author: JUSTICE KARNS

text:
    GEORGE ROBERT CALI et al., Plaintiffs-Appellants, v. JOHN DeMATTEI et al., Defendants-Appellees.
    Fifth District
    No. 5—83—0556
    Opinion filed February 9, 1984.

      Michael Pasko, of Buckner, for appellants.
    Ronald J. Giacone, of Benton, for appellee John DeMattei.
    Feiger, Quindry, Molt, Harvey, Fyie & Hawkins, of Fairfield (Morris Lane Harvey, of counsel), for appellee S. C. Vaughan Oil Production Co.
   JUSTICE KARNS

delivered the opinion of the court:

George Robert Cali and Shirley Ann Cali brought this action in the circuit court of Franklin County against John DeMattei and the S. C. Vaughan Oil Production Company arising from Vaughan’s entry onto the plaintiffs’ land for the purpose of drilling for and removing the underlying oil and gas. Upon motion of the defendants, the court dismissed plaintiffs’ action finding that DeMattei owned the oil and gas and had leased the same to Vaughan. Plaintiffs appeal.

The complaint alleged that DeMattei breached a warranty in a deed to plaintiffs’ predecessor in title by illegally retaining the oil and gas in the property in question and then leasing that interest to Vaughan. The complaint also alleged trespass and conversion of the oil and gas against Vaughan. The plaintiffs claim that because DeMattei had no interest in the underlying oil and gas, he could not have leased that interest to Vaughan.

The facts are uncontested. In 1905, prior owners of the land conveyed the underlying coal to George Harris. This grant of the coal has been excepted in all subsequent conveyances of the land and is not at issue here. DeMattei acquired the property in 1939 subject to Harris’ coal grant. On September 5, 1963, DeMattei conveyed the land by warranty deed to Carmelo Cali “excepting the coal, oil, gas and other minerals” underlying the property. Carmelo Cali conveyed the property to the plaintiffs in 1972; this warranty deed also “excepted” the coal, oil, gas and other underlying minerals.

The plaintiffs based their cause of action on the interpretation of the word “excepting” in the 1963 deed from DeMattei to Carmelo Cali. They claim that an exception under a deed has a technically distinct meaning from a reservation in that the former prevents an already identifiable interest from passing with the property while the latter creates a new interest and reserves it in the grantor. Plaintiffs argue that the language in the 1963 deed could only except the previously severed coal interest of Harris; subsequently, DeMattei’s failure to “reserve” the unsevered oil and gas interests was fatal to any retention of that interest by him. The sole issue in this case is whether DeMattei’s use of the word “excepting” in the 1963 deed retained an interest in his favor of the underlying oil and gas in addition to excepting the coal previously conveyed to George Harris.

The law in Illinois is well settled that the primary purpose of judicial construction of deeds is to ascertain the intention of the parties. This is to be determined and gathered from the instrument as a whole, giving effect to every word and rejecting none as meaningless or repugnant, if it can be done without violating any positive rule of law. (Goin v. Eater (1982), 107 Ill. App. 3d 887, 890, 438 N.E.2d 234, 236.) The deed speaks for itself, and its construction is dependent on the language used; it cannot be presumed that the words or terms in a conveyance were used without meaning or import; therefore, a construction will be adopted that gives effect to the instrument and to each word and term employed. Pfeffer v. Lebanon Land Development Corp. (1977), 46 Ill. App. 3d 186, 360 N.E.2d 1115.

The plaintiffs rely on Pfeffer for the distinction between an exception and a reservation. This court noted the well-accepted technical distinction in that case:

“Although the terms ‘exception’ and ‘reservation’ have been used indiscriminately as if synonymous in import [citations], the terms have different technical meanings. An exception in a deed withholds from that deed’s operation some part of the thing conveyed which, but for the exception, would pass by the general description to the grantee. A reservation, on the other hand, is the creation of some new right, in behalf of the grantor, issuing out of the thing granted and which did not exist before as an independent right.” (46 Ill. App. 3d 186, 190, 360 N.E.2d 1115, 1118.)

