial; one to the Attorney General concerning Loan No. 1, wherein Knox said he went to the Attorney General’s office of his own free will and volunteered to make the statement; that the beneficial interest in trust covering the property was in the Random Realty and Finance Corporation, and that he had authority of direction under that trust agreement; that he had signed the application for a loan on the property in question in the amount of $21,500 for new construction; that the value of the lot was $3,000 or $4,000; that Pfeiffer accepted the application and gave the money in a lump sum without following customary procedures; that is, he released the money without asking for waivers or a contractor’s statement; that Knox felt that Pfeiffer knew he was loaning a lump sum of money on a vacant piece of property because the application showed that it was for new construction. Knox further stated that he could not explain how a picture of a home on the property in question was attached to the appraisal report of Frank Starek, who had been employed by Knox.

Knox stated that when the money for Loan No. 1 was given to him he turned it over to Pfeiffer; that he planned to build a new home on the lot when Pfeiffer returned the money to Hillside and released the mortgage. Knox also stated that there was an understanding between himself and Pfeiffer that part of the money Knox received as a loan on the property was to be given to Pfeiffer as a loan. Knox stated that he received the check for $19,250 and cashed it; he endorsed it and put it either in his business account or the Random Realty account, but did not keep the money; that on the same day he issued a check to Pfeiffer for $20,000 as a loan. He stated that this check was written out of the Vernon J. Knox Trust Account in the Home State Bank of Crystal Lake; that there was an agreement between him and Pfeiffer that Pfeiffer would make the payments on the mortgage; that he was certain Pfeiffer was making the payments because he had agreed to do so; that Pfeiffer told him he was unable to make payments after June 23, 1961, but that he would pay them and bring them up to date. Knox further stated that on March 29, 1960, the loan ledger on Loan No. 1 indicated an indebtedness in the sum of $20,456.44, and he could not explain how the entire amount of this mortgage was released as evidenced by a document signed by Pfeiffer and Anthony Montalbano, secretary and assistant treasurer of Hillside. Random Realty was indebted to John Laures, and after the release had been secured on the property in question the lot was conveyed to Laures as. a part payment of the obligation.

Knox also made a statement to the State’s Attorney with reference to Loan No. 1, in which he said that the statement was given voluntarily and without any promise or threat of any kind; that the documents concerning the loan were acknowledged by Knox to be true and correct and bore his signature, and that he had submitted them to Pfeiffer; that Pfeiffer had asked Knox for a loan of $20,000; that the loan which Knox applied for from Hillside was to enable him to make the loan to Pfeiffer; that Knox received $19,250 on the loan he applied for, and that Pfeiffer was the only person at Hillside who handled and processed that particular loan. Knox stated that on the same day he drew a check to the order of Pfeiffer in the amount of $20,000 from a trust account controlled by him; that Knox deposited the check for $19,250 in the trust account at the Home State Bank in Crystal Lake for the purpose of covering substantially the check for $20,000 issued to Pfeiffer; that Knox and Pfeiffer had a conversation in which Pfeiffer stated he would make the payments at Hillside on the particular loan because Pfeiffer was to receive the benefits of the loan; that Knox presented no mechanics’ lien waivers with respect to any proposed construction or improvements to be made on that property; that Pfeiffer took care of the insurance and that Knox had never made any payments on that loan; that prior to the release of the mortgage he had a conversation with Pfeiffer to the effect that it was desirable to release the mortgage in order to improve the particular property. Knox stated that prior to the release of the mortgage he had a conversation with Pfeiffer to the effect that by releasing the mortgage on that particular lot there would be less risk of anyone discovering anything improper with respect to the loan made in June 1959 on account of a too low tax bill or of any physical inspection of the property and finding that it was vacant instead of improved; that at the time in March 1960 that the release was secured and recorded, the loan secured by the mortgage which was the subject of that release, was still outstanding and for the most part in principal amount unpaid; that Pfeiffer kept the payment book covering the loan of June 9, 1959, for the purpose of making the loan payments. Knox stated that he had secured the loan with the knowledge that the particular lot on which the loan was made was not in fact improved, and that the release of the mortgage securing the loan was made with Knox’s knowledge that the loan secured by the mortgage had not in fact been paid, and that when the lot was conveyed to Laures, Knox knew that the loan was not paid off and that Pfeiffer had no authority to release that particular mortgage at that time.

Knox also made a statement to State’s Attorney Bowles with reference to Loan No. 2. Again Knox stated therein that it was given voluntarily and without any promises or threats of any kind; that the application for the loan on Lot 61 in Edgebrook Heights Addition in McHenry was true and correct and bore his signature; that he had secured the appraisal of John W. Fink, Jr., and had submitted it in connection with the application for the loan; that the check of Hillside Savings & Loan Association CN-4245, dated February 20, 1960, in the sum of $23,848.57, payable to the order of Vernon J. Knox, represented the proceeds of Loan No. 2; that the property which was the subject of the loan was not in fact improved but vacant at the time the loan was made; that the application for the loan was made out to show the age of a house allegedly on the lot as one year for the purpose of concealing from Hillside the fact that the property was not improved. Knox stated that the appraisal report also was presented in such form as to be at least somewhat ambiguous and not to show the fact that the property was not improved; that the release of the mortgage was secured by Knox and recorded by him in May 1960; that at the time that particular release was secured and recorded, Loan No. 2, secured by the mortgage which is the subject of the release, was still outstanding and in the most part unpaid; that Knox knew this at the time the release was secured; that Knox secured the release to conceal from Hillside the fact that such release was being secured with respect to a mortgage securing a loan which at that time was unpaid.

These statements were admitted in the trial of the case by the court, over the objection of Knox, a matter which we will take up more fully later on in this opinion. Knox testified in the trial that he had first met Pfeiffer in December 1958, when Pfeiffer was president and general manager of Hillside; that Pfeiffer told him he would be glad to consider any applications he would care to make for loans. He stated that on June 9, 1959, Pfeiffer told Knox about the possibility of Knox’s making him a loan; that Pfeiffer said he would have to have $20,000 soon and would pay it back in 30 or 60 days. Knox said he made out a check for $20,000 and gave it to Pfeiffer on June 9, 1959, at which time Knox had a balance in the Cary State Bank of $35,000 or $40,000. After that he talked to Pfeiffer many times about the loan, and on August 20, 1959, he told Pfeiffer he would have to give him a note or he would sue him for it; that payments were coming due on Loan No. 1, and Knox had to start building a house, and would like to have Pfeiffer assume the loan from Hillside, which Pfeiffer agreed to do. Pfeiffer also agreed to make monthly payments of $136 on the note to Hillside, and said if he did that he would have to sign an assumption agreement, which he did.

In March 1960, Knox told Pfeiffer he would like him to pay off the loan since he had a buyer for the lot. He stated that he received the release of the mortgage in the mail about the first of March; that he recorded the release, then sold the lot to Laures around the first of April; that in March 1961 he talked to the bookkeeper at Hillside regarding the mortgage, and she told him the loan had not been paid off; that he told her he had understood it had been paid off a year before. On rebuttal this testimony was contradicted by the Hillside bookkeeper. Knox stated that he talked to Pfeiffer on April 30, 1961, at which time he asked Pfeiffer about paying off the loan and Pfeiffer said he would do it very soon; that in March 1962 he again talked to Pfeiffer and told him he had not lived up to his agreement to assume the loan and pay it off. Knox identified the appraisal of Starek.

Questioned about the statement he gave to the Attorney General, Knox said those statements were given on the advice of his attorney, but that he did not tell the truth in the statements, although they were fundamentally correct; that when he received the release of the mortgage in March 1960 he believed that Pfeiffer had paid off the loan and that it was his belief until May 1961; that it was still his belief at the time he conveyed the property to Laures; that when he told the State’s Attorney he knew the loan had not been paid off it was because the State’s Attorney told him he should answer “yes” to all his questions as his statement would be used for the purpose of convicting Pfeiffer.

Knox denied having any conversations with Pfeiffer to the effect that he considered it desirable to secure a release so as to avoid or lessen the risk of having anyone discover anything improper about the transaction in which the mortgage was given. He stated that he did not believe that Pfeiffer knew the lot involved in Loan No. 1 was vacant on June 9,1959, when Knox got the check for $19,250; and that his statement to the representative of the Attorney General to the contrary was not true. He stated that he had no understanding with Pfeiffer that he would loan Pfeiffer any amount of money before Loan No. 1 was made, and that the answers given in his statement to that effect were false.

Knox further stated that in August 1959 Pfeiffer first agreed with him to make payments on Loan No. 1, and that if he had ever made a statement to the contrary it was wrong; that the statement he made to the Attorney General was false with respect to the time at which Pfeiffer had agreed to make the payments, and that the statement he made to the State’s Attorney was not true that he and Pfeiffer had on June 9, 1950, discussed making the loan. He stated he was aware that it was the custom at the Crystal Lake Savings and Loan, regarding loans for construction purposes, to release the Association’s money only on liens and waivers presented by the various contractors as construction progressed, although he did not know what the custom was generally. He stated that until about June 1959 he was the secretary of Crystal Lake Association; that he did not think there was anything improper or illegal in his dealings with Hillside with regard to Loan No. 1. He stated that he received the bulk of the proceeds of the loan on June 9, 1959, and that he did not use the $19,250 for construction purposes; that he deposited the check in the Home State Bank at Crystal Lake and drew and delivered to Pfeiffer the check for $20,000 introduced in evidence; that the statement he made to the Attorney General that the money which was given to him was turned over to Pfeiffer, is wrong.

