text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Walter J. Borak, Defendant-Appellant.
    (No. 72-244;
    Second District —
    August 23, 1973.

      Earl B. Williams, of Williams & Slaughter, of Chicago, for appellant.
    William V. Hopf, State’s Attorney, of Wheaton, (Malcolm F. Smith, Assistant State’s Attorney, of counsel,) for the People.
   Mr. JUSTICE SEIDENFELD

delivered the opinion of the court:

Defendant, Walter J. Borak, was convicted in a bench trial of rape and deviate sexual assault, and was sentenced to 5 to 8 years on each charge, the sentences to run concurrently.

On appeal, defendant contends that the State did not prove beyond a reasonable doubt that he committed the acts complained of, or that the acts were committed by force or threat of force, or against the will of the complainant; and that he was denied a fair trial because a courtroom spectator allegedly informed the excluded witnesses of the testimony being given.

The prosecutrix, a married woman 18 years of age at the time of the acts in question, testified that defendant, a doctor, conducted gynecological examinations on her on two occasions. During the examinations, she laid on an examining table, unclothed from the waist down, with her hips at the end of the table and her feet in stirrups about a foot higher than the table and a foot out from it on either side. She had never before been examined internally.

She testified that during the first examination, conducted on September 22, 1970, defendant asked extremely personal questions about the details of her sexual relationship with her husband, and conducted intimate manipulations of her body for which he gave medical explanations. Defendant breathed heavily, but was not flushed. Defendant ceased his manipulations when she told him they were hurting her. After leaving, prosecutrix did not teH anyone what took place at this examination.

During the second examination, conducted two days after the first, defendant again asked personal questions and manipulated her body. Prosecutrix did not wear a brassiere to this examination. WhHe manipulating his finger in her vagina, defendant asked, “Why don’t you come?” “Why don’t you come with your husband?” Prosecutrix noticed that he was breathing heavy and was flushed. She said she couldn’t get off the table because he was standing right there, and she didn’t ask him to let her up because she was scared and thought he was sexuaUy stimulated. She closed her eyes, as instructed, and felt defendant’s tongue on her vaginal area. She got up on her elbows, but laid back down and closed her eyes when defendant told her to in a voice that was not loud or soft, but “[k]ind of * * * commanding.” About thirty seconds later, she felt his organ enter hers, at which time she sat up quickly and got dressed. After a brief conversation about what she owed defendant, she left. On arriving home, she related the incident to her husband, and the police were caHed.

Prosecutrix testified that she was not tied down or restrained while on the examining table, and could remove her feet from the stirrups. She also stated that defendant had no weapon and never threatened her or used force against her, and that she never cried out for help or used force against defendant.

Prosecutrix’s husband testified that when his wife arrived home from the second examination she was crying and broken up, and that she told him what had occurred. He then called the police and her father.

Sgt. Ronald Garbers of the Lombard PoHce Department testified for the State that he received a caU from the prosecutrix on the evening of September 24, 1970, and could hear that she was sobbing. He stated that when he went to her house, she told him of both acts aHegedly committed by defendant.

Gertrude Borak, defendant’s wife, testified for the defense that she was working in defendant’s office during the prosecutrix’s second examination and that she once entered the room and was seen by prosecutrix. She said after returning to her office, she did not hear voices coming from the examining room. She was not in the examining room while the examination was being conducted, and she did not see the prosecutrix leave.

Defendant does not in his brief contest the act of intercourse on which the rape charge is based, or the act of deviate sexual conduct (touching her organ with his mouth; see Ill. Rev. Stat. 1969, ch. 38, par. 11 — 2) forming the basis of the deviate sexual assault charge. He does, however, raise this issue in oral argument, and we have therefore considered it. We conclude that prosecutrix’s testimony, the credibility of which is for the trial court, and the corroboration provided by her prompt complaint (People v. Murphy (1970), 124 Ill.App.2d 71, 75), are sufficient to establish that the acts complained of were committed.

The more difficult questions before us are whether the act of intercourse was performed “by force and against her will”, as required to sustain a rape conviction (Ill. Rev. Stat. 1969, ch. 38, par. 11 — 1(a)), and whether the act of deviate sexual conduct was “by force or threat of force”, as required to constitute deviate sexual assault (Ill. Rev. Stat. 1969, ch. 38, par. 11 — 3(a)). The committee comments to section 11 — 3, dealing with deviate sexual assault, state that the force required under that section is generally the equivalent of the force required in rape. S.H.A., ch. 38, par. 11 — 3, p. 369.

The general rules as to the degree of force required under our rape statute are stated in People v. Faulisi (1962), 25 Ill.2d 457, 461. It is stated that the degree of force exerted by the defendant and tire amount of resistance on the part of the complaining witness are matters that depend on the facts of the particular case; that resistance is not necessary under circumstances where resistance would be futile and would endanger the life of the female as where the assailant is armed with a deadly weapon, and that proof of physical force is unnecessary if the prosecuting witness was paralyzed by fear or overcome by superior strength of her attacker; that it is, however, fundamental that there must be evidence to show that the act was committed by force and against the will of the female, and if she has the use of her faculties and physical powers, the evidence must show such resistance as will demonstrate that the act was against her will. See also People v. Taylor (1971), 48 Ill.2d 91, 98.

In the case before us, due to the nature of the examination being conducted, defendant was allegedly able to accomplish the acts by surprise, and the necessity for force, as the term is generally used in rape and deviate sexual assault cases, was negated. The question then becomes whether some theory of implied or statutory force can be employed. See Anno 70 A.L.R.2d 824, and later case service.

The State has cited Commonwealth v. Morgan (Pa. 1948), 56 A.2d 275, r.o.g., 58 A.2d 330, and People v. Minkowski (Cal.App. (1962), 23 Cal.Rptr. 92. In both of these cases, doctors penetrating patients by surprise were found guilty of rape. However, in Morgan, no analysis of the force required was made, and in Minkowski the statute, unlike ours, provided that rape is committed “where the female is at the time unconscious of the nature of the act, and this is known to tire accused.”

State v. Atkins (Mo. 1926), 292 S.W. 422 is closely analagous here. There, during a vaginal examination, the woman closed her eyes and covered them with her arms because of embarrassment. She then felt the doctor’s sex organ enter hers, whereupon she jumped out of the chair and pushed him away. The court agreed with defendant that no more physical force was employed by him than is necessarily incident to such an act when done with consent. It noted, however, that a previous Missouri case involving a sleeping woman had held that where the woman does not consent, no more force is required than the force incident to the act, and stated:

“If it is rape under our statutes for a man to have illicit sexual connection with a woman while she is asleep, and incapable of consenting, when no more force is used than is necessary to effect penetration with the consent of the woman, we are unable to see why it is not also rape for a man to have improper sexual connection with a woman by accomplishing penetration through surprise, when she is awake, but utterly unaware of his intention in that regard. In such case the woman is incapable of consenting, because she has no opportunity to give consent any more than has a sleeping woman.
It would indeed be a reproach upon our statute if a physician, under pretense that it was necessary for a woman patient to submit to examination of her sexual organs in order to assist him in the diagnosis of her ailment, and under the pretense that it was necessary for her to expose her person and to assume a position which, at the same time, incidently afforded ready opportunity for sexual attack, could safely take advantage of her position and make an unexpected and uninvited sexual invasion of her person. If, under such circumstances, a physician takes such an unconscionable advantage of the woman’s position, and, to her complete surprise, and without the slightest ground to assume that he has her consent, violates the trust and confidence imposed in him and perverts her position and his opportunity into an uninvited and cowardly attempt to gratify his lust, the force merely incident to penetration should be deemed sufficient force within the meaning of our rape statute. 6 # *” (p. 426)

The Illinois rape statute recognizes that, in certain situations, force can be present where no actual violence is either committed or threatened. It provides that the phrase “by force and against her will” includes, but is not limited to:

“(1) Where the female is unconscious; or
(2) Where the female is so mentally deranged or deficient that she cannot give effective consent to intercourse.” Ill. Rev. Stat. 1969, ch. 38, par. 11 — 1(a).

While no Illinois case has dealt with the force required for allegedly unexpected acts performed by a doctor upon a patient to constitute rape or deviate sexual assault, the issue of force has been discussed in cases involving acts performed upon children under the age of consent.

In People v. Riley (1967), 84 Ill.App,2d 296, the court affirmed a conviction of rape for a nonviolent act of intercourse with a seven-year-old girl, saying that force was inherent in the act. In People v. Garcia (1971), 3 Ill.App.3d 365, 369, the court stated that proof of force was unnecessary to establish deviate sexual assault upon a fifteen-month-old child, because the child was incapable of consenting or resisting. However, in the recent case of People v. Mueller (1973), 54 Ill.2d 189, our Supreme Court reversed a conviction for deviate sexual assault upon a seven-year-old girl, holding that proof of actual force or threat of force was required. The court rejected the state’s argument that a threat of force was implicit due to the disparity of ages and the victim’s legal inability to consent due to her age, and quoted the committee comments to section 11 — 3 to the effect that the statutory scheme contains three approaches to deviate sexual activity; i.e., compelling another to engage in a deviate sexual act (sec. 11 — 3), similar conduct involving children (secs. 11 — 4 and 11 — 5); and public acts of deviate sexual conduct (sec. 11 — 9. S.H.A., ch. 38, par. 11 — 3, p. 369.) The court then stated that this plan reserves imposition of the strict penalty provided in the deviate sexual assault section, as contrasted to the lessened penalty or affirmative defenses provided in the sections relating to acts upon children, to situations involving actual or threatened force.