Plaintiffs argue that this distinction limits the function of an exception in a deed to announcing a prior severance of an interest. They claim that an exception puts a grantee on notice that some interest has been previously severed from the property conveyed, while a reservation accomplishes a severance for the benefit of the grantor. They assert that an exception cannot function to sever an interest and that the only means to accomplish this end is by reservation.

Such an interpretation of the technical distinction in Pfeffer is absolutely contrary to the above-stated Illinois law. The primary purpose of the construction of a deed is to ascertain the intention of the parties if not in conflict with a rule of law. DeMattei’s obvious intent was to retain an interest in the oil, gas and other minerals underlying the property conveyed to plaintiffs’ predecessor in title in addition to excepting the underlying coal which was previously conveyed. The technical distinction put forth by the plaintiffs ignores the parties’ intentions. Plaintiffs have cited no Illinois cases which adopt such an approach.

Plaintiffs seem to argue that construing the word exception as synonymous with reservation would violate the legal distinction noted in Pfeffer, but the law of Illinois is contrary to this position. The terms “exception” and “reservation” have been used as if synonymous. The technical distinction of Pfeffer is useful for definitional purposes, but the common law rule is that the terms can be used interchangeably. (Chicago Title & Trust Co. v. Illinois Merchants Trust Co. (1928), 329 Ill. 334, 160 N.E. 597.) In Chicago Title, the Illinois supreme court explicitly held that “[a]n exception in a grant is a reservation.” 329 Ill. 334, 349, 160 N.E. 597, 604.

This view was adopted in Adkins v. Arsht (E.D. Ill. 1943), 50 F. Supp. 761, which is similar to the instant situation. In Adkins a grantor conveyed property to a grantee “excepting all the coal, oil, gas and other minerals underlying same ***.” Prior to this conveyance the grantor had conveyed the coal rights to a third party. Subsequent to the conveyance, the grantor and the grantee each attempted to lease the oil and gas to separate developers. The grantor’s lessee brought suit to enjoin the grantee’s lessee from drilling oil wells. The defendant argued that the grantor could only “except” from the deed the previously conveyed coal. The district court noted the technical distinction between the two words and stated:

“Irrespective of their exact meanings, the words ‘exception’ and ‘reservation’ have been used indiscriminately as synonymous in meaning, and courts quite generally have held that the legal intent will be determined, not by the word used, but by the purport indicated in the entire grant. [Citations.] ***. Even if ‘except’ be given its strict technical meaning, it is obvious that it was used to retain the oil and gas interests in [the grantor] as well as to protect [the grantor] under the warranty as to the coal rights which had been previously conveyed. *** Obviously the oil and gas existed and were a portion of the entire fee, and it was entirely proper to retain them by excepting them from the grant.” (50 F. Supp. 761, 764.)

Plaintiffs cite the Pfeffer distinction as if it controlled the instant situation. However, the technical distinction of Pfeffer does not apply here.

Plaintiffs proffer a novel argument that the ownership status of oil and gas in Illinois and the Pfeffer distinction combine to demand strict interpretation of the terms “exception” and “reservation.” Plaintiffs cite Murbarger v. Franklin (1960), 18 Ill. 2d 344, 163 N.E.2d 818, for the proposition that Illinois treats oil and gas as incapable of being owned as a distinct interest apart from the accompanying surface. They claim that the fugacious nature of oil and gas requires that the ownership thereof be created separately and distinctly by the grantor. This right, they claim, can only be created by a reservation. Here they note the technical distinction of Pfeffer and claim that the defendant failed to create the new right in the underlying oil and gas by failing explicitly to “reserve” that ownership.

Plaintiffs offer no authority employing the distinction in this manner. Indeed, the cases plaintiffs cite are hostile to such a technical distinction. (See Updike v. Smith (1942), 378 Ill. 600, 39 N.E.2d 325; Miller v. Ridgley (1954), 2 Ill. 2d 223, 117 N.E.2d 759; Murbarger v. Franklin (1960), 18 Ill. 2d 344, 163 N.E.2d 818.) Each of these cases deals with the conveyance of property and the question of whether the underlying oil and gas passes with the property. Throughout these cases, the Illinois supreme court noted no distinction between the terms “exception” and “reservation”; rather, the court employed the terms interchangeably. Nowhere in Illinois law does the technical distinction noted in Pfeffer demand strict compliance with the usage of the terms at issue. In Miller v. Ridgley (1954), 2 Ill. 2d 223, 225, 117 N.E.2d 759, a grantor conveyed certain land to a grantee with this proviso: “ ‘All oil rights reserved to the grantors and subject to existing oil leases.’ ” The court held that “it is clear that what is meant is that the grantors sought to except from their warranty the oil-and-gas rights under the existing lease and in addition all other rights in and to the oil.” (2 Ill. 2d 223, 230, 117 N.E.2d 759, 762-63.) The court failed to find any distinction between the terms and held that the obvious intention of the parties should control.