An insurance policy, a State exhibit, on the lot in question was shown to the witness. In the policy the description of the property is “frame, approved roof, one family dwelling.” Knox testified that there was no such house on that location nor was there ever a house during the time the policy was in effect. He stated that the picture attached to an exhibit introduced by the State was really a picture of the house built on the lot next door. He also testified that his statement in the exhibit submitted by the State with reference to his conversation with the State’s Attorney to the effect that the present statement was given by him freely and voluntarily without any promises or threats of any kind, was false; that his statement in the State’s exhibit that the showing of the age of the house as one year was for the purpose of concealing from Hillside the fact that the property in question was not improved, was false; that the application was mistakenly made to show the age of the house as about one year; that he could not explain how the statement came to be made and that he had signed the application but did not read it before signing it.

With reference to Loan No. 2 Knox testified that about April 17, 1962, he made a statement to the chief investigator for the Attorney General that in the application for a loan of $25,000 it was represented that there was a one-year old brick and stone house on the lot. He testified that there was no house and that the statement was false; he said it was his plan to build a house on the lot but it was never built. He testified that his statement that such representation was made in order to deceitfully secure a loan from Hillside was false.

Knox testified that the statement made to the Attorney General that he intended to mislead Hillside by the appraisal was false; that many other of the statements made by him in the State’s exhibit were false. He stated that on May 13 his attorney introduced him to State’s Attorney Bowles; that in the presence of Bowles his attorney told him that Bowles was after Pfeiffer and wanted to use Knox against Pfeiffer; that Bowles said they were interested in getting all the information they could on Pfeiffer; that unaccompanied by his attorney, Knox went with Bowles to his office and made the statement in question.

Knox’s first attorney testified that he had a conversation with Knox but that Bowles was not present; that in that conversation he said nothing about Knox being a witness against Pfeiffer, nor did he tell Knox he would not be prosecuted by Bowles. The attorney further testified that he had never had a conversation with Bowles.

It is apparent from a careful reading of the record that if all the evidence in the record was properly before the jury the State had proved the defendant guilty beyond a reasonable doubt. In this court the defendant contends that the State improperly introduced in evidence other alleged crimes and that the defendant consequently was tried and convicted of a crime for which he was not indicted. The objections are centered upon the introduction of evidence of Loan No. 2, whereas he was indicted only for Loan No. 1. The well-settled rule in Illinois is that evidence of other crimes than those charged in the indictment is competent when it tends to establish a common criminal scheme, plan, system, design or course of conduct. People v. Davis, 412 Ill 391, 107 NE2d 607; People v. Rooney, 355 Ill 613, 190 NE 85.

In the instant case the defendant objects particularly on the ground that the second loan occurred subsequent to the transactions growing out of the first loan for which he was indicted. In People v. Lehman, 5 Ill2d 337, 125 NE2d 506, the court said at 343:

“Defendant suggests that a distinction is to be drawn between prior and subsequent offenses. There are decisions making that distinction where the question at issue is one of knowledge or intent. (See People v. Gotler, 311 Ill 387; People v. Hobbs, 297 Ill 399.) But here the question is whether the defendant’s conduct evidenced a peculiar plan to commit a particular offense, and we see no reason to exclude conduct occurring subsequently. (Cf. People v. Botulinski, 392 Ill 212; Perry v. People, 116 Colo 440, 181 Pac2d 439; II Wigmore, Evidence, secs 304, 316.)”

In the case before us the evidence as to the second loan was introduced to show a particular plan to commit an offense and it was properly admitted. We find no merit in defendant’s contention that the State overtried the case and introduced evidence which was irrelevant.

The defendant also argues that the verdict of the jury which found the defendant guilty of larceny in the manner and form charged in the indictment which also contained the statement “and we further find from the evidence the value of the property so stolen to be $43,098.57,” should be reversed because the indictment and the verdict are contradictory. However, it is the rule that “That portion of a verdict which lies beyond the legitimate province of the jury may be treated as surplusage and disregarded, where to do so will still leave a complete and valid verdict.” 15 ILP, Criminal Law, § 775. In 23A CJS, Criminal Law, § 1397, it is said: “A general verdict, which is responsive to the issues, will not be reversed solely because it finds facts not embraced in the issues; such findings may be rejected as irresponsive and therefore surplusage.”

In People v. Schrader, 2 Ill2d 212, 117 NE2d 786, at 216, it is said: “The test of the sufficiency of a verdict is whether the jury’s intention can be ascertained with reasonable certainty from the language used.” Also see Morella v. Melrose Park Cab Co., 65 Ill App2d 175, 212 NE2d 106; People v. Orlando, 380 Ill 107, 43 NE2d 677; and People v. Williams, 334 Ill 241, 165 NE 693.

In the present ease the amount of $43,098.57 may be rejected as surplusage. The verdict is sufficient.

It is also argued that the court erred in denying defendant’s motion for a mistrial after the Assistant State’s Attorney had testified in rebuttal as a witness for the State. The defendant and the State both rely on People v. Crump, 5 Ill2d 251, 125 NE2d 615. Under the facts in that case we do not think it is applicable. The court is vested with discretion in permitting a witness to testify, even if an order excluding witnesses has been entered. People v. O’Malley, 404 Ill 165, 88 NE2d 454. In the case before us the State’s Attorney was properly permitted to testify in rebuttal as a witness for the State. People v. Schraeberg, 347 Ill 392, 179 NE 829; People v. Gerold, 265 Ill 448, 480, 107 NE 165. 97 CJS, Witnesses, § 113 states: “A prosecuting attorney is competent to testify, in the discretion of the court, even though the practice is not approved except where necessary.”

Defendant also objects to statements made in the argument of the Assistant State’s Attorney. It might be stated as an axiom that there is no perfect trial, nor is there any perfect argument to the jury either on the part of the State or on the part of the defendant. In People v. Clark, 9 Ill2d 46, 137 NE2d 54, the court said at page 50:

“The next contention of defendant is that the closing remarks of the assistant State’s Attorney were so prejudicial and inflammatory as to warrant a reversal of his conviction. Although defendant’s brief and argument contains what purports to be an excerpt of the prosecutor’s summation to the jury, the abstract, by which this court must be guided in its consideration of the errors assigned, does not in-elude either the argument complained of or a showing that any objection was made and a ruling of the court obtained thereon. While we remark in passing that the language of the excerpt does not appear to exceed the bounds of legitimate argument, it is sufficient answer to this claim of defendant to point out that the failure of the party raising such issue to include the argument in the abstract of record, together with a showing of objections and rulings thereon, precludes this court from considering the issue on review. People v. Ritcheson, 396 Ill 146; People v. McDonald, 365 Ill 233; People v. Smith, 404 Ill 125.”

In the case before us the abstract does contain certain excerpts from the argument of counsel; however, much of the matter to which the defendant in his brief raises objections is not contained in the excerpts. In any case, we do not believe that the prosecutor injected prejudicial error into the trial by his closing argument.

In People v. Stahl, 26 Ill2d 403, 186 NE2d 349, the court, while finding that in its opinion the prosecutor in his argument went further than was proper, nevertheless affirmed the judgment in the trial court, saying at page 406:

“Moreover, reversal is not warranted unless it appears that the improper remarks complained of influenced the jury in a manner that resulted in substantial prejudice to the accused. (People v. Swets, 24 Ill2d 418; People v. Berry, 18 Ill2d 453; People v. Sleezer, 9 Ill2d 57.) Here there was overwhelming proof of guilt, indeed the sufficiency of the evidence is not challenged, and the jury returned the only verdict that could reasonably be returned.”

In the instant case the argument made by the prosecutor did not constitute reversible error.

The jury returned a verdict finding the defendant guilty of larceny. The court properly ordered that judgment be entered in accordance with the verdict. However, the judgment as it appears in the record is that the defendant was guilty of obtaining money and goods by means of the confidence game. We do not find any point made on this in defendant’s brief in this court, even though the court before the case went to the jury, had nolle pressed the confidence game count.

The defendant also argues that the trial court erred in failing to make a prior determination of the involuntary character of defendant’s statements to the Attorney General and the State’s Attorney. The defendant argues that the statements were confessions. The State responds by saying that the statements were not confessions but were admissions, and that consequently it was not necessary for the court to pass upon whether they were or were not voluntary. The State makes the further argument that the defendant had failed to make the motion to suppress prior to the trial of the case; that the motion was not made in writing, and consequently was a violation of section 114-11 of the Code of Criminal Procedure (Ill Rev Stats 1963, c 38, § 114-11). However, in People v. Strader, 38 Ill2d 93, 230 NE2d 569, the Supreme Court followed the rule laid down in Jackson v. Denno, 378 US 368, 12 L Ed2d 908, that a defendant is denied due process of law if his conviction is founded, in whole or in part, upon an involuntary confession, and even if there is ample evidence aside from the confession to support a conviction; that the defendant has the constitutional right at some stage in the proceedings to object to the use of the confession and to have a determination upon the issue of voluntariness.