In contrast, in the case before us and other cases not involving children, the only section in the statutory scheme which deals with nonpublic acts of deviate sexual conduct is section 11 — 3 (deviate sexual assault). A requirement of actual force would, in cases of unexpected sexual attacks, relegate the state to a prosecution for the misdemeanor of battery. It seems clear that section 11 — 1 recognizes that rape can occur where no actual force is used. In light of the committee comment stating that the force requirements contained in the rape and deviate sexual assault statutes are intended to be generally equivalent, we cannot conclude that an unexpected act of intercourse is punishable as rape, but that an act of deviate sexual conduct performed under the same circumstances is punishable only as battery. We therefore conclude that in cases not involving children, “force” in the statutory sense, is present when the victim is incapable of consenting to the sexual act involved because she has been given no opportunity to consent. Force is thus implied when the rape or deviate sexual acts proscribed by statute are accomplished under the pretext of medical treatment when the victim is surprised, and unaware of the intention involved.

In the case before us, even if the prosecutrix realized that defendant’s questions were improper, this would not in itself indicate what was to follow. While defendant’s appearance indicated to prosecutrix that he was sexuaHy aroused, he had not performed any actions which she knew to be improper, and prosecutrix was not put on notice that defendant would perform an overt, deviate act upon her body. Defendant’s act of deviate sexual conduct was, in the language of Atkins ((Mo. 1926), 292 S.W. 422), “through surprise”, with prosecutrix being “utterly unaware of his intention in that regard.” Prosecutrix was therefore incapable of consenting to the act, and “statutory” force was present.

However, the contrary is true as to the act of intercourse. When defendant put his mouth on prosecutrix’s organ, she became aware of his intentions, and nothing he did thereafter could come as a surprise. It then became her duty, under the previously stated general rules of force applicable to rape cases (People v. Faulisi (1962), 25 Ill.2d 457, 461), to use resistance to prevent further acts. Yet she faded to object and followed defendant’s instruction to lay back down and close her eyes. While prosecutrix points to her testimony that the instruction was given in a commanding voice, and that she was scared because of his appearance, the evidence does not show that she was restrained in any way, or that defendant used any actual force or threat of force upon her. We cannot conclude that prosecutrix was paralyzed by fear or overcome by defendant’s superior strength. Her failure to resist when it was within her power to do so amounts to consent, and removes from the act an essential element of the crime of rape. (See People v. Keeney (1973), 10 Ill.App.3d 296, 300.) We therefore reverse defendant’s rape conviction.

We consider defendant’s final contention, that he was denied a fair trial because a courtroom spectator allegedly informed the excluded witnesses of the testimony being given, as it affects the deviate sexual assault conviction. Defense counsel called this aHeged impropriety to the court’s attention after the defense concluded its case, telling the court that he had been informed of these actions by the defendant’s wife. The prosecutor said that when informed of tins, he asked the spectator about it, and she said she had not told the people anything said in the courtroom. The prosecutor then stated that he had no objection to defense counsel’s inquiry of the woman. Defense counsel replied that he was not asking for a mistrial or new trial, but that he was only laying the groundwork for a later motion for a new trial should he find from any of the witnesses what the womans conduct was. No motion for a new trial or mistrial on this basis was ever made.

The general rule is that the failure by a defendant to raise an issue in the written motion for a new trial constitutes waiver of that issue, and it cannot be urged as a ground for reversal on review. (People v. Pickett (1973), 54 Ill.2d 280, 282.) It is further the rule that where parties in a criminal case knowingly and deliberately turn down the course of procedure which at the time appears to be in their best interest, they cannot, after decision has been rendered adverse to them, obtain retrial according to the procedure which they voluntarily discarded and waived. United States v. Cook (7th Cir., 1970), 432 F.2d 1093, 1101, cert. den. 401 U.S. 996, 28 L.Ed.2d 535, 91 S.Ct. 1224.

Defendant not only did not raise this issue in a post-trial motion, but rejected the opportunity for a hearing on the issue when it was offered to him. The court had nothing but hearsay information as to the woman’s behavior, and was under no duty to conduct a hearing when told that the defense did not desire one.

The judgment of conviction for deviate sexual assault is affirmed. The judgment of conviction for rape is reversed.

Affirmed in part and reversed in part

GUILD, P. J., and DIXON, J., concur.


source: Caselaw Access Project

author: Mr. JUSTICE SEIDENFELD

license: Public Domain

text:
    Household Finance Corporation, Plaintiff-Appellee, v. Willard Mowdy et al., Defendants-Appellants.
    (No. 72-234;
    Second District —
    August 27, 1973.

      David F. Smith, of Loves Park, for appellants.
    Thomas D. Chase, of Elgin, for appellee.
   Mr. JUSTICE SEIDENFELD

delivered the opinion of the court:

Plaintiff, Household Finance Corporation (HFC), recovered a judgment of $3511.58 plus costs on a promissory note contained in a retail installment sales contract for a swimming pool. HFC had purchased the contract from Diversified Industries, Inc. (Diversified), the seller of the pool, and not a party to this action. The buyers, Willard and Mary Mowdy, denied the debt, asserted defenses against the contract, and counterclaimed for a $500 down payment paid to Diversified. They now appeal the decision of the trial court finding HFC a holder in due course immune from defendants’ claims and defenses against Diversified.

Defendants maintain they have valid defenses against Diversified in that Diversified fraudulently induced them to purchase a swimming pool through false advertising and an unlawful sales technique; and that Diversified breached its express guarantee in various respects. Defendants further contend that they had the right, under the Uniform Commercial Code, to revoke their acceptance of the pool and recover so much of the price ($500) as had been paid. Finally, defendants contend, based on section 2D of the Consumer Fraud Act (Ill. Rev. Stat. 1971, ch. 121%, par. 262D), that HFC is chargeable with the defenses and rights of action which could be asserted against the seller, Diversified.

Plaintiff relies on its status as a holder in due course, and contends that section 2D of the Consumer Fraud Act was satisfied by a notice provision in the contract. Further, HFC claims that evidence showing fraudulent inducement was based on inadmissible hearsay.

Because of the view we take of the case, a detailed summary of the evidence is unnecessary. It is conceded that the obligation contained in the installment contract here in question is negotiable; and it is undisputed that HFC took the note for value and in good faith without notice of any claim or defense at the time the note and contract were assigned to HFC.

A financial institution is a holder in due course if it takes a negotiable note for value in good faith without notice of a claim or defense and before it is due. (Ill. Rev. Stat. 1971, ch. 26, par. 3 — 302 (hereinafter UCC).) A holder in due course is entitled to the rights specified in UCC § 3 — 305. Specifically the holder takes the instrument free from the defenses that the buyer may assert against the seller-assignor except the so-called real defenses (e.g., infancy, illegality, fraud in the execution, bankruptcy).

However, the buyers contend that the assigned contract and note failed to comply with the notice requirement of section 2D of the Consumer Fraud Act (Ill. Rev. Stat. 1971, ch. 121, par. 262D), so that they may assert against HFC any defenses and claims they have against Diversified, the seller.

Section 2D pertinently provides:

“If a consumer in a retail installment sales transaction gives the seller a negotiable instrument in part or full payment for the merchandise which is the subject of a purchase order, retail charge agreement or retail installment sales contract before that merchandise is delivered or furnished to him, the assignment of that agreement or contract or the transfer of that negotiable instrument does not bar that consumer from asserting against the assignee or transferee any defense or right of action he may have against the seller unless (1) the contract or agreement contains, in at least 10-point bold type, the following notice:
‘NOTICE TO BUYER
You have the right to give the assignee named (or if no assignee is named, to give the seller) written notice of any defense or right of action which you may have against the seller within 5 days of delivery of the merchandise described herein. If a notice is not received within that time, you may not assert such defense or right of action against the assignee.’; and (2) such a notice is not given within the time period stated. Notice is received within the meaning of this Section if the seller or assignee has refused to accept delivery by certified or registered mail of such a notice,”

HFC relies upon a notice contained in the contract which provides that the buyer may cancel the agreement if it has been signed at a place other than the sellers place of business by giving a notice within three days after the signing of the agreement. However, this notice is pursuant to another statute (Ill. Rev. Stat. 1971, ch. 121½, par. 262B), is designed for a different purpose, and does not fulfill the requirements of section 2D.

Section 2D is unequivocal in its requirement. The statute is designed to combat a specific evil and is remediable in nature. It therefore should be liberally construed to effect its purpose of providing aggrieved buyers in explicit terms a method whereby they may communicate their complaints following delivery of purchased merchandise so as to preserve their claims and defenses against an assignee to whom payments will have to be made. Assuming that defendants did not advise HFC of possible defenses within a reasonable time by waiting 60 days following installation before giving written notice of cancellation, such fact would not obviate the requirement of inserting proper notice in the contract so that defendants would be informed of their rights under the Consumer Fraud Act.

While we hold that section 2D of the Consumer Fraud Act was not complied with in the installment contract assigned to HFC, we must also consider whether or not an express or implied clause in the contract which in substance purports to waive the buyer’s defenses and claims against the assignee, HFC, even though they did not receive the notice required under section 2D.