This accords with the general view expressed by Professor Summers in 1A W. Summers, Oil & Gas sec. 137, at 305-06 (2d ed. 1954):

“[T]he courts have generally held in oil and gas cases that a reservation or exception of oil and gas creates a separate legal interest by way of exception. This can be supported on the theory that it is the intention of the grantor to retain all of his legal interest in respect to the oil and gas.” (Emphasis added.)

To require DeMattei to comport literally with the technical distinction between reservation and exception would contravene the intention of the parties as it is clearly stated in the deed. The deed is not ambiguous; should we employ plaintiffs’ distinction we would render nugatory the words “excepting the *** oil, gas and other minerals” found in the conveyance. Such a reading is absolutely contrary to Illinois law.

Plaintiffs further allege error in defendant DeMattei’s failure to specify whether his motion to dismiss came under section 2 — 615 or section 2 — 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, pars. 2 — 615, 2 — 619), and in defendant’s failure to support their separate motion to dismiss by affidavit.

DeMattei’s failure to specify the appropriate section in the Code is inconsequential to the case’s outcome. His motion to dismiss was essentially the same as Vaughan’s, and Vaughan’s motion was clearly predicated on section 2 — 619. The plaintiffs could not have been surprised by the substance of the motion. Plaintiffs were not prejudiced by DeMattei’s failure to specify. Furthermore, the defect was not raised in the court below, and this court should not consider it now. Melvin v. City of West Frankfort (1981), 93 Ill. App. 3d 425, 433, 417 N.E.2d 260, 265.

Plaintiffs claim that the defendants failed to provide by affidavit a sufficient evidentiary basis upon which the claim could be dismissed. This requirement is not necessary if the grounds for the dismissal appear on the face of the pleading. (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 619(a); Kessler, Merci & Lochner, Inc. v. Pioneer Bank & Trust Co. (1981), 101 Ill. App. 3d 502, 508, 428 N.E.2d 608, 613.) The substantive issue raised by the plaintiffs is solely a question of law, and it appears both on the face of the pleading and on the documents filed by defendant Vaughan with its motion to dismiss.

The judgment of the circuit court of Franklin County is affirmed.

Affirmed.

WELCH, P.J., and KASSERMAN, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    ALTON BANKING & TRUST COMPANY, Plaintiff-Appellee, v. CHARLES W. SCHWEITZER et al., Defendants-Appellants.
    Fifth District
    No. 83—192
    Opinion filed February 8, 1984.

      Ralph M. Friederich, of Peper, Martin, Jensen, Maichel & Hetlage, of St. Louis, Missouri, for appellant Charles W. Schweitzer.
    Christopher B. Hunter, of Farrell, Heil & Long, P.C., of Godfrey, for appellant Fred Kettlekamp.
    Paul E. Riley, of Mudge, Riley & Lucco, of Edwardsville, for appellants Robert W. Schwartz and Myrna P. Lewis.
    John C. Webster, of Williamson, Webster & Blaine, of Alton, for appellant Jerry Todd.
    Steven N. Mottaz, of Thomas, Mottaz, Eastman & Sherwood, of Alton, for appellee.
   JUSTICE KARNS

delivered the opinion of the court:

Defendants-Appellants, Charles W. Schweitzer, Robert W. Schwartz, Myrna P. Lewis, Fred Kettlekamp, and Jerry Todd, appeal from the judgment of the circuit court of Madison County which found them jointly and severally liable to Alton Banking and Trust Company as guarantors for loans to Metals Recycling Corporation on which that corporation defaulted