In People v. Lefler, 38 Ill2d 216, 230 NE2d 827, the Supreme Court held that while the statements objected to were not in the true sense of the word confessions, nevertheless they were inculpatory. The court disregarded some previous decisions (People v. Speice, 23 Ill2d 40, 177 NE2d 233, and People v. Stanton, 16 Ill2d 459, 158 NE2d 47), and pointed out that in People v. Hiller, 2 Ill2d 323, 118 NE2d 11 the court held that there should be no distinction between an incriminating statement and a confession, and that an incriminating admission should not be admitted in evidence over objection without a preliminary hearing to determine whether it was voluntary; that the voluntary character of an out-of-court statement must first be established before the statement can be used, even for impeachment purposes. The court cited People v. Newman, 30 Ill2d 419, 197 NE2d 12; People v. Tate, 30 Ill2d 400, 197 NE2d 26; and Miranda v. State of Arizona, 384 US 436, 16 L Ed2d 694, 86 S Ct 1602.

In People v. Costa, 38 Ill2d 178, 230 NE2d 871, just before the trial of the case the defendant made an oral motion asking the court to determine whether certain statements made by him could be admitted in evidence, and the court denied the motion, saying, at page 181:

“It is difficult to determine from the record the precise ground upon which the hearing was denied. The ruling may have been based in part on the assumption that a preliminary hearing is required only when the objection to admissibility is that the statement was ‘involuntary’ in the sense that it was the product of coercion or improper inducement. The defendant’s attorney apparently so understood the ruling. But the principle that underlies Jackson v. Denno, (1964) 378 US 368, 12 L Ed2d 908, also requires a preliminary hearing when the objection is based upon the standards of admissibility prescribed by Escobedo v. Illinois, (1964) 378 US 478, 12 L Ed2d 977, Massiah v. United States, (1964) 377 US 201,12 L Ed2d 246, and more recently Miranda v. Arizona, (1966) 384 US 436, 16 L Ed2d 694. These standards go beyond what has been considered ‘involuntary in traditional terms.’ 384 US at 457, 16 L Ed2d at 713.”

The court in Costa further held that the trial court may have denied the preliminary hearing because no written motion was presented; that “If the ruling rested upon this ground, we are of the opinion that a short continuance should have been granted so that a written motion could be prepared. Whatever the reasons that prompted the ruling, its result is that the defendant was denied an opportunity for the hearing required . . .”

In the instant case, without stating the reasons, the court denied the motion. Whether the statements were considered to be admissions or confessions, upon request the trial court is required to allow a hearing to determine whether or not the statements were voluntary or involuntary. When the statements were offered on the trial of the case an objection was made on the ground that they were not voluntary and that they were induced by the office of the State’s Attorney. In response to a question of the court counsel for the defendant stated that no written motion to suppress had been filed. The motion of the defendant was opposed by the State on the ground that no motion had been submitted in writing prior to the trial and that the State did not consider the writings to be confessions but that they were in the nature of admissions and therefore not subject to any such motion to suppress.

Under the decisions we have cited, it is apparent that the trial court erred and that there should have been a hearing on whether or not the statements— either admissions or confessions — were voluntarily given by the defendant. As we have stated, we find that on the evidence in the record before us the defendant was proved guilty beyond a reasonable doubt. We also find that the court should have conducted a hearing on the defendant’s motion to determine whether or not the statements made by him before the trial were voluntary or involuntary. This case is therefore remanded with directions to the trial court to vacate the judgment of conviction and conduct a hearing in accordance with this opinion.

If the court finds that the statements of the defendant were made involuntarily the trial court shall grant the defendant a new trial. If the court finds that the statements were made voluntarily by the defendant the court shall enter a new judgment and sentence in accordance with the verdict of the jury.

Remanded with directions.

ENGLISH, P. J., and DRUCKER, J., concur.


source: Caselaw Access Project

author: MR. JUSTICE DRUCKER

license: Public Domain

text:
    People of the State of Illinois, Appellee, v. Kenneth D. Winstead, Appellant.
    Gen. No. 51,896.
    First District, Fourth Division.
    December 15, 1967.

      J. Roger Sewell, of Melrose Park, for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James S. Veldman, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE DRUCKER

delivered the opinion of the court.

Defendant was convicted by a jury of the involuntary manslaughter of his three-year-old stepdaughter, Linda Hernandez, and sentenced to a term of not less than nine years nor more than ten years in the Illinois State Penitentiary. He appealed to the Supreme Court on four grounds:

1. The crime was not proved beyond a reasonable doubt.

2. The trial court improperly limited defendant’s cross-examination of the People’s witnesses and did not maintain sufficient control of the trial to insure a fair trial.

3. The court made prejudicial remarks and did not maintain an impartial attitude.

4. The State’s Attorney made improper arguments to the jury.

Finding no substantial constitutional question, the Supreme Court transferred consideration of these contentions to this court.

Evidence

At the trial, there was unrebutted medical evidence that Linda Hernandez died of severe brain damage. There was evidence that Linda had four distinct injuries in the scalp area alone, a massive bruise on her forehead, bruises on each cheek and a large bruise on the chin and neck. Linda sustained numerous injuries to all parts of her body. One doctor testified:

“. . . So the head revealed over the forehead and upper facial aspect multiple contusions or bruises, the largest of these was at the midline extending from about the base of the nose and into the hairline of the child. There were two others in the cheek area over the cheekbone, as we call it here and one rather extensive one on the lower jawbone extending almost to the neck. Then the upper extremities revealed, as well as the lower, many bruises or contusions. That is the arms, the forearms, the thighs, and the lower legs. These were distinctive on both anterior surfaces. Some were on the anterior surface, lateral, medial, and inner surface. There was also on the lower back a very extensive bruise or contusion. This involved the mid part of the lower back extending over both buttocks, but more particularly on the right side in through the inner aspect of the upper thighs and up into the groin area. In addition, some of these bruises also showed what we call an abrasion, that is superficial loss of skin. Some of these were almost like blotches or patches over the buttocks, and over the back, lower back, there were several long, linear laceration-like type of abrasions. That is linear loss of skin. Over the back of the right lower leg there was one of these still crusted or dried blood that coagulated or dried on the laceration.”

There was unrebutted medical testimony that all of these injuries occurred no more than three or four days prior to Linda’s death on December 19.

Jennie Szymanski, a neighbor, testified that on December 11, 1963, while in the basement, directly below the Winstead apartment, she heard a loud slapping sound. She investigated through a hole in the door separating the Winstead apartment from a vacant store in the front of the building. The hole was three feet off the ground and an inch wide and through it she saw Linda Hernandez come “flying” out of the bathroom. She then heard defendant’s wife Theresa shout, “Don’t throw her like that. You will pull her sock [sic] out of her arm.” On December 18, while in her apartment directly above the Winsteads’, Mrs. Szymanski heard a loud banging and the sound of Linda crying. Upon investigation she saw Linda lying on the living room floor and defendant standing over her kicking her about the face and body. She went back to her apartment to call the police and then returned to view defendant administering a few more kicks. On December 19 Mrs. Szymanski heard Linda crying and three or four loud banging sounds against the floor and wall, then the sound of something being thrown to the floor and the crying stopped. Defendant’s wife Theresa shouted, “What did you do to her?”

Mary Lou Fentress testified that on December 19 at 7:30 a. m. Theresa came to her apartment shouting, “Mother! Mother! Linda is dying”; that she took the child to her apartment; that her nephew called the police who took Linda to the hospital where she subsequently died. Mrs. Fentress stated that she had often been a baby-sitter for Linda; that while baby-sitting on November 16 defendant had beaten the child with his hand; that only Mrs. Fentress’ resistance had prevented his using a belt; that she had seen defendant beat Linda with a belt in October; that on December 10 she noticed that Linda was severely beaten from the waist down.

At the hospital the police questioned defendant and his wife as to how Linda incurred her injuries. They both stated that the injuries were the result of a fall from bed. When Officer Hoffheimer pointed out that such extensive injuries could not result from such a fall defendant admitted having beaten Linda with a belt the night before.

At the trial defendant and his wife testified that some of Linda’s injuries were sustained when she fell out of bed and that the large lump on the forehead was sustained when she ran into a radiator. They further testified that Linda was a very clumsy child and that other injuries were sustained during her frequent fallings and bumping into things.

Upon cross-examination defendant’s wife testified that Linda fell from her own bed on the morning of the 19th while defendant testified that the fall occurred while Linda was sleeping with him and his wife on a prior morning.

Defendant’s wife testified as follows:

“A. I said she — I said I heard a noise in the room, she might have fallen off and she could have gotten up again and without letting me know because I heard a noise in the bedroom.
“Q. But when you came in the room Linda was in convulsions on the bed ?
“A. Yes.
“Q. You never saw Linda fall off a bed, is that correct?
“A. No, I just heard the noise in the room.
“Q. Did you run in immediately when you heard the noise?
“A. No.
“Q. So it wasn’t a very loud noise that you heard, is that correct?
“A. It was loud enough.
“Q. But you didn’t run into the room ?
“A. I figured she had picked herself up.”