UCC §9 — 206(1) makes waiver of defense clauses valid subject to any statute or decision which establishes a different rule. Section 17 of the Retail Installment Sales Act (Ill. Rev. Stat. 1971, ch. 121%, par. 517) specifically validates agreements between buyer and seller not to assert against the assignee of retail installment contracts who takes for value, in good faith and without notice of defenses, any claim or defense the buyer may have against the seller.

® 5 Whether the language of paragraph four on the reverse side of the contract stating, “Assignee shall not be chargeable with any obligations or liabilities of seller” operates to waive the buyers’ right to assert defenses against HFC need not be decided here. Even in the absence of an express waiver clause UCC § 9 — 206(1) implies an agreement not to assert defenses, if as part of one transaction, the buyer signs both a negotiable instrument and security agreement. (UCC §9 — 206, Official Comment 1; 2 Bender’s UCC Service (Coogan, Hogan, Vagts 1973) par. 28.03; 5A Bender’s UCC Service (Hart & Willier 1973) par. 92,43.) The implied waiver would thus operate in the transaction before us, unless there is an overriding consideration of public policy as expressed in section 2D of the Consumer Fraud Act.

We have held, prior to the enactment of section 2D, that a contractual waiver of certain defenses, such as are involved here, will be given effect, regardless of whether a negotiable note is taken in connection with the installment contract sale. (First Nat. Bank of Elgin v. Husted (1965), 57 Ill.App.2d 227, 232-234.) However, giving primacy to a waiver of defense clause would circumvent the remedy provided in section 2D so that dissatisfied consumer-buyers would not be able to preserve their claims and defenses against assignees to whom payments will have to be made. To avoid the operation of section 2D sellers would need merely to insert a waiver clause in their form contracts, which the average consumer-buyer may not read or understand. (See Geiger Finance Co. v. Graham (Ga. App. 1971), 182 S.E.2d 521, 523; Warren, 1956 U.Ill. L.F. 531, 543.) The circumvention becomes even more blatant, when, as in the instant case, the waiver of defense clause is implied by UCC § 9— 206(1) without need for mention of it in the contract itself.

Second, the use of a waiver of defense clause has the effect of imparting the attributes of negotiability to an otherwise nonnegotiable document. (Fairfield Credit Corp. v. Donnelly (Conn. 1969), 264 A.2d 547, 550; American Nat. Bank v. A. G. Sommerville, Inc. (Cal. 1923), 216 P. 376, 378; Geiger Finance Co. v. Graham (Ga. App. 1971), 182 S.E.2d 521, 524.) In transactions in which either a negotiable note or a contract containing a waiver of defense clause evidences the buyer’s obligation, the practical effect on the buyer is much the same. He is deprived of his ability to assert defenses he has on the contract against the seller’s assignee. Thus the reasons for enacting section 2D to apply in consumer installment transactions in which a negotiable instrument is taken in payment are equally applicable to contracts which contain a waiver of defense clause, express or implied.

We therefore hold the waiver of defense, clause implied in the instant installment contract does not nullify the requirements of section 2D. By our holding, the validity of waiver of defense clauses allowed by statute (Ill. Rev. Stat. 1971, ch. 121½, par. 517) is not destroyed, but only limited as is required by section 2D of the Consumer Fraud Act. If the notice provision as specified is complied with, and no claims or defenses are brought to the sellers or assignee’s attention within the time and in the manner designated, then a waiver of defense clause would be effective to cut off later claims or defenses the buyer might seek to assert against an assignee.

We therefore conclude that the trial court erred in holding that the plaintiff took the contract free of defenses defendants may have had against the original seller. Since the trial court did not pass upon the sufficiency of defendants’ grounds for relief, the extent of the damage, if any, or the appropriateness of rescission or revocation of acceptance, the case will be remanded. To aid the court on remand we will briefly discuss two further issues that are raised by the parties.

On the ground of hearsay, HFC objected to the introduction by defendants of certain statements made to them by a representative of Diversified which tended to show Diversified fraudulently induced the sale through “bait” advertising. (See Ill. Rev. Stat. 1971, ch. 121½, pars. 157.21(b), 262, 312(9).) The rule is long established that declarations against interest or admissions made before transfer by an assignor of a chose in action are admissible against the assignee to establish assertible claims and defenses. (Anderson v. Brewing Co. (1898), 173 Ill. 213, 216-217; First Nat. Bank of Monmouth v. Strang (1891), 138 Ill. 347, 354-355; Hanchett v. Kimbark (1886), 118 Ill. 121, 129-130; Williams v. Judy (1846), 8 ( 3 Gilm.) Ill. 282, 284-285.) Since we have held that defendants may assert against HFC any defenses or right of actions they may have against Diversified, the offered testimony should have been accepted.

The second issue which might have to be considered on remand if any of defendants’ claims or defenses are sustained is whether section 2D authorizes recovery from HFC of moneys paid to Diversified as down payment before the assignment. Defendants rely on the language of section 2D which states that “any defense or right of action” that the consumer has against the seller may be asserted against the assignee if the required notice to buyer is not inserted in the contract. Plaintiff argues that such an operation of section 2D would be inequitable.

We believe the buyer’s ability to assert “rights of action” against the assignee provided by section 2D is limited by the amount of the debt assigned as indicated by the negotiable instrument or instruments taken by the assignee. The statute is designed only to operate in the context of an assignment of a negotiable instrument which was given as payment by a consumer on a retail installment sales contract. As such it is really the debt assigned which is subject to the buyer’s defenses and rights of action, although it is against the assignee who holds the instrument acknowledging the debt that the buyer must assert his claims. In no case, therefore, should the assignee’s liability exceed the amount owed to him.

Moreover, in our view, the rights of the buyers in the instant case under section 2D are similar to those provided buyers by virtue of UCC § 3 — 306, which describes the rights of one not a holder in due course. A reasonable reading of UCC § 3 — 306 indicates the buyer’s rights against the holder are limited by the amount of the note or instrument transferred. Thus the authority of buyers to assert defenses and rights of action should be construed as a right to set off these claims against the assignee’s right to collect on the note he is holding. Such a construction of section 2D is in accord with the law generally regarding assignments of contract rights. See Restatement, Contracts sec. 167; 4 Corbin on Contracts, sec. 895, n. 16 (1971 Supp.)

Our interpretation of section 2D limiting the assignee’s liability to amounts owing to him on the assignment is reinforced by the use of the identical words “any defense or right of action” in the statute in the quoted notice to buyer that must be given. If we were to hold that such language allowed affirmative liability to be assessed, assignees could be liable for amounts paid to the seller-assignor even though the contract contained the required notice to buyer in proper form. The imposition of such affirmative liability upon an assignee who has dealt in good faith with the assignor and has given value without notice of any defects at the time of the assignment would be a startling departure from prior law. In the absence of a clear expression of legislative intent, we would decline to adopt such an interpretation of section 2D.

The cause is reversed and remanded for further proceedings consistent with this opinion.

Reversed and remanded with directions.

GUILD, P. J., and DIXON, J., concur.

       Similar language has been held insufficient to constitute a waiver of defenses.1 See Noblett v. General Electric Credit Corp. (10th Cir. 1968), 400 F.2d 442.

       The installment sales contract retains title to the pool in the seller or asignee until the buyers complete their payment obligations. Thus the contract creates a security interest. UCC § 1 — 201(37); UCC § 9 — 102.

       “3 — 306. Rights of One Not a Holder in Due Course. Unless he has the rights of a holder in due course any person takes the instrument subject to

      (a) all valid claims to it on the part of any person; and
      (b) all defenses of any party which would be available in an action on a simple contract; and
      (c) the defenses of want or failure of consideration, non-performance of any condition precedent, non-delivery, or delivery for a special purpose (Section 3 — 408); and
      (d) the defense that he or a person through whom he holds the instrument acquired it by theft, or that payment or satisfaction to such holder would be inconsistent with the terms of a restrictive indorsement. The claim of any third person to the instrument is not otherwise available as a defense to any party liable thereon unless the third person himself defends the action for such party.” (Emphasis added.)


author: Mr. PRESIDING JUSTICE SCOTT

text:
    Catherine L. Edenburn, Admr., of the Estate of Ruby M. Mendenhall, et al., Plaintiffs-Appellants, v. William Riggins, d/b/a Bill's et al., Defendants-Appellees.
    (No. 72-171;
    Third District —
    August 24, 1973.

      Rehearing denied September 20, 1973.

      Heyl, Royster, Voelker and Allen, of Peoria, (Carle E. Reardon, of counsel,) for appellants.
    Robert L. Ellison and Duncan B. Cooper, III, of Rock Island, for appelles.
   Mr. PRESIDING JUSTICE SCOTT

delivered the opinion of the court:

This appeal results from a dram shop action brought in the circuit court of Peoria County by two separate plaintiffs in two separate counts to recover damages for four minor children for loss of means of support which had been provided by two different persons. After trial by jury a single general verdict in the sum of $40,500 was returned in favor of the plaintiffs and judgment was entered accordingly. The trial court subsequently granted a motion to reduce the damages to the sum of $20,000 and ordered a new judgment in that amount. This appeal stems from the trial court’s order reducing the amount of damages. The defendants in this appeal also allege error on the part of the trial court and present issues for review.

The factual situation which gave rise to this appeal is pertinent to some of the issues presented to this court and we therefore set forth the same in detaff.

Ronald Mendenhall and Ruby Bee were married on November 19, 1967. At the time of the marriage Ruby had four children by a previous marriage, their names being Erma, Rebecca, Kenneth and Ronald Bee. It is admitted by Ronald that the youngest child might be his own.