Defendant’s own cross-examination was as follows:

“Q. I am talking about the 17th, 18th and 19th. In the course of caring for the child did Linda Hernandez fall out of bed ?
“A. Yes, she did.
“Q. How many times ?
“A. Once that I know of.
“Q. What day was that ?
“A. Wednesday, [the 18th of December] I believe.
“Q. What time of the day ?
“A. In the morning.
“Q. Where was she, in your bed ?
“A. Yes.
“Q. Where were you when you heard the thump ?
“A. The same bed.
“Q. You were in bed too ?
“A. Yes.
“Q. What time of the day was this ?
“A. Oh, around nine.
“Q. Did she fall on her head, her buttocks, her ankles, her finger tips, where ?
“A. I don’t know, I didn’t see her fall, I was sleeping.
“Q. How did you know she fell out of bed?
“A. You can hear.
“Q. But you didn’t hear anything on the morning of the 19th when your wife said she heard a thump ?
“A. No.
“MR. HEADY: That is all.”

At the trial defendant’s wife testified that the large bump on the girl’s forehead was received when she ran into a radiator on the afternoon of December 16th. Defendant testified that his wife told him about this accident when he got home from work that day but that they both thought the child was all right. Two doctors testified that it was improbable that the lump on the forehead came from contact with a radiator because there were no lineal lacerations or bruises. The officer who interrogated defendant and his wife at the hospital stated that neither had mentioned Linda’s running into a radiator.

Defendant and his wife both testified that he never threw Linda against a wall, beat her with his hand or kicked her although he admitted hitting her with the leather part of his belt.

Opinion

Defendant first contends that his guilt was not proved beyond a reasonable doubt because the conviction was based on circumstantial evidence which could be explained upon a reasonable hypothesis consistent with innocence. In People v. Huff, 29 Ill2d 315, 194 NE2d 230, where a similar contention was raised, the court said at page 320:

“The fact that the circumstantial evidence relied upon must not give rise to any reasonable hypotheses under which the defendant could be innocent of the crime charged, [citation omitted] does not mean that the trier of fact is “required to search out a series of potential explanations compatible with innocence, and elevate them to the status of a reasonable doubt.”

In that case the defendant was convicted of the murder of a two-year-old child, a daughter of the woman with whom he lived. Some of the neighbors testified that they had heard sounds like a belt striking flesh and then a baby crying on numerous occasions. Defendant himself admitted to the police that he had beaten the girl with a belt and with an elastic strap on several occasions but at the trial he would only admit to using the elastic strap. The child had numerous bruises all over her body including her head and especially her back and buttocks. There was medical testimony that she died of brain damage. There was no direct evidence of the actual act which caused the child’s death. The court said at page 320:

“A conviction may be based upon circumstantial evidence, and this court has held that the manner of death and the means by which it was inflicted may be inferred from the circumstances proved. People v. Bartell, 386 Ill 483.”

In the instant case the jury evidently disbelieved the testimony of the defendant and his wife that the fatal brain damage was caused by Linda’s falling from bed or running against a radiator or some other unexplained occurrence. The State’s evidence told of the shocking physical abuse of a three-year-old child by defendant; it showed numerous, massive injuries to her and the extensive brain damage which caused death. The circumstantial evidence in this record justified the jury in believing that Linda was mortally injured by defendant and its verdict so grounded must be sustained. See People v. Sapp, 282 Ill 51,118 NE 416.

Second, defendant contends that the court improperly limited the cross-examination of the State’s witnesses in some instances and lost control of the proceedings to defendant’s prejudice in other instances. On cross-examination defendant should be allowed “. . . reasonable latitude ... to test the means of observation and the accuracy of the memory . . .” of the witness (People v. Del Prete, 364 Ill 376, 380, 4 NE2d 484) and to question “. . . as to whatever goes to explain, modify or discredit what he has stated in his first examination.” (Chicago City Ry. Co. v. Creech, 207 Ill 400, 403, 69 NE 919.) Cross-examination, however, is necessarily within the discretion of the trial judge and it is only for a clear abuse of that discretion, when judged by the standards of Del Prete and Creech, that a case will be reversed. People v. Provo, 409 Ill 63, 97 NE2d 802; People v. McCain, 29 Ill2d 132, 193 NE2d 784.

Defendant complains that he was not allowed to ask Mrs. Szymanski whether she knew that defendant had been shot or that he had sprained his ankle prior to the time she testified she saw him kicking Linda. Whether or not the witness knew of these occurrences has nothing to do with her ability to perceive, the accuracy of her memory or her veracity. Although direct evidence as to these facts bears on the likelihood of defendant’s kicking Linda as testified, it was more properly a part of defendant’s own case and was later introduced in defendant’s evidence. There was no abuse of discretion in thus limiting the cross-examination.

In response to Mrs. Szymanski’s testimony that she observed defendant kicking Linda through a crack in the door, defendant unsuccessfully sought to ask, “You had tenants in the building yet you allowed a crack to stay in the door when they were renting from you?” There was no error in sustaining the objection to this question since defendant sought to show that only a part of the living room was visible through the crack and did not dispute its existence.

Defendant argues that he should have been permitted to ask Mrs. Szymanski why she failed to notify Linda’s mother of the brutality she testified to. In view of Mrs. Szymanski’s testimony that Theresa had on two occasions shouted at defendant about his treatment of Linda, the purpose of this question could only be to harass the witness. Its exclusion was not error.

Finally, defendant suggests that he should have been permitted to ask Mrs. Szymanski what the police did when they came to defendant’s apartment in response to her call on December 18. The record shows that Mrs. Szymanski testified that when the police arrived she heard part of the conversation between the police officers and defendant and then returned to her apartment. She was asked whether the police arrested defendant and the objection was sustained on the ground that she had testified that she left the area of defendant’s apartment and consequently did not know what happened. We find no prejudicial error in this ruling.

In addition to the excessive limitation of his cross-examination, defendant suggests that the court did not sufficiently limit some of the witnesses. He argues that the court did not maintain adequate control of the trial.

Defendant complains that on three occasions Mrs. Fen-tress was allowed to ramble and give unresponsive answers to his cross-examination over his objection. The following testimony is complained of:

“Q. On the 16th of November when you said Kenneth Winstead came home from the hospital and Linda was ill you said her fever was 103° ?
“A. That’s right.
“Q. You had been watching Linda while Mrs. Winstead worked and Mr. Winstead was at the hospital, hadn’t you ?
“A. Yes, but she wasn’t sick. When she seen him she run a fever and shake like everything and run from him and scream. She don’t want anything to do with him.
“MR. HOWARD: I ask the Court to instruct the witness to only answer the question put to her and not add any other statements.
“THE COURT: Well, I think she was answering your question, Counsel.
“Q. What other occasion did she run a temperature of 103°?
“A. Any other occasion he was around and beat her.”

Although Mrs. Fentress’ first statement about the circumstances of Linda’s illness was not responsive to the immediately prior question, it was responsive to the general line of questioning. The cross-examiner had implied that the witness attributed the fever to an illness and the witness had a right to explain that.

The second occasion complained of was the following:

“Q. She also — you—when you talked to the police about this before you stated Mrs. Winstead said that Linda had fallen out of bed on the morning of December 19th, didn’t you ?
“A. She told me from the hospital that Linda had fell out of bed. That was the story she gave at the hospital.
“MR. HOWARD: Objection.
“MR. KATZ: Let her answer.
“THE COURT: Overruled.
“MR. HOWARD: The witness is stating a conclusion when she said it was a story.
“THE COURT: Just a minute.
“MR. KATZ: Let her finish her answer.”

The witness then related the following:

“She [defendant’s wife] called me from the hospital and she told me that Linda had been admitted to the hospital, and she said, T told them that she had fell out of bed.’ I said, ‘Theresa, you are not going to get by with that. You know what have happened to that baby.’ And she said, ‘Well, I am pregnant, expecting another baby, what can I do? I don’t know what to say.’ ”

No objection or motion to strike was made to this testimony and we perceive no error.

Thirdly, defendant complains that when Mrs. Fentress was cross-examined about her testimony that she observed defendant holding a spoon in Linda’s mouth, the following objectionable testimony was given:

“Q. Do you know why he had a spoon in her mouth?
“A. No, I don’t. Maybe he was going to finish killing her.
“MR. HOWARD: Object to that.
“THE COURT: The Jury will disregard that remark.”

As was said of a similar situation in People v. Naujokas, 25 Ill2d 32, 182 NE2d 700, at page 36:

“. . . In view of the fact of the court’s prompt action and the fact that the testimony was not adduced by action of the State, we feel that the court was not in error in denying the motion for a mistrial.”

This testimony does not require reversal.

Defendant further argues that the court erred in allowing Officer Hoffheimer to testify that the other officer at the police station told him that defendant had never mentioned Linda’s running into a radiator but had stuck to the story, which was told him, of her falling out of bed. The overruling of defendant’s objection was error since this testimony was hearsay. However, in the case of People v. Davis, 10 Ill2d 430, 140 NE2d 675, at page 444, the court said:

“It is not the purpose of a court of review to determine whether or not a record is free from error, but rather to determine whether or not the accused has had a fair trial under the law and whether his conviction is based upon evidence establishing his guilt beyond a reasonable doubt.” People v. Stavrakas, 335 Ill 570, 583, 167 NE 852.

We cannot conclude that this testimony precluded defendant from having a fair trial or that it affected the trial’s result.

Finally, objection is made to other testimony elicited in cross-examination but not objected to at the trial. The general rule is that failure to object at trial will bar review. People v. Burage, 23 Ill2d 280, 178 NE2d 389. Exception will be made where there could not otherwise be a fair trial or where denial of review would lead to a deterioration of the judicial process (People v. Sprinkle, 27 Ill2d 398, 189 NE2d 295). But this is not such a case. These objections cannot be reviewed by this court.