The mother Ruby had worked as a nurses aid in a Peoria hospital for ten or eleven years and continued in such employment after the marriage until the family moved to Cuba, Illinois. In 1967 Ruby received wages in the sum of $2,971.88 and in 1968 before moving to Cuba she earned $2,061.60.

The husband Ronald is illiterate and his employment was as a gasoline service station attendant in Cuba where he earned $70 per week. In addition to this job he had additional income which he earned from topping trees, painting television towers and repairing television sets. On occasion he would earn from $200 to $300 per day. It was Ronald’s custom to turn over his income to Ruby to pay the bills and care for the chüdren.

From the record it appears that it was approximately four months after the family had moved to Cuba that tragedy ensued when Ronald killed Ruby by shooting her after a day of drinking various alcoholic beverages. A more detailed itemization of Ronald’s drinking which culminated with the death of Ruby will be recited as it becomes pertinent to the issues presented in this appeal. Ronald pleaded guilty to the charge of involuntary manslaughter and was sentenced to a term of not less than two nor more than five years in the penitentiary. After Ruby’s death Ronald did not provide for the support of her children. Catherine L. Edenburn, the plaintiff, was appointed as guardian of the deceased Ruby’s children, who at the time of the trial were of the following ages: Ronald, 5; Kenneth, 7; Rebecca, 8; and Erma, 12.

The complaint filed in the case before us contained two counts and was commenced pursuant to the provisions of the Dram Shop Act (Ill. Rev. Stat., ch. 43, sec. 135). Count I was brought in the name of the plaintiff as administrator of the estate of Ruby M. Mendenhall, deceased, for the exclusive benefit of the deceased’s minor children. The plaintiff alleged that the minor children had lost a means of support, namely their mother, in that she had been killed by an intoxicated person and this count prayed for damages in the sum of $20,000. Count II was originally brought by Ronald Mendenhall and alleged that the children had lost a means of support from himself as a stepfather in that he had been incarcerated in consequence of the actions of an intoxicated person, namely himself. This count also prayed for damages in the sum of $20,000. For reasons which we do not deem to be material to this appeal, Count II was dismissed and an amended complaint was filed which substituted the plaintiff as guardian of the children instead of Ronald Mendenhall in Count II. The complaint then contained the original Count I and the new Count II, and the case proceeded to trial by jury. As previously stated the jury returned a single general verdict in favor of the plaintiff and against the defendants Riggins’ and Beneventi’s in the sum of $40,500.00.

It is the contention of the plaintiff that the trial court erred when it granted defendants’ motion to reduce the jury’s verdict and the judgment entered thereon from the sum of $40,500 to $20,000. In making a determination of this question we first direct our attention to the pertinent language of the Dram Shop Act:

“* * * recovery under this Act for loss of means of support resulting from the death or injury of any person, as aforesaid, shall not exced $15,000 for each person so injured where such injury occurred prior to July 1, 1956, and not exceding $20,000 for each person so injured after July 1, 1956. * * * Ill. Rev. Stat., ch. 43, sec. 135.

The precise question presented is whether the statutory provision which we have set forth means that recovery for loss of support resulting from death or injury of any person shall not exceed $20,000 for each person so injured refers to the person furnishing the support or does it refer to the persons losing their means of support. This question was settled by our Supreme Court in the case of Moran v. Katsinas, 16 Ill.2d 169, 157 N.E.2d 38. Moran determined the legislative intent to be that the statutory limitation of recovery set forth in section 135 of the Dram Shop Act referred to the “provider” of support and not to the person or persons losing their support.

In the instant case the minor children lost two “providers of support”. One “provider” was their mother Ruby Mendenhall, who up until approximately four months prior to her death worked more than ten years as a nurses aid at a Peoria hospital and the other was their stepfather Ronald Mendenhall, who as we have stated worked at various jobs and gave his earnings to his wife to care for the children. In applying the statutory limitation on damages recoverable in this case we look at the language which states “that * * * recovery * * * for loss of means of support resulting from death or injury of any person # * shall not exceed * * * $20,000 for each person so injured.” (Ill. Rev. Stat., ch. 43, sec. 135). The controlling phrase is for each person so injured and in Moran that person was defined as the “provider” of the support. As we have stated the minor children involved in the case now before us had two “providers” hence their limitation of recovery is $20,000 per “provider” or a total of $40,000. We deem it to be immaterial in that in the present case those who lost their support from Ruby Mendenhall and Ronald Mendenhall are the same individuals, namely the minor children Erma, Rebecca, Kenneth and Ronald Bee. There can well be a single occurrence which causes injury or death to more than one “provider” of the same dependents. See St. Clair v. Douvas, 24 Ill.App.2d 444, 158 N.E.2d 642; Kelly v. Hughes, 33 Ill.App.2d 314, 179 N.E.2d 273.

That a single general verdict was returned by the jury rather than separate verdicts on Counts I and II creates an ambiguity in that it is not clear whether the award was based on Count I, Count II, or on both counts. However, this is an ambiguity created by the defendants. The plaintiffs tendered instruction 16 which could have instructed the jury to return separate verdicts on each count and which further provided them a form for their use. The defendants objected to this instruction since they desired a general single verdict, this is what they received and therefore they are estopped from now claiming that it constitutes error. The plaintiffs’ assertion that the defendants cannot complain of an error which they have induced the trial court to make is well taken. City of Waukegan v. Stanczak, 6 Ill.2d 594, 129 N.E.2d 751.

The defendants assign as reversible error that the jury was improperly instructed and the crux of this contention is that Illinois Pattern Jury Instruction 150.15 is an inappropriate instruction in the instant case. I.P.I. 150.15 defines intoxication in the following manner:

“A person is ‘intoxicated’ when as a result of drinking alcoholic liquor there is an impairment of his mental or physical faculties so as to diminish his ability to think and act with ordinary care.”

The defendants concede that in Navarro v. Lerman, 48 Ill.App.2d 27, 198 N.E.2d 159, the reviewing comt held it proper to give an instruction defining intoxication in a dram shop case. They further recognize that it was held error not to give I.P.I. 150.15 in Grant v. Paluch, 61 Ill.App. 2d 247, 210 N.E.2d 35. However, the defendants argue that the giving of I.P.I. 150.15 constituted error in the instant case since such instruction establishes a standard of “ordinary care” which under the facts adduced by the trial court is not sufficient but that instead an instruction defining intoxication should have been in terms of an inability to conform one’s conduct to the requirements of the law, or an inability to refrain from acting recklessly, wilfully or intentionally. We believe that the case of Navarro is determinative of this question since it was also a case involving criminal conduct on the part of an intoxicated person, and the reviewing court held that it was proper to give instruction I.P.I. 150.15 for the purpose of defining intoxication. While it was the shooting and subsequent incarceration of Ronald that caused a deprivation of support it must be recognized that these events were proximately caused by his intoxication which is the gist of a dram shop action and hence the jury was properly instructed.

The defendants next urge that the verdict of the jury was against the manifest weight of the evidence. Without making a detailed recital of the facts it is clear from the record that Ronald had been drinking almost continuously from the early afternoon hours of December 7, 1968, to the early morning hours of December 8th when he killed his wife. There was evidence that he became ill and vomited, that he drove the wrong way on a one-way street, that his behaviour was unusual. There was testimony by the defendants and their former bartender as well as testimony of police officers that took Ronald into custody that he was not intoxicated. Ronald himself testified that he was drunk, he stated that “I was drinking all the time.” It is clear that there was a conflict of evidence as to whether or not Ronald was intoxicated, but in determining the credibility of the witnesses the testimony of each should be weighed as to possible advantage or disadvantage. It could well be that the trauma connected with the slaying of one’s wife would also have a sobering effect so that when taken into custody the slayer would be in a sober condition. These are questions for the jury. (See People v. Schneider, 362 Ill. 478, 200 N.E. 321.) The jury determined that Ronald was in fact intoxicated and from the record it is clear that they had presented to them ample evidence to support such a determination and we will not disturb it.

The defendants would argue that the plaintiffs failed to show a causal connection between the intoxication of Ronald and his shooting his wife. It is only where the cause of injury or death would have occurred regardless of intoxication that it can be held as a matter of law the intoxication is not the proximate cause. (Schwehr v. Badalamenti, 14 Ill.App.2d 128, 143 N.E.2d 558.) In the case before us it is irrefutable that Ronald kiUed his wife. There is sufficient evidence to sustain a finding that he was intoxicated and there is no reason to believe that he would have lolled her had he not been intoxicated. The circumstances are sufficiently persuasive to make the question of “causal connection” one for the jury and the jury was instructed on this matter. Again we wiU not invade the province of the jury which determined from ample evidence that intoxication was the proximate cause of the shooting.

The defendants also contend that there was no competent evidence to substantiate a claim of loss of support by the minor children from their mother. The Dram Shop Act is to be liberally construed to the end that the health, safety and welfare of the people of the State of Illinois shall be protected. (Ill. Rev. Stat., ch. 43, sec. 94.) The childrens mother Ruby had long supported her children by working at a hospital. This employment continued until approximately four months prior to her death. Means of support includes not only the necessities of life but also the comforts of life as well as the capacity for earning money. We would be denying a liberal construction of the Dram Shop Act if we were to hold that there was not competent evidence to sustain a finding of loss of support by the children when their mother was slain. The amount of the mother’s income for the years 1967 and 1968 was admitted into evidence and provided an adequate basis for estimating damages.