Third, defendant contends that the trial judge made comments prejudicial to him at the trial. He argues that it was prejudicial error for the judge to caution defense counsel within the jury’s hearing about asking improper questions on cross-examination which might tend to prejudice the jury. The defense attempted to weaken the testimony of Mrs. Szymanski and another prosecution witness by insinuating irrelevant wrongdoing on their part. We believe the following language from People v. Shockey, 66 Ill App2d 245, 249, 213 NE2d 107, is pertinent:

“. . . In almost every case it is possible to take some remark [of the trial judge] out of context and out of the heat of a trial and find possible prejudice. It is one thing to consider these isolated remarks in the tranquil atmosphere of an appellate tribunal and quite another thing to consider them in the whole context of an actual trial. It is apparent from a reading of the entire record that the remarks were a result of severe provocation on the part of the defendant’s counsel.”

See also People v. Jones, 29 Ill2d 306, 194 NE2d 239.

Defendant also complains of the judge’s commending the jury on their verdict and telling them they could have been sterner and found guilt of a more serious crime. The judge is under no obligation not to have a view of the case and such commendatory remarks after the verdict are not error. People v. Mason, 63 Ill App2d 211, 211 NE2d 494. Defendant’s complaint about the judge’s characterization of him at the hearing on aggravation and mitigation is equally futile. At such a hearing the judge has a duty to determine whether or not the defendant is entitled to lenience and his articulation of his reasons for a stern sentence cannot be error. Defendant, however, claims that these statements reflect the judge’s prejudice and were manifestations of the biased manner in which he conducted the trial. Since he is unable to demonstrate improper judicial action at the trial, his argument must fail.

Fourth, it is contended that the State’s Attorney made prejudicial statements during the closing arguments. Defendant maintains that references to the defendant’s lying about the cause of Linda’s death and references to his throwing her against the wall were improper because they were based on the prosecutor’s personal belief rather than the evidence. There was evidence that defendant changed his story of the cause of Linda’s death. Further, the convincing showing of physical brutality could give a jury basis for doubting that the fatal injury was caused by an accident as defendant testified. It was proper to argue that defendant was not telling the truth. People v. Weaver, 18 Ill2d 108, 163 NE2d 483. It was also proper to argue that defendant threw Linda against the wall. Mrs. Szymanski testified that she heard the sound of something being thrown against a wall and then Linda’s crying. “We are of the opinion that this argument was a legitimate inference and conclusion from the evidence and as such was admissible.” People v. Hayes, 23 Ill2d 527, 531, 179 NE2d 660.

Cases cited by defendant are distinguishable. In People v. Black, 317 Ill 603, 148 NE 281, the prosecutor told the jury twice that he would not seek a conviction if he and his associates were not absolutely sure of the defendant’s guilt. In Appel v. Chicago City Ry. Co., 259 Ill 561, 102 NE 1021, counsel said that based on his canvass of the area of the accident, he was sure that what his proffered witnesses had said was true. In both cases counsel explicitly rested arguments on personal beliefs based on experience outside of the trial. The prosecutor in the instant case argued only what was based on the evidence presented. Defendant also cites People v. Dukes, 12 Ill2d 334, 146 NE2d 14. In that case the prosecutor injected into closing argument insinuations about a prior record which he based upon an alias appearing in the indictment. We have no such situation before us.

Defendant also complains about the prosecutor’s remark that defendant’s wife may very well have been lying because wives often lie for their husbands. This was clearly an answer to defendant’s closing argument that a child’s mother wouldn’t lie to protect a killer. It is not error to point out possible sources of a witness’ bias. Furthermore, the State’s Attorney is entitled to answer defendant’s argument. People v. Hayes, 23 IIll2d 527, 179 NE2d 660.

Defendant asks us to review other parts of the closing argument which he now cites as error but which he failed to object to at the trial. Review of closing arguments which have not been objected to can be had only where the parties could not otherwise receive a fair trial or review is necessary to prevent deterioration of the judicial process. People v. Sprinkle, 27 Ill2d 398, 189 NE2d 295. Review can also be had where the accused would otherwise be deprived of a constitutional right. People v. Weinstein, 35 Ill2d 467, 220 NE2d 432. The instant case, however, falls not under these exceptions but under the general rule that failure to object to closing arguments bars their review. People v. Wilson, 342 Ill 358, 174 NE 398.

We find that the verdict was supported by the evidence and that the trial was free of prejudicial error.

Affirmed.

ENGLISH, P. J. and McCORMICK, J., concur.

       Involuntary Manslaughter is defined in section 9-3 of the Criminal Code (Ill Rev Stats 1963, c 38, § 9-3):
      (a) A person who kills an individual without lawful justification commits involuntary manslaughter if his acts whether lawful or unlawful which cause the death are such as are likely to cause death or great bodily harm to some individual, and he performs them recklessly.


author: MR. JUSTICE ADESKO

text:
    Anita Roberts, Plaintiff-Appellant, v. Harry Roberts, Defendant-Appellee.
    Gen. No. 51,585.
    First District, First Division.
    December 18, 1967.

      Kalcheim & Kalcheim, Henry A. Kalcheim, and Bernard Hammer, of Chicago, for appellant.
    Robert E. Cherry, of Chicago (Joel L. Greenblatt, of counsel), for appellee.
   MR. JUSTICE ADESKO

delivered the opinion of the court.

The parties to this cause were divorced in 1963. In 1966, the wife filed a petition for post decree relief. Of the three counts in her petition, only the third one is involved in this appeal. Count III sought a declaration from the court that certain provisions of the property settlement agreement incorporated as a part of the divorce decree are null and void. The agreement called for a lump-sum settlement in lieu of alimony, payable in weekly installments. The agreement went on to provide that payments would terminate upon death or remarriage of the wife. The argument is that such provisions are repugnant to section 18 of the Divorce Act (Ill Rev Stats 1965, c 40 § 19) and to the public policy of the State of Illinois. The court found these provisions to be valid and not void. Plaintiff was granted a rehearing on this ruling and memoranda of law were submitted to the trial court by both sides. The trial judge adhered to his original decision and this appeal follows.

Reviewing plaintiff’s pleading we find that she set forth the relevant provisions of the divorce decree, section 18 of the Divorce Act, and two additional paragraphs which conclude that the parties may not contract in any way contrary to the statute and that the agreement is void insofar as it violates the statute or public policy. Plaintiff then prays that such provisions of the agreement be declared null and void ab initio.

The pleadings contain no allegation that there is an actual controversy between the parties. There is no allegation that plaintiff is contemplating remarriage, that she is suffering from an incurable terminal disease, or any other allegation that would demonstrate a need for the declaration of rights.

Under the declaratory judgment provisions of The Civil Practice Act (Ill Rev Stats 1965, c 110 § 57.1) declarations of rights can only be made in cases of actual controversy. Exchange Nat. Bank of Chicago v. County of Cook, 6 Ill2d 419, 129 NE2d 1 (1955). While the complaint on its face does not appear to plead an actual controversy, the Declaratory Judgment Act is to be liberally construed and not restricted by technicalities. Central Ice Cream Co. v. Universal Leaseway System, 20 Ill App2d 145, 155 NE2d 324 (1959). We believe that there is an actual controversy in the instant case. There are adverse legal interests. Although no wrong has yet been committed, such is not necessary to obtain declaratory relief. The mere existence of a claim, assertion or challenge to plaintiff’s legal interests, in which the ripening seeds of litigation may be seen and which cast doubt, insecurity, and uncertainty upon plaintiff’s rights or status, damages plaintiff’s pecuniary or material interests and establishes a condition of justiciability. Trossman v. Trossman, 24 Ill App2d 521, 165 NE2d 368 (1960). Plaintiff in the instant cause has the right to know whether she will continue to receive the weekly payments of the lump-sum alimony and an action for declaratory judgment is proper.

Turning to the merits, the settlement agreement, which was incorporated into the divorce decree, provides as follows:

“(T)he parties hereto consider it to their best interests to settle between themselves, now and forever, the questions of alimony and support for Anita; the custody of the two minor children; the respective rights of property and dower of the parties; and any and all rights of property and otherwise, growing out of the marital or any other relationship now or previously existing between them, or which either of them now has or may hereafter have or claim to have against the other, and all rights of every kind, nature and description which either of them now has or may hereafter have or claim to have against the other, or in or to any property of the other, of every kind, nature and description, whether real, personal or mixed, now owned or which may hereafter be acquired by either of them.
“Harry (defendant-appellee) agrees to pay Anita (plaintiff-appellant), as a lump sum settlement in lieu of alimony, the sum of $-, payable in . . . equal weekly installments, . . . provided, however, (a) if the parties hereto are hereafter divorced and if Anita remarries thereafter, the obligation and requirement of Harry to make any further payments to Anita under the terms of this paragraph 2 of this Agreement for the weeks subsequent to Anita’s remarriage, shall terminate absolutely; and (b) if Anita dies prior to the termination of Harry’s obligation under the terms of this paragraph 2 hereof, irrespective of whether Anita shall have remarried during her lifetime, the obligation of Harry to make any payments subsequent to the death of Anita under the terms of this paragraph 2 hereof shall terminate absolutely.”

The relevant portion of section 18 of the Divorce Act, (Ill Rev Stats 1965, c 40 § 19), upon which plaintiff relies to sustain the assertion that the above proviso in the property settlement agreement is void, states as follows:

“A party shall not be entitled to alimony and maintenance after remarriage; but, regardless of remarriage by such party or death of either party, such party shall be entitled to receive the unpaid installments of any settlement in lieu of alimony ordered to be paid or conveyed in the decree.”

No case in Illinois deals with the precise issue of the effect of a proviso in a property settlement agreement which terminates the installments of a lump-sum settlement upon the death or remarriage of the wife. In dealing with the issues of this case, we must bear in mind that there are two distinct types of alimony, lump-sum alimony, sometimes referred to as alimony in gross, or a property settlement, and ordinary alimony or periodic alimony. Walters v. Walters, 409 Ill 298, 99 NE2d 342 (1951); Jacobson v. Jacobson, 50 Ill App2d 244, 200 NE 2d 379 (1964). There are many cases which turn on the question of whether the “alimony” award was gross alimony or periodic alimony. Typical of such cases are Jacobson v. Jacobson, supra; Whitney v. Whitney, 15 Ill App2d 425, 146 NE2d 800 (1958); Maybaum v. Maybaum, 349 Ill App 80, 110 NE2d 78 (1952); Stromsem v. Stromsem, 344 Ill App 530, 101 NE2d 742 (1951).

The negotiated settlement agreement here provided for “a lump-sum settlement in lieu of alimony.” Both parties have presented this case as one involving a property settlement (gross alimony). The court fully recognizes that the terms and labels used by the parties and incorporated in the decree are not conclusive in characterizing the alimony payment as gross or periodic. Walters v. Walters, 409 Ill 298, 99 NE2d 342 (1951). The fact that the payments provided for are payable in installments does not negate a property settlement. Walters v. Walters, 341 Ill App 561, 94 NE2d 726 (1950). Nor do we feel that the provision terminating the installment payments upon the death or remarriage of the wife change the settlement agreement to one for periodic alimony. Language to the contrary in Adler v. Adler, 373 Ill 361, 26 NE2d 504 (1940), is only in reference to the specific language of the agreement in that case. Plaintiff here has waived her right to alimony and agreed to be forever barred from the same. The intention of the parties before us, as it appears from the above quoted portions of the agreement, was not to place a dollar limit on the amount of alimony, but to enter into a property settlement in lieu of alimony as well as all other claims. In Adler, the wife had no marital property rights other than alimony. Thus the award of “alimony” was construed by the court to be periodic alimony and the case is, consequently, inapplicable here.

In a periodic alimony situation, the rule has always been that remarriage will terminate the right to receive alimony payments. Stillman v. Stillman, 99 Ill 196 (1881). This general rule was made part of section 18 of the Divorce Act in 1933, and has been uniformly applied. See Adler v. Adler, supra; Balasa v. Balasa, 11 Ill App2d 103, 136 NE2d 594 (1956); Coleman v. Coleman, 341 Ill App 462, 94 NE2d 507 (1950).

In Banck v. Banck, 322 Ill App 369, 54 NE2d 577 (1944) and Hotzfield v. Hotzfield, 336 Ill App 238, 83 NE2d 605 (1948), the courts construed settlement agreements using the phrases “gross alimony” and “full lump-settlement of all such rights including the right to alimony,” respectively, as providing for periodic alimony. The general rule of terminating alimony upon remarriage was then applied.

Even more significant is the case of Miller v. Miller, 317 Ill App 447, 46 NE2d 102 (1943), where an agreement was entered into regarding the question of alimony. The agreement provided that the monthly payments for the first three and one-half years after the divorce would not be affected or modified by the remarriage of the wife. The court refused to accept this proviso as binding upon it. The statute, which at that time only provided that a party shall not be entitled to alimony and maintenance after remarriage, “made it mandatory for the court to cancel the alimony payments after the remarriage of the plaintiff.” (P 451.) The court would not be divested of its powers to modify alimony in a manner contrary to the legislative will.

However, when faced with the so-called property settlement or gross alimony situation, the courts held in an unbroken line of cases reported prior to 1944, that decrees for divorce making such awards could not be modified at a later time because of a change in circumstances. See Walters v. Walters, 341 Ill App 561, 94 NE2d 726 (1950), specially concurring opinion of Justice Niemeyer and cases cited therein; Stromsem v. Stromsem, supra. However, in Banck v. Banck, supra, a gross alimony provision, payable in installments, was construed to constitute periodic alimony and modified by the court. Hotzfield v. Hotzfield, supra, adopted the Banck decision and reached the same result. Two years after Hotzfield, the Supreme Court in Walters v. Walters, supra, held that “a lump-sum property settlement and alimony in gross” was an agreement that could not be modified in the absence of fraud or want of jurisdiction. Several of the more recent cases adhering to this rule are: Taylor v. Taylor, 70 Ill App2d 201, 217 NE2d 89 (1966); Jacobson v. Jacobson, supra; Whitney v. Whitney, supra; Maybaum v. Maybaum, supra; Stromsem v. Stromsem, supra; Corey v. Corey, 343 Ill App 648, 99 NE2d 713 (1951).

These basic differences between periodic and gross “alimony” must be borne in mind in examining the issues in the instant case. Plaintiff’s argument is rather straightforward. In 1949, the legislature amended section 18 of the Divorce Act to remedy the result reached in Banck and Hotzfield. The amendment provided that “regardless of remarriage by such party or death of either party, such party shall be entitled to receive the unpaid installments of any settlement in lieu of alimony ordered to be paid or conveyed in the decree.” This, plaintiff contends, was a declaration of public policy which cannot be countermanded by any agreement of the parties. It is further urged, that just as in Miller v. Miller, supra, where the court refused to recognize an agreement to pay periodic alimony after remarriage, so the court in the instant case should reject an agreement to terminate installments of a lump-sum settlement after death or remarriage. We do not agree with this argument.

Initially, we note that because the court in Miller was dealing with periodic alimony, it had continuing jurisdiction over the award. Kohl v. Kohl, 330 Ill App 284, 71 NE2d 358 (1947). Just as parties cannot invoke a court’s jurisdiction by agreement, Meyer v. Meyer, 328 Ill App 408, 66 NE2d 457 (1946), they cannot divest a court of jurisdiction by agreement.

Secondly, the Banck and Hotzfield cases which led to the amendment of section 18 of the Divorce Act, were both strained interpretations of the agreements involved in those cases. These cases were perhaps best described by the Supreme Court in Walters v. Walters, supra:

“We deem it unnecessary to discuss the Hotzfield case cited, (Hotzfield v. Hotzfield, 336 Ill App 238,) as that case follows and quotes at length and verbatim from the Banck case. The harshness of the strict application of the rules stated in the Banck case to other cases, without due consideration to the particular facts involved, no doubt led to the adoption by the legislature of the 1949 amendment, wherein, at least as to decrees entered before and modified after its adoption, this situation cannot again occur.” (409 Ill at p 305.)

See also McGaughy v. McGaughy, 410 Ill 596, 102 NE2d 806 (1951), and Smith Hurd Illinois Annotated Statutes, chapter 40, § 19, Historical Note.

The lump-sum settlement agreements in the Banck and Hotzfield cases did not contain any provision with respect to termination of payments upon death or remarriage. As pointed out in Walters, it was the strict application of the rule that “alimony” terminates upon remarriage without distinguishing “periodic alimony” from “gross alimony” that led to the 1949 amendment. Indeed, as Justice Dady pointed out in his dissent in Banck:

“Undoubtedly a great many decrees have been entered in this State for gross alimony payable in instalments where payment in full has not yet been completed. If the majority ruling is the law it would also seem to follow that if the beneficiary under such a decree dies before payment is fully made then the unpaid balance will not be an asset of the estate of such beneficiary and the husband will be relieved from further payment under said section 18. I do not believe that the legislature intended any such results by the use of any of the language used in section 18. When the literal enforcement of a statute will result in great injustice and lead to consequences which the legislature could not have contemplated, the courts are bound to presume that such consequences were not intended and adopt a construction that it may be reasonable to presume was contemplated by the legislature. (Hoyne v. Danisch, 264 Ill 467, 484.)” (322 Ill App, at p 398)

See also Rosensteil v. Rosensteil, 16 NY2d 64, 262 NYS2d 286, 209 NE2d 709 (1965).

Thus, as we view the present section 18 of the Divorce Act, it distinguishes the distinction between the two types of alimony. While it prevents a court from terminating installments of a lump-sum settlement upon death or remarriage, it would be illogical to interpret the statute as preventing the parties from so agreeing. Section 18 was adopted to correct the unjust result of the Banck and Hotzfield cases, not to inhibit property settlements.

Parties to divorce suits have always been commended for their attempts to amicably settle their property interests. Walters v. Walters, 409 Ill 298, 99 NE2d 342 (1951). It has also been the policy of our courts to enforce such settlement agreements. In Buck v. Buck, 60 Ill 241 (1871), a husband attacked an alimony award as excessive. The Supreme Court held:

“It sufficiently appears from the recitals in the decree, that the whole question of alimony was fixed and settled by the agreement of the parties, not only the amount of money and articles of personal property allowed to the defendant in error, but also the provision made for the support and maintenance of their adopted daughter. Having consented to these provisions of the decree, the plaintiff in error can have no relief against the force of his own voluntary agreement.”