Contrary to the contention of the defendants we believe that the evidence also sustains a loss of means of support to the children from their stepfather Ronald. While not legally obligated to support the children, Ronald had nevertheless done so. He made voluntary contributions from his earnings as a service station employee, tree topper, painter and television repairman. Loss of means of support includes loss of income which results from the termination of voluntary contributions. (Lowrey v. Malkowski, 23 Ill.App.2d 371, 163 N.E.2d 528.) We do not deem it material that Ronald, now free from incarceration and remarried, could still support the minor children as he did prior to the death of their mother. He has chosen not to do so and they have' therefore suffered a loss of means of support, and as has been previously determined such loss was occasioned in the first instance by Ronald’s intoxication.

The defendants further argue that as the result of a plaintiffs’ ins truetion the case was not submitted to the jury on the basis of loss of means of support resulting from Ronald’s incarceration in the penitentiary even though that was the posture of the pleading, and therefore the cases went to the jury only on the theory of the loss occasioned by the death of Ruby. Defendants urge that since the only loss of means of support submitted to the jury related to Ruby’s death then it must be presumed that the jury followed the instructions given and that the trial court was therefore required to reduce the verdict to the sum of $20,000.

We cannot concur with this contention of the defendant since the record in this case makes it abundantly clear that it was not the incarceration of Ronald that caused the loss of support to the minor children. His incarceration stemmed from his criminal conduct which was caused by his intoxication. It was Ronald’s intoxication, not his incarceration, which led to the destruction of the family unit with the resultant effect that the minor children suffered a loss of support from both their mother Ruby and their step-father Ronald. The jury was aware that the trial was proceeding on two counts and in both the opening and closing arguments to the jury, counsel for plaintiff made it clear that loss of support was claimed from both Ruby and Ronald. In considering instructions, the test is not whether each individual instruction is free of every technical objection which may be directed against it but rather whether the instructions when considered together were sufficiently clear so as not to mislead the jury. (Robinson v. Workman, 15 Ill.App.2d 25, 145 N.E.2d 265.) After examining the record in its entirety we fail to find any basis to support a conclusion that the jury was misled and therefore do not agree with the defendants’ contention as to the significance of the plaintiffs’ instruction on Count II of the complaint.

Lastly the defendants present for review a question of Iegislative interpretation in that they contend that the trial court erred in faffing to give retroactive application to a 1971 amendment to the Dram Shop Act. At the time the plaintiffs filed their lawsuit the Dram Shop Act gave a remedy to innocent persons against tavern keepers who by seHing or giving alcohohc liquor caused intoxication in whole or in part (emphasis supplied). Effective August 1, 1971, the Dram Shop Act was amended so that the provisions pertinent to issue now before us reads as foHows:

“Every person who is injured in person or property by any intoxicated person, has a right of action in his own name, severally or jointly, against any person who by selling or giving alcoholic Hquor, causes the intoxication of such person. * * * An action shaU He for injuries to means of support caused by an intoxicated person or in consequence of the intoxication, habitual or otherwise, of any person resulting as aforesaid.” IU. Rev. Stat., ch. 43, sec. 135.

The effect of this amendment removed the words “in whole or in part” so that thereafter liability was to be imposed only upon the person who caused the intoxication rather than on any person who contributed to such a condition. The instant lawsuit was tried after the effective date of the 1971 amendment which eliminated the phrase “in whole or in part” and the defendants are of the opinion that the amendment should have been given retroactive effect by the trial court. In support of their position they rely on the holding in Orlicki v. McCarthy, 4 Ill.2d 342, 122 N.E.2d 513, where our supreme court held an amendment to the Dram Shop Act retroactive which reduced the statutory limitation during which time a suit could be filed. In Orlicki the supreme court stated, “On the basis of the foregoing authorities it is our judgment that the time limitation amendment should be retroactively applied on the ground that the legislature so intended, and that it is procedural in character.” (Emphasis supplied.) In Orlicki the supreme court recognized that the amendment in question was one dealing with a procedural matter. Amendments pertaining to procedure can and are frequently given retroactive application as was done in Orlicki. See Ogdon v. Gianakos, 415 Ill. 591, 114 N.E.2d 686. In the instant case we are confronted with an amendment that is substantive in character in that it pertains to that part of the law which creates, defines and regulates rights as opposed to law which prescribes methods or procedures to be followed in enforcing those rights. Since the 1971 amendment to the Dram Shop Act is of a substantive nature a retroactive application will be given to it only when it is manifest that the legislature intended that it should so operate. In Orlicki our supreme court determined that it was the intent of the legislature that the amendment relating to the statute of limitations should be given retroactive application since its purpose was to correct an existing evil, to wit, the prolonged liability of unsuspecting dram shop owners. In the case before us the 1971 amendment can only be interpreted as being a deterrent to that dram shop owner who would continue to ply a customer with liquor until he became intoxicated since under the Dram Shop Act prior to the amendment he was exposed to liability whether he served one or many drinks to such an individual. Giving retroactive application to the 1971 amendment would have no effect on curing such evils of the type described which occurred prior to the amendment’s adoption. Such evils were fait accompli and could not be undone by a retroactive application of a legislative enactment. We find it impossible to locate any intent on the part of our legislature to give the 1971 amendment to tibe Dram Shop Act retroactive application as urged by the defendants.

The plaintiffs in their brief acknowledge that the maximum which they can recover in this case under the provisions of the Dram Shop Act is the sum of $40,000 and request that this court remand this case to the trial court with directions to enter a judgment in the amount of $40,000 rather than in the sum of $40,500 as returned by the jury. We agree with the plaintiffs that the maximum recovery in this case cannot exceed $40,000.

For the foregoing reasons the verdict of the jury in this case finding the defendants liable under the Dram Shop Act should be sustained and the order of the trial court reducing the amount of the judgment to $20,000 should be reversed and this cause, is remanded with directions that the circuit court of Peoria County enter a judgment for the plaintiffs arid against the defendants in the sum of $40,000.

Affirmed in part and reversed in part and remanded with directions.

STOUDER and DIXON, JJ., concur.


author: Mr. JUSTICE SCOTT

text:
    Grundy County National Bank, Plaintiff-Appellee, v. Beth F. Westfall, Defendant-Appellant.
    (No. 72-305;
    Third District —
    August 24, 1973.

      Rehearing denied September 20,1973.

      Thomas B. Dunn, of Morris, for appellant.
    August Black, of Morris, for appellee.
   Mr. JUSTICE SCOTT

delivered the opinion of the court:

This is an appeal from a judgment of the circuit court of Grundy County granting a motion of the Grundy County National Bank, plaintiff, for summary judgment in action on a guaranty agreement signed by Beth F. Westfall, the defendant, which was to guarantee the notes of her husband payable to the plaintiff.

As it appears from the record, prior to 1963 John Westfall and Beth, his wife, the defendant in this action, carried on a farm enterprise in Grundy County. The farm was leased from the defendant’s mother who had a life estate therein, the remainder going to the defendant. Receipts from the farm were deposited in a joint account in plaintiff bank and prior to 1963 the defendant had made occasional withdrawals for farm purposes and had joined with her husband in borrowing money from the plaintiff. On October 21, 1963, at the request of her husband the plaintiff signed a loan guaranty agreement which was delivered by her husband to the plaintiff bank. Thereafter the plaintiff made loans to him represented by judgment notes in the amount of $46,226.51. It is undisputed that the defendant signed a printed form of loan guaranty agreement as well as it is undisputed that the blanks on the form were not filled in either at the time she signed it, delivered it to her husband or when it was received by the plaintiff bank. The unfilled blanks included the date, the name of the debtor, the name of the bank, and the limitation of the extent of liability assumed. The blanks were later filled in and the form completed by bank officials in October, 1967. We believe that it should be noted that the guaranty agreement signed by the defendant was in the nature of a cross agreement in that at the same time her husband John B. Westfall signed a similar agreement in which he guaranteed the defendant’s credit to the extent of $50,000 and that this agreement form when signed contained this figure and all other blanks were filled with the requisite information.

The subject matter of this case has previously been before this court in Grundy County National Bank v. Westfall, 125 Ill.App.2d 254, 260 N.E.2d 745, from which decision an appeal was taken to our supreme court which ruled that the warrant to confess judgment was void for the reason “the extent of liability can be ascertained only by evidence dehors the instrument granting the power to confess judgment.” (Grundy County National Bank v. Westfall, 49 Ill.2d 498, 275 N.E.2d 374.) The case was remanded to the trial court for further proceedings for judgment. As we have stated the plaintiff bank filed a motion for summary judgment supported by affidavits and attached exhibits. Evidence as to the extent of liability on the loan guaranty agreement was introduced, none of which was challenged by the defendant. The trial court entered a decree granting plaintiff’s motion for summary judgment in the sum of $26,289.14 which included interest from June 28, 1972 together with costs of suit. The decree also denied the defendant’s motion for summary judgment as well as a motion to strike a portion of the plaintiff’s complaint. This appeal stems from the orders of the trial court contained in the decree.

We are first confronted with the issue as to whether there was any triable issue on the loan guaranty signed by the defendant on the basis of the evidence adduced as weH as the admissions of the defendant.

The defendant in answering the amended complaint of the plaintiff admitted that on Octobei>.¿21, 1963 she executed a loan guaranty agreement, but that the name of the debtor on the agreement was blank, yet she knew it to be her husband, John B. Westfall. She also aUeged that the name of the bank was left blank in the agreement but it was known to her that the bank involved was the plaintiff Grundy National Bank of Morris, IHinois. In regard to the blank space in the agreement relative to. the amount of the guarantee the defendant admitted in her answer that she intended to guarantee the plaintiff only to the extent of $20,000, which sum has been repaid.

From these admissions it is obvious that the defendant admitted the guaranty agreement to be valid but that liabüity was limited to the sum of $20,000.

The trial court in considering the motions for summary judgment filed by the respective parties also had before it statements made by the defendant in a deposition. That portion of the deposition which is pertinent to the issue before us is as foUows:

“Question; You say the words $50,000 were not there; do you recaU that?
Answer: I recall there was no writing, nothing written in on pen and ink on that.
Question: Do you recall for what amount of credit it was for?
Answer: There was no mention of credit that it was to be for.
Question: Was there any designation with your husband that it was for $10,000 or $25,000?
Answer: No, no discussion, absolutely, for any amount.
Question: There was no designation?
Answer: No.”

The statements of the defendant in her deposition and the allegations in the pleadings filed by her are diametrically opposed as to the amount involved in the guaranty agreement. She stated in her deposition that there was no discussion or designation as to the amount of credit to be guaranteed yet subsequently in pleadings filed by her admits that she intended to guarantee the liability of her husband to the sum of $20,000.

Confronted with these two conflicting, positions taken by the defendant the trial court in its opinion which concluded that plaintiff’s motion for summary judgment should be granted made the foHowing observation:

“The fact that the defendant now states that the guaranty was for $20,000 does not make the amount of the guaranty a triable issue. The defendant is bound by the prior admission she made in her deposition. Triable issues cannot be manufactured by a change in one’s testimony.”

We concur in this finding by the trial court and further subscribe to its statement that “She (defendant) knew the date, the name of the debtor, the name of the bank and the fact that she had signed a guaranty. She now contends, however, that the guaranty was for the sum of $20,000.00. The admissions made by her in her deposition belie this fact.”

It should be noted that in the case before us we do not have a defendant inexperienced in the ways of finance nor one who is encumbered by lack of understanding or education. She had participated with her husband in carrying on a farming enterprise and this participation included writing checks and joining in with her husband in borrowing money for the farm operation. The defendant is a well educated individual having graduated from Stanford University with a B.A. degree. Further it cannot be ignored that the loan guaranty agreement signed by her was a cross guarantee agreement in that her husband on the same date executed an agreement guaranteeing the defendant’s credit to the sum of $50,000.

In the light of such circumstances it can only be concluded that the defendant made admissions that establish the loan guaranty agreement as a valid instrument.

The defendant, however, contends that to so conclude has constituted error, and the main thrust of the defendant’s argument regarding this contention is that the instrument was altered and consequently the Statute of Frauds is a defense.

The defendant cites a number of cases to support the proposition that the alteration of an instrument maltes it void, to-wit, Ruwaldt v. McBride, 388 Ill. 285, 57 N.E.2d 863; Merritt v. Dewey, 218 Ill. 599, 75 N.E. 1066. An examination of these cases discloses that the alterations in the instruments therein were made without any authority or authorization. In the case before us it is quite apparent that the defendant is unable to present any evidence that the filling in of the blanks on the guaranty agreement by the plaintiff was unauthorized. She admits the date, name of debtor, name of creditor and questions only the amount of liability. She does not question that liability was to be imposed by the filling in of the appropriate blank by the defendant, but asserts that it was riot to exceed $20,000. In view of the defendant’s aHegations set forth in pleadings and admissions made in a deposition it becomes quite apparent why she is unable to show lack of authorization on the part of the defendant to complete the guaranty agreement. The defendant had the burden of showing lack of authorization. In the absence of evidence tending to show the completion of the instrument was unauthorized, this court will presume that the instrument incomplete when executed was properly filled out. Hutcheson v. Herron, 131 Ill.App.2d 409, 266 N.E.2d 449.

In examining the case of Hutcheson we find a factual situation quite similar to the one in tire instant case. In Hutcheson the payee of certain notes after they had been executed by the payor inserted the amount of interest and the due dates. The defendant payor contended as does the defendant in this case that the alteration of the notes after execution rendered them unenforceable. The reviewing court in disposing of this contention stated:

“When a person signs and executes a form instrument without filling in all the blanks, the person by implication authorizes a holder of the instrument to fill in the empty blanks in accordance with an underlying agreement.”

The defendant questions the holding in the Hutcheson case on the basis that it is one which involves a negotiable instrument and therefore is predicated upon certain provisions of the Uniform Commercial Code. We agree that a negotiable instrument was the res gestae in Hutcheson; however, we do not believe that the courts holding was limited to only such cases. In support of the court’s holding a number of authorities were cited not all of which dealt with negotiable instruments or commercial paper. See Jewell v. Rock River Paper Co., 101 Ill. 57, which involved the implied authorization to complete a subscription book for the purchase of corporate stock, and Krueger v. Dorr, 22 Ill.App.2d 513, 161 N.E.2d 433, where the instruments involved were both a promissary note and a second mortgage trust deed. While in the instant case the loan guaranty agreement cannot be classified as a negotiable instrument and therefore subject to certain provisions of the Uniform Commercial Code which authorizes the completion of incomplete instruments in certain instances, such agreement was nevertheless a part and parcel of a financial transaction entered into by the defendant, her husband and the plaintiff, a financial institution. The defendant was well aware that the consequences of the loan guaranty agreement would be the lending of money and the execution of promissary notes. This was her desire and intent and in the light of such circumstances we hold the law . in Hutcheson is applicable and that the plaintiff had implied authority to complete the blank spaces in the agreement in accordance with the underlying agreement between the parties.

The defendant strongly stresses that the case before us is one which falls within the purview of the Statute of Frauds and consequently the trial court erred in denying her motion for summary judgment. In our opinion there exists a serious question as to whether the defendant's interpretation of the Statute of Frauds is a meritorious defense since the statute has no application where there has been substantial performance on the part of one party in reliance on an agreement. (See Anastaplo v. Radford, 14 Ill.2d 526, 153 N.E.2d 37.) The defendant cannot and does not deny that substantial performance in the advancement of funds to her husband was made by the plaintiff. However, for purposes of arguendo only we will assume that the loan guaranty agreement is of the genus that normally would be required to meet the requirement of the Statute of Frauds. Accepting this assumption we nevertheless do not agree that the statute constitutes a defense to the action of the plaintiff. It is well established in our state that the courts will not permit the Statute of Frauds, the only purpose of which is to prevent fraud, to be used where the effect will be to accomplish a fraud, and if the facts are such that it would be a virtual fraud to permit the defendant to interpose the statute, a court will not listen to that defense. (Wessel v. Eilenberger, 2 Ill.2d 522, 119 N.E.2d 207.) The trial court in the instant case in its written opinion made the observation that to permit the defendant to now rely upon the Statute of Frauds would have the effect of perpetrating a fraud, not preventing one. With this observation we agree.

The defendant further urges that the record in this case is one which will not support an award of summary judgment to the plaintiff.

The defendant bases this argument on her contention that questions as to the alteration of this loan guaranty agreement and by whom, when and with or without authority are all questions of fact for a jury. Our analysis of the record does not lead us to the same conclusion. While there are conflicting opinions with respect to the interpretation of the facts presented it does not necessarily follow that issues of fact are present which must be submitted to the jury. The purpose of a motion for summary judgment is to determine whether there is a genuine issue as to any material fact. (Welsh v. Centa, 75 Ill.App.2d 305, 221 N.E.2d 106; Allen v. Meyer, 14 Ill.2d 284, 152 N.E.2d 576; Florence v. Travelers Insurance Co., 59 Ill.App.2d 470, 208 N.E.2d 95.) We fail to find in the instant case any genuine issue as to a material fact and hence the summary judgment procedure was properly utilized.

For the reasons set forth the decree of the circuit court of Grundy County granting summary judgment to the plaintiff is affirmed.

Affirmed.

ALLOY, P. J., and STOUDER, J., concur.


author: Mr. JUSTICE STOUDER

text:
    Save-At Builders Products Co., Inc. et al., Plaintiff-Appellee—(The City of East Peoria, Plaintiff-Intervenor-Appellee,) v. American Federation of State, County, and Municipal Employees et al., Defendants-Appellants.
    (No. 72-234;
    Third District —
    August 29, 1973.
    Arnold Chamin, of Chicago, for appellants.
    Gerald D. Skoning, of Chicago, and Moehle, Moehle, Reardon, of East Peoria, for appellees.
   Mr. JUSTICE STOUDER

delivered the opinion of the court:

An action seeking injunctive relief was brought by Plaintiff-Appellee, Save-At Builders Products Co., Inc., in the circuit court of Tazewell County against Defendants-Appellants, labor organizations, and certain individuals as officers and representatives of labor organizations. The complaint alleged the defendants, representatives of firemen and policemen employees, are engaged in labor contract negotiations with the City of East Peoria; the president of plaintiff company is Mayor of the City of East Peoria; defendants are picketing the Mayors place of business, a private retail lumber business, and interfering with customers and their entrance to plaintiff company and threaten to continue to do so, all of which is causing injury to plaintiff’s business. Plaintiff sought to enjoin defendants from engaging in picketing its premises and from harassing persons entering and leaving the premises. By agreement of the parties the circuit court issued a stipulation and ordered on July 18, 1972 which limited picketing to not more than one representative of the policemen and one representative of the firemen at the same time, and the nature of the picketing was limited to informational picketing. Defendants were prohibited from obstructing entrance to and exit from plaintiff’s facility and if either party felt aggrieved, the court would continue the hearing on the complaint for injunctive relief.

In the late afternoon of July 20, 1972, .plaintiff notified defendants of a hearing on plaintiff’s motion to vacate the stipulation and order and motion for a temporary injunction scheduled for the following afternoon, July 21. The notice was served on defendants’ attorney at her office in Chicago. Since she was out of the city, she did not learn of the notice until the following morning. The defendants’ counsel was unable to travel to Pekin, Illinois where the hearing was held that afternoon and so informed the court prior to the hearing. The court, however, refused to continue the cause. Without counsel present to represent defendants, the court proceeded with the hearing and granted a temporary injunction prohibiting defendants from obstructing the entrances to plaintiff’s premises and enjoining any mass or individual picketing at or near plaintiff’s premises. Defendants, pursuant to the order, discontinued picketing. Subsequently, on August 25, defendants’ motion for clarification and/or dissolution of the injunction and defendants’ motion to stay enforcement of the temporary injunction were denied. Defendants have appealed from the judgment of the circuit court granting the temporary injunction.

The first assignment of error relates to a procedural matter in the proceeding below. It is urged the temporary injunction was granted without adequate notice given to defendants and counsel and the court abused its discretion in holding the hearing without counsel present to represent defendants. In answer to this contention, plaintiff argues notice was served on defendants and counsel and this notice was in fact adequate, especially in view of the immediate and irreparable harm being suffered by plaintiff.

Defendants’ next contention is the temporary injunction was contrary to law in that the enjoining of the picketing constitutes an unconstitutional restriction on free speech and is a violation of the Illinois Anti-Injunction Act. Furthermore, since the complaint alleged activities by defendants which constitute a secondary boycott, this matter is within the exclusive jurisdiction of the National Labor Relations Board. Section 8(b) 4(b) of the National Labor Relations Act (29 U.S.C., sec. 158(b) 4(B)) describes certain labor-management relations where the federal pre-emption doctrine applies. Plaintiff, on the other hand, argues the conduct is illegal and the federal labor legislation does not pre-empt the state court’s power since this is a situation involving conduct where the state has a compelling interest. State jurisdiction should prevail in this traditionally local matter and it is not affected by the federal act.

At the request of this court the parties have submitted special briefs on the issue of mootness. On October 24, subsequent to the filing of defendants notice of appeal, a new collective bargaining agreement was executed by the defendants and the City of East Peoria which resolved the labor dispute underlying the unions’ picketing activity. It is plaintiff’s position that this appeal has become moot as a result of the resolution of the underlying labor dispute.

It is well settled a reviewing court will decide only actual controversies which affect the interests or rights of the parties to the litigation and in a case with questions which have become moot, the appeal will be dismissed. (Siefferman v. Johnson, 406 Ill. 392, 94 N.E.2d 317.) An exception to the rule which would require the dismissal of an appeal in a case where the issues become moot exists when an issue of substantial public interest is involved. People ex rel. Wallace v. Labrenz, 411 Ill. 618, 104 N.E.2d 769.

Appellants claim the court should consider the questions of federal pre-emption and the allowable limits of a public employees’ dispute, because of the need for a legal precedent. Because there is no protective legislation for public employees in Illinois permitting them to organize and to bargain collectively as in the private sector, it is of great importance to resolve this issue. Although appellee may recognize the need for law to govern labor relations in the public sector, they argue the Illinois legislature, and not the courts, should set forth such policy. We agree there are few decisions dealing with public employee labor disputes in Illinois. The paucity of decisions might well justify the conclusion the public interest would be served by considering issues of general scope in this important area. In the absence of legislation a court can and must attempt to resolve disputes. In this particular case, we feel it is impossible to consider the issue as a public interest exception to the rule of mootness, not because of the issues raised, but because of the sketchy and ambivalent character of the evidence arising in large part from the procedure in the lower court.

In responding to appellants’ claim the decision stands as precedent and should be considered for such reason, appellee points out when a case on appeal becomes moot the court will reverse or vacate the judgment below and remand with a direction to dismiss. (Cf. La Salle Nat. Bank v. City of Chicago, 3 Ill.2d 375, 121 N.E.2d 486, United States v. Munsingwear Inc., 340 U.S. 36, 71 S.Ct. 104, 95 L.Ed. 36.) By following such procedure, the conclusion that the rights of the parties have been adjudicated will be avoided.

For the foregoing reasons, the judgment of the circuit court of Tazewell County is remanded with directions to vacate the temporary injunction and dismiss the petition therefor.

Judgment remanded.

DIXON and SCOTT, JJ„ concur.


author: Mr. PRESIDING JUSTICE ALLOY

text:
    Dale E. Rhodes, Plaintiff-Appellant, v. John L. Oliva, Defendant-Appellee—(Roy A. Moffet, Defendant and Counterclaimant-Appellant.)
    (No. 72-303;
    Third District —
    August 29, 1973.

      John V. Patton, of Moline, and Stuart R. Lefstein, of Rock Island, for appellants.
    Dennis R. Fox, of Moline, for appellee.
   Mr. PRESIDING JUSTICE ALLOY

delivered the opinion of the court:

This is an appeal from judgments entered in the circuit court of Rock Island County in an action involving an automobile collision as a result of which Dale E. Rhodes and Roy A. Moffet had judgments entered against them and in favor of John L. Oliva. The action resulted from a collision which occurred on November 11, 1971, shortly after 10:00 P.M., as a result of which automobiles operated by Roy A. Moffet and John L. Oliva collided at the intersection of John Deere Road and Colona Avenue in Rock Island County. Dale E. Rhodes, a passenger in the Moffet vehicle, instituted an action in the Circuit Court to recover damage for serious personal injuries which he received and maintained such action against Oliva (Moffet was an original defendant, also). Oliva filed a counterclaim and asserted a damage action against Moffet, and Moffet, in turn, counterclaimed for damages against Oliva. All actions were based upon the contention that the defendant in each asserted claim was guilty of negligence. Following a trial by jury, verdicts were rendered against Moffet in favor of Oliva and assessed the damages of Oliva at $500. Verdicts were also rendered as against Rhodes and Moffet in their actions against Oliva and judgments were rendered on the verdicts. Rhodes and Moffet .have appealed to this Court.

In the vicinity of the collision, John Deere Road is a north-south preferred highway with a speed limit of 65- miles per hour. It has two paved lanes running in each direction, each lane being 12 feet in width, and at its intersection with Colona Avenue there are third, or inner, lanes in each direction for the exclusive use of left-turning vehicles. The intersection is controlled by eight electric traffic lights located on concrete medians and islands at various points in such a fashion that six lights face John Deere and two face Colona. Unless there is traffic approaching the intersection on Colona, the lights continuously show green for John Deere traffic. When traffic does approach on Colona, a signal change is automatically activated. For traffic approaching from the west on Colona, the activator is located 125 feet from the intersection and, once a vehicle passes it, dependent upon the location of traffic approaching on John Deere, 15 or 19 seconds elapse before the lights facing Colona change directly from red to green. During the change sequence, the six lights facing John Deere traffic, change from green to yeHow, remain yeHow for a period of 4 to 5 seconds, and then change to red at the same time as the two lights controHing Colona change to green.

On the night in question, three automobiles approached the intersection more or less simultaneously. The Moffet car, in which Rhodes was riding, was northbound along the outer northbound lane of John Deere and Moffet was intending to continue on north through the intersection. The car of Oliva was southbound on the inner southbound lane of John Deere, and he was intending to make a left turn onto Colona. The third vehicle, driven by Walter H. Mooney in the company of his wife, approached the intersection from the west on Colona, and it was the intention of the driver to continue east on Colona. As the Mooney auto puUed up to wait for the traffic signal to change to green, defendant started his left turn through the intersection and as he reached the outer northbound lane of John Deere, the coHision with the Moffet car occurred. Oliva’s car was spun around and remained in the intersection. Moffet’s car veered off to the right, struck a light standard, started roHing and burst into flame. Physical evidence indicated that the collision had occurred several feet within the outer northbound lane, and that the left front of Oliva’s car had struck Moffet’s car in the area of its left front wheel, although Oliva characterized it that the left front of his car had been struck by the side of the Moffet car.

Moffet testified that he could remember nothing about the accident, and that his earliest recall was several days later when he awoke in a hospital. Rhodes, a mechanic by trade, testified that for several hours before the accident he had assisted Moffet with the installation of a used transmission in the latter’s car. In order to test the transmission, Rhodes drove the car to a point about one and one-half miles from the intersection and then turned over its operation to Moffet. According to his further testimony, they approached the intersection in the outer northbound lane at a speed of 55 miles per hour, and that at a distance of about 1500 feet from the intersection he noted that the light for John Deere traffic was green. He stated that Moffet reduced the speed of the car to 45 or 50 miles per hour as they neared the intersection; that 200 feet from the intersection he again noted that the light was green; that he saw Oliva’s southbound car approaching the intersection; and that when Moffet’s vehicle was about two car lengths from the intersection, at which time the light was still green, he saw Oliva’s car start to make a left turn and exclaimed: “Oh my God, he’s going to hit us!” Immediately thereafter, Oliva’s car struck Moffet’s car just behind the left front tire. Rhodes further stated that he did not see a turn signal operating on Oliva’s car, and that he didn’t notice any other vehicles at the intersection. Relating to the question of speed, both Rhodes and Moffet testified that a newly installed used transmission should not be driven at excessive speeds until about a week after installation, and Moffet stated that to go over 60 miles per hour would ruin the transmission. He conceded on cross-examination, however, that there was nothing to prevent one from driving an automobile equipped with a newly installed used transmission in excess of 60 miles per hour.

Oliva testified that he entered John Deere Road about a mile north of the intersection and proceeded south at a speed of 50 to 55 miles per hour. He said he first noticed that the light was green for John Deere traffic when he was about 200 feet from the intersection, and that he noticed the lights of the northbound Moffet car, which was more distant from the intersection than he was, at the same time. Oliva said that he activated his left turn signal; that he noticed a car to his right on Colona stopping at the intersection; that his speed was slowed to from 10 to 15 miles per hour when he reached the intersection; and that the light was still green. Describing his left turn, Oliva testified that the traffic light turned to yellow as he got about half a car length into the intersection; that at that time the Moffet car was “about no greater than 200 feet from the intersection”; that he continued on with his turn at a speed of 4 to 5 miles per hour; and that he did not again look in the direction of the Moffet vehicle or see it until a split second before impact, which he described as occurring in the east half of the intersection

Mrs. Mooney, appearing as a witness for Oliva, testified in substance that when her husband stopped their car on the west side of the intersection the light for Colona traffic was red; that Oliva’s car was into the intersection when she first saw it; that the latter made a left turn going slowly; and that the light for Colona traffic turned to green while the Oliva car was stUI within the intersection and headed east. Further, she stated that after the light had changed to green on Colona, she heard and saw the Moffet car approaching the intersection from her right on John Deere, and then saw the Moffet car collide with the rear of Oliva’s car. She said that the Moffet car was about one to three car lengths from the intersection when she first saw it, and expressed the opinion that it was traveling at a speed of 70 to 75 miles per hour. On cross-examination, she stated that as they were stopped at the intersection, “ we waited more than a minute and the light continued to stay red for us,” and persisted in her testimony that she had seen, and knew when, the light on Colona had changed to green. By way of impeachment, however, it was brought out that she had stated on a pre-trial deposition with reference to the green light: “I didn’t pay any attention to it, but my husband did.”

Consistent with the testimony of his wife, Walter H. Mooney, who suffered from blurred vision in one eye, also testified that the light changed to green for Colona traffic while Oliva was within the intersection making his left hand turn, and that he had heard and seen the Moffet auto approaching from his right after the light had changed. It was his estimate that the speed of the Moffet auto was from 80 to 90 miles per hour. On cross-examination, he stated that the Moffet auto was some 400 to 500 feet from the intersection when he first saw it and, inconsistent with the testimony of all other eyewitnesses, he further stated that the Oliva vehicle had stopped upon reaching the northbound lanes of John Deere and that it had remained stopped for 30 seconds before it was struck by Moffet’s car. On direct examination, Mooney testified that he had watched the light controHing his travel turn from red to green, but later admitted on cross-examination that just a few weeks earlier during a discovery deposition he had maintained that such light had turned from red, then to yellow, and only thereafter to green.

The basic contentions raised by Rhodes are that the trial court should have directed a verdict or entered judgment notwithstanding the verdict in his favor and against Oliva on the basis of the evidence which was presented at the trial. He asserts that such evidence established as a matter of law that Rhodes was free from contributory negligence and that Oliva was guilty of negligence which proximately caused the occurrence. In alternative, Rhodes contends that the verdict was adverse to him was contrary to the manifest weight of the evidence and requests that a new trial be granted to him.

While we agree with Rhodes that much of the testimony given by the Mooneys was confusing and possibly erroneous, a careful examination of the entire record makes clear that there is ample evidence to support the jury’s verdicts. The testimony given by Oliva alone clearly allows the inference that Oliva entered the intersection with a green light; that the light immediately thereafter changed to yellow; and that while Oliva was completing his left turn and thus clearing the intersection, the Moffet vehicle came into the intersection in violation of a red light and collided with the Oliva vehicle, at a time when the Oliva vehicle was lawfully there. While Oliva did not have the right to rely upon the assumption that Moffet would obey laws, as an excuse for Oliva’s failure to exercise due care (Tabor v. Tazewell Service Co., 18 Ill.App.2d 593, 153 N.E.2d 98), it is likewise true that Oliva was not required to anticipate the negligence on the part of Moffet in running a red light (which the jury apparently believed happened). (Osborne v. Redell, 22 Ill.App.2d 193, 159 N.E.2d 841.) The issue as to whether or not Oliva failed to maintain a proper lookout became a question of fact for the jury and was not, as appellants contend, in the category of testimony as to such a concrete fact which would constitute a judicial admission. As the court stated in Gauchos v. Chicago Transit Authority, 57 Ill.App.2d 396, 401:

“What does or does not constitute a judicial admission is a matter of case by case consideration. Before a statement can be held to be a judicial admission it must be given a meaning consistent with the context in which it is found and it must be considered in relation to the other testimony and evidence presented.”

See also: Bartolomucci v. Clarke, 60 Ill.App.2d 229, 235, where the court emphasized that if reasonable minds draw different inferences or conclusions from the evidence, the trial judge must submit such issues to the jury for determination. As relates to the physical evidence, it is not inconceivable from such evidence, that the left front of the Oliva vehicle, which at the time of impact Oliva stated was moving across the intersection in a southeasterly direction, could have collided with the left side of the Moffet vehicle in the area of the left front wheel of the Moffet automobüe.

It is clear that Oliva’s testimony could not be classified as inherently incredible and the questions relating to Oliva’s negligence or lack thereof were properly within the province of the jury and should not be resolved as a matter of law on the basis of the record. As noted in Kenney v. Churchill Truck Lines, Inc., 6 Ill.App.3d 983, 991, 286 N.E.2d 619, 624:

“Granted, there was conflicting testimony. There were variances and contradictions as to time, distance, conditions and conduct of the participants in this tragedy. But this is not at all singular, as it is a common phenomenon that the human mind possesses imperfect powers of recollection, all subject to countless factors of effect. The testimony before us once again merely demonstrates that man’s mind does not portray past events recollected with the scientific and objective precision of a motion picture camera.”

Emphasis is placed by appellants upon the case of Pedrick v. Peoria and Eastern R.R. Co., 37 Ill.2d 494, 510, 229 N.E.2d 504, 513-514, where the Illinois Supreme Court states:

“* * * verdicts ought to be directed and judgments n.o.v. entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.”

Obviously, as we have indicated, this is not the situation in the instant case, in view of the record.

Similarly, we do not find that the verdict in favor of Oliva and against Rhodes is against the manifest weight of the evidence. Employing the standard for overturning a verdict as against the manifest weight of the evidence long in use in Illinois, to conclude that such verdicts were i palpably erroneous or that a contrary conclusion is clearly evident would not be justified.

As we have frequently observed, the test is not whether this court, if it were a trier of fact in the case, would have reached a different conclusion than that of the jury. This court is governed solely by an examination of the record and does not have the opportunity to see and hear the witnesses in the case. As stated in Schneiderman v. Interstate Transit Lines, Inc., 331 Ill.App. 143, 147, 72 N.E.2d 705:

“There are many things which a jury observes on the trial * * * that do not appear from the printed record — the appearance of the respective witnesses, their manner of testifying and a great many other circumstances. They are in a much better position * * * to determine the truth of the matter in controversy than a court of review.” See also: Mirich v. T. J. Forschner Contracting Co., 312 Ill. 343, 358, 143 N.E. 846; Kotulla v. Great Lakes Terminal & Transport Corp., 101 Ill.App.2d 457, 463, 243 N.E.2d 461, 464.

As we have indicated in many cases, this court is not authorized to substitute its judgment for that of the triers of fact if there is sufficient evidence in the record to support the jury’s determination. Since we find that to be the case in the cause before us, the determination of the jury will not be set aside.

Plaintiff Rhodes has further contended that the jury was improperly instructed on two occasions with respect to whether the Moffet vehicle ran through a red light. From our examination of the transcript of the conference on instructions, it indicates that Rhodes’ counsel did not object to such instructions on the ground raised here. The cases in this State have consistently supported a salutary rule that objections not specifically made during the conference on instructions are permanently waived and cannot be interposed subsequently on appeal. (Ill. Rev. Stat. 1971, ch. 110, §67(3); Illinois Supreme Court Rule 239(b); Onderisin v. Elgin, Joliet & Eastern Ry. Co., 20 Ill.App.2d 73, 77-78, 155 N.E.2d 338.) As a consequence, we wiU not consider the arguments with respect to the contested instructions and express no opinion as to such matters for the reasons stated.

Our observations in this opinion with respect to the evidence as it appfies to the action between OHva and Rhodes is also relevant to the actions between Moffet and OUva. It is clear from such evidence that it was well within the province of the jury to determine that Oliva was not neghgent and that the negligence of Moffet proximately caused the occurrence. Such being the case, the verdict in favor of OUva and against Moffet cannot be said to be erroneous as a matter of law or contrary to the manifest weight of the evidence.

Since we find no error in judgments of the circuit court of Rock Island County, such judgments are accordingly affirmed.

Judgments affirmed.

DIXON and SCOTT, JJ., concur.