In those cases which have refused to terminate installments of gross alimony upon remarriage of the wife, the court has characterized her rights to those installments as vested and not modifiable. Walters v. Walters, supra, (Ill and Ill App); Jacobson v. Jacobson, supra. This rule is a two-edged sword. The husband in the instant case had negotiated for the vested right to terminate payment of the installments upon his wife’s death or remarriage. There is no public policy which requires us to destroy his expectation. The reasoning in Stillman v. Stillman, supra, that a husband should not be obligated to support his wife’s second marriage is a central issue in property settlement negotiations. To exclude this consideration would severely restrict a desirable and encouraged practice in the law of marital relations. Furthermore, a husband may be willing to agree to pay a large lump sum in installments only if such payments will terminate upon the wife’s death or remarriage.

Plaintiff in the instant case agreed to accept a stated sum from defendant as a full and final settlement of her rights to support, alimony, property, dower, and other rights growing out of the marital relationship. She further agreed that she would, in effect, accept a lesser sum if she remarried or died prior to completion of the payment schedule. We agree with plaintiff that an agreement which violates public policy will not be enforced, however, as already indicated, there is no policy, either by statute or court decision, which prevents a wife from agreeing to accept a lump-sum settlement contingent upon future events, or which prevents a husband from negotiating for the right to place such contingencies in the settlement agreement.

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

Judgment affirmed.

MURPHY, P. J. and BURMAN, J., concur.

       In Whitney v. Whitney, 15 Ill App2d 425, 146 NE2d 800 (1957), the decree called for payment of $14,500 as a property settlement payable in monthly installments. A separate stipulation, executed by the parties, provided that the payments would terminate if the wife died and be reduced to % if she remarried. However, because the stipulation was not made a part of the decree, the court was forced to disregard the stipulation and only the decree was controlling.


author: MR. PRESIDING JUSTICE MURPHY

text:
    Consolidated Construction Co., Inc., Plaintiff-Appellant (Cross-Appellee), v. Great Lakes Plumbing & Heating Co., Algonquin Realty, Inc., United Air Lines, Inc., and Gust K. Newberg Construction Co., Inc., Defendants-Appellees (Cross-Appellants).
    Gen. No. 52,030.
    First District, First Division.
    December 18, 1967.

      Brown, Rosenthal & Wilson, and Lochtan and Wolfe, of Chicago (Harry G. Fins, of counsel), for appellant.

      Sonnenschein, Levinson, Carlin, Nath & Rosenthal, of Chicago (Bernard J. Nussbaum and Michael M. Lyons, of counsel), for appellees.
   MR. PRESIDING JUSTICE MURPHY

delivered the opinion of the court.

Plaintiff, Consolidated Construction Co., appeals from an order which struck plaintiff’s three-count third amended complaint and dismissed the action as to all defendants with prejudice. Defendants cross-appeal from the denial of their motions for orders directing plaintiff to pay defendants reasonable attorneys’ fees and costs, pursuant to section 41 of the Civil Practice Act.

As plaintiff has withdrawn Count II from the appeal, the determinative issue is whether Counts I and III of plaintiff’s third amended complaint state causes of action. The pertinent paragraphs of each count are set forth in detail.

COUNT I

2. That prior to August 2, 1960, Great Lakes and Newberg, Defendants, entered into certain contracts with Algonquin and United, Co-Defendants, to furnish labor, materials and equipment in the construction and installation of an underground utility system and apurtenant structures in the United Airline Executive Building and Education and Training Center at O’Hare Field, in the City of Chicago, County of Cook and State of Illinois, which details of “Construction” are unknown to the Plaintiff.

3. That the Plaintiff, Consolidated, on or about August 2, 1960 was the owner of considerable building materials described as vitrified tile pipe, concrete pipe, precast concrete manholes, Redi-Mix concrete, gravel bedding, Portland cement and said, manhole blocks, and cast iron pipe and fittings, all of which was located at or near the property of the Defendant, United, at O’Hare Field by a site on which a building was to be constructed which would be known as the United Air Line Executive Building and Education Training Center.

4. That the Defendant, Great Lakes, with the knowledge and consent of the Defendants, Newberg, Algonquin and United, unlawfully used and converted said materials described in Paragraph 3, to the use of Great Lakes in the course of performing its contracts with Newberg, Algonquin and United in the construction of the building to be known as the United Air Line Executive Building and Education and Training Center at O’Hare Field. That the Defendants knew that said material belonged to the Plaintiff.

5. That subsequent to August 2, 1960, Plaintiff on numerous occasions, demanded of Defendants to return said material and equipment to the Plaintiff, but the Defendants willfully failed and refused and still willfully fail and refuse to return said materials, merchandise and equipment, or to pay the reasonable value thereof.

6. That the value of said property is $40,000.00.

Wherefore, Plaintiff prays for judgment in the sum of Forty Thousand Dollars ($40,000.00) against the Defendants, Great Lakes, Algonquin, United and Newberg in favor of the Plaintiff.

COUNT III

[Paragraphs 1 through 3 are realleged.]

4. That the Defendant, Great Lakes, with the knowledge and consent of the Defendants, Newberg, Algonquin and United used said material in the course of performing its contracts with Newberg, Algonquin and United, well knowing said materials to belong to the Plaintiff and knowing that Plaintiff had a large investment in said material.

5. That subsequent to August 2, 1960, the Plaintiff on numerous occasions has demanded of Defendants that they pay the reasonable value of the material and equipment to the Plaintiff, but the Defendants have failed and refused to make such reasonable payment.

6. That the value of said property is Forty Thousand Dollars ($40,000.00).

7. That an implied in-law contract exists by operation of law to pay the reasonable value of said material to the Plaintiff.

Wherefore, Plaintiff prays for judgment in the sum of Forty Thousand Dollars ($40,000.00) against the Defendants, in favor of the Plaintiff.

Defendants’ motion to strike the third amended complaint was on the grounds that (1) it was improper; (2) all of the counts were substantially insufficient in law; and (3) the action was defeated by admissions of plaintiff’s counsel in open court. Defendants’ motion stated, “The original and first two amended complaints were substantially identical. In each, plaintiff alleged that it was a materialman and had delivered certain materials and unidentified equipment to a ‘job site’ at O’Hare Field for use in the construction of a building to be known as ‘United Airline Executive Building and Education and Training Center.’ ... In none of these complaints was it shown or even alleged that the taking or use of the materials and equipment was wrongful. Indeed, plaintiff admitted that they were used for the purpose for which it had furnished them. Clearly, plaintiff’s complaint was not that they had been wrongfully taken or used, but rather that it had not been paid for them.”

The motion related in detail the substance of the allegations of previous complaints, the original of which was filed February 23, 1962; the colloquy between court and counsel at each hearing; and the reasons for striking each complaint.

To show that the instant complaint was improper, defendants’ motion asserted that “the action is inconsistent with allegations in the previous complaints” because “now that plaintiff has shifted its action to one in tort for conversion, it has carefully deleted these facts from the present complaint since they would obviously negate any possibility of conversion and therefore defeat the entire action,” and “on the pretext of amending the previous complaint, plaintiff has not only brought a new action, but it has sought to expunge from the record all of the allegations of its previous complaints that are inconsistent with it. Such improper use of the privilege of amending has been condemned by the courts.” Also, to show that the complaint was improper, the motion stated, “The present complaint is not the type of amendment which is permitted by Section 46 . . . [because] the manifest purpose of allowing amendments changing the cause of action is to prevent the injustice of denying relief merely because the plaintiff has chosen the wrong theory. No matter how liberally section 46 may be construed, it certainly does not permit a plaintiff to bring a new action and at the same time repudiate all previously alleged facts which would defeat it. This is precisely what the plaintiff here is attempting to do. . . . In short, plaintiff’s present complaint and action are improper since they are in conflict with allegations of its previous complaints.”

The basis for the allegation that the instant complaint was “defeated by admissions of counsel in open court” occurred at a hearing to dismiss the second amended complaint on March 10, 1966. The motion alleged that at that hearing plaintiff’s counsel represented to the court that plaintiff had a written contract with “Jack Kennedy,” “the sub-contractor, to furnish these materials,” and “such admissions by counsel in open court are to be treated as established facts in the case, and therefore defeat any action which is inconsistent with them. . . . The fact that plaintiff had this written contract with Kennedy, which plaintiff failed to disclose in any of its complaints, negates the possibility of any action against the defendants. Clearly, plaintiff’s only remedies were to secure and foreclose a mechanic’s lien against the premises or sue Kennedy on its contract, or even do both.”

To show that “the present complaint is insufficient in law,” the motion alleged, “In each count of the present complaint, plaintiff seeks to allege an action in trover for conversion of personal property. The three essential elements of such an action are that (1) the plaintiff owned the property at the time of the alleged conversion, (2) the plaintiff had possession, or a right to immediate possession, of the property at the time of the alleged conversion, and (3) the defendant wrongfully converted the property to its own use.” The motion asserted that Count I lacked two of the foregoing three essential elements. “There is no allegation that plaintiff was the owner of the materials at the time of the alleged conversion. Nor is it alleged that at any time plaintiff had possession of the materials or even a right to their immediate possession.”

As to Count III, the motion alleged that it lacked all of the essential elements of an action in trover, and “It has been consistently held that a quasi-contract action will not lie unless the complaint shows that an action in trover for conversion could be maintained. Simply stated, one cannot waive the tort and sue on a contract implied-in-law unless there was a tort in the first place.”

At the outset, we note that both sides have filed briefs in which the issues are extensively argued, with supporting authorities. A review of these authorities is not required and will unnecessarily lengthen this opinion.

Initially, we agree with defendants that “there is nothing in modern pleading rules which excuses a plaintiff from stating a cause of action by alleging essential facts which if true are sufficient to sustain the cause. There is nothing in the liberal pleading doctrine that requires a defendant to go to trial on a complaint that does not allege facts sufficient for a cause of action,” and “a motion to dismiss may be entertained where the complaint fails to state a cause of action.” Likewise, absence of essential and material allegations in the complaint may properly be raised by a motion to dismiss. Deasey v. City of Chicago, 412 Ill 151, 153-154, 105 NE2d 727 (1952).

Nevertheless, we do not agree that “the conversion and quasi-contract claims of the third amended complaint were barred by allegations of the first three complaints and by plaintiff’s oral judicial admissions.”

We believe the rule to be applied here is set forth in Wright v. Risser, 290 Ill App 576, 8 NE2d 966 (1937), where the court said (p 581):

“The third amended complaint was complete in itself and does not refer to or adopt any portion of either the original complaint or the first or second amended complaints. ‘An amendment which is complete in itself and does not refer to, or adopt, the prior pleading, supersedes it and the original pleading ceases to be a part of the record, being in effect abandoned, or withdrawn, and becomes functus officio, with the result that the subsequent proceedings in the case are to be regarded as based upon the amended pleading, which will not be aided by anything in the prior pleadings, and any ruling of the court with relation to the sufficiency of the original pleadings is not properly in the record.’ 49 CJ 558, sec 773.”

See, also, Bowman v. County of Lake, 29 Ill2d 268, 193 NE2d 833 (1963), where it is said (p 272):

“And while plaintiff now seeks review of both orders of dismissal, our consideration of the first order may be at once eliminated from the appeal. Where an amendment is complete in itself and does not refer to or adopt the prior pleading, the earlier pleading ceases to be a part of the record for most purposes, being in effect abandoned and withdrawn. (Wright v. Risser, 290 Ill App 576; Cantow v. Foute, 335 Ill App 574; see also: Wende v. Chicago City Railway Co., 271 Ill 437; Precision Extrusions, Inc. v. Stewart, 36 Ill App2d 30.) Here, an examination of the two pleadings leaves no doubt that the original complaint was abandoned and withdrawn. Indeed, plaintiff completely changed his form of action in the amended complaint.”

The previous pleadings filed by plaintiff and the alleged remarks of plaintiff’s counsel at the hearing of the motion to dismiss the second amended complaint on March 10, 1966, come within the guidelines set forth in Precision Extrusions, Inc. v. Stewart, 36 Ill App2d 30, 183 NE2d 547 (1962) where it is said (p 50):

“In the trial of the case such withdrawn pleadings may be introduced in evidence and they have no greater or less effect than any other admission offered. . . . Such 'evidential admissions are to be distinguished from judicial admissions. Judicial admissions are not evidence at all, but are formal admissions in the pleadings, or stipulations, oral or written, by a party or his counsel which have the effect of withdrawing a fact from issue and dispensing wholly with the need for proof of the fact. Thus the judicial admission, unless it should be allowed by the court to be withdrawn, is conclusive, whereas the evidential admission is not conclusive (unless the adversary should fail to meet it with contrary evidence) but is always subject to be contradicted or explained.’ McCormick on Evidence, sec 239, p 504.”

The third amended complaint makes no reference to any of the prior complaints and, “for the purposes of the motion attacking it, is neither aided nor impaired by any prior pleading. . . . [T] he disposition of a motion to dismiss must be made upon the allegations contained in the complaint.” (Louis v. Barenfanger, 81 Ill App2d 104, 108, 226 NE2d 85 (1967).) Therefore, we hold that plaintiff’s prior complaints, the colloquy between court and counsel on the previous motions to strike and dismiss, and the alleged judicial admissions made in open court by plaintiff’s counsel cannot be considered by this court in its determination of whether plaintiff’s third amended complaint states a cause of action.

Considered next is the determinative issue here, whether plaintiff’s third amended complaint, standing alone, states a cause of action and “contains such information as reasonably informs” defendants of the nature of the claim they are called upon to meet. Civil Practice Act, § 42.

Recent decisions such as Kita v. Young Men’s Christian Ass’n of Metropolitan Chicago, 47 Ill App2d 409, 198 NE2d 174 (1964), and Miller v. Veterans of Foreign Wars of United States, 56 Ill App2d 343, 206 NE 2d 316 (1965), have stressed that “pleadings shall be liberally construed with a view to doing substantial justice between the parties.” Section 33 (3).

In Kita, the court said (p 425):

“The intent of the Civil Practice Act was to get away from the formality and rigidity of the common law pleading. In Crosby v. Weil, 382 Ill 538, 548, 48 NE2d 386, 391, the court states that ‘It is only-necessary that the allegations state a cause of action.’ The court quotes section 42 of the Civil Practice Act and says further:
“ ‘: . . Under the Civil Practice Act, pleadings are to be liberally construed with the view toward doing substantial justice between the parties and no pleading is to be deemed bad in substance which shall contain such information as shall reasonably inform the opposite party of the nature of the claim. (Frasier v. Finlay, 375 Ill 78.) With the adoption of the Civil Practice Act there has been a definite attempt to abolish the so-called technicalities of common-law pleading .. . .’
“. . . If the courts, by their restrictive interpretation of that Act, again place the rights of the plaintiff and defendant in a legal strait jacket, they are pursuing the path pointed out by Judge Clark. The purpose of the law is to do substantial justice and the courts must exercise restraint in construing a statute which seeks to reach that end.”

A motion to dismiss admits facts well pleaded but not conclusions of law or conclusions of fact unsupported by allegations of specific facts upon which such conclusions rest. Pleadings are construed most strongly against the pleader, but facts well pleaded must be taken as true. (Washington v. Courtesy Motor Sales, Inc., 48 Ill App2d 380, 199 NE2d 263 (1964).) A cause of action should not be dismissed on the pleadings unless it clearly appears that no set of facts can be proved under the pleadings which will entitle plaintiff to recover. 81 Ill App2d 104, 110, 226 NE2d 85 (1967).

After examining the third amended complaint in the light of the foregoing principles, we conclude that Count I of the complaint contains the three essential elements of an action in trover. It states that on or about August 2, 1960, plaintiff was the owner of described building materials valued at $40,000, all of which was located at or near the construction site of a United building at O’Hare Field; that all of the defendants knew the materials belonged to plaintiff, and with the consent and knowledge of the other defendants, Great Lakes used the material in the construction of the United building; that on numerous occasions plaintiff demanded the return of the materials or payment of the reasonable value therefor; and defendants have not returned the materials or paid therefor.

We believe that plaintiff’s allegation that it was the “owner” of the described building materials carried with it the reasonable connotation that plaintiff had the possession or a right to the immediate possession of the building materials at the time of conversion, subsequent to August 2,1960.

As to Count III of the third amended complaint, defendants’ contention that it “did not allege a cause of action in quasi-contract” is premised on the theory that a “quasi-contract action will not lie unless the allegations show that an action in trover for conversion could have been maintained. Briefly stated, one cannot waive the tort and sue on a quasi-contract unless there was a tort in the first place.” As we have found that Count I did state a cause of action in trover, it follows that in our opinion Count III also states a cause of action.

Our conclusion that Counts I and III of the third amended complaint state causes of action render moot at this time defendants’ cross-appeal from the denial of their motion for attorneys’ fees under section 41 of the Civil Practice Act.

For the reasons given, the order striking the third amended complaint and dismissing the action as to all defendants, with prejudice, is reversed, and the cause is remanded for further proceedings consistent with the views expressed herein.

Reversed and remanded with directions.

BURMAN and ADESKO, JJ., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Ronald Morris, Defendant-Appellant.
    Gen. No. 50,855. (Abstract of Decision.)
    First District, Second Division.
    December 19, 1967.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Marshall J. Hartman, Frederick F. Cohn, and James J. Doherty, Assistant Public Defenders, of counsel), for appellant; John J. Stamos, State’s Attorney of Cook County, of Chicago (James B. Zagel and Gino Di Vito, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by JUSTICE BURKE. Not to be published in full.


text:
    Ira Mae Fortee, Plaintiff-Appellee, v. License Appeal Commission of the City of Chicago, A. L. Cronin, Chairman, and Richard J. Daley, Local Liquor Control Commissioner of the City of Chicago, Defendants. Richard J. Daley, Local Liquor Control Commissioner of the City of Chicago, Defendant-Appellant.
    Gen. No. 52,130. (Abstract of Decision.)
    First District, Second Division.
    December 19, 1967.
    Raymond F. Simon, Corporation Counsel, of Chicago (Marvin E. Aspen, Sydney R. Drebin, and Henry N. Novoselsky, Assistant Corporation Counsel, of counsel), for appellant; no appearance in behalf of appellee.
   Opinion by JUSTICE BURKE. Not to be published in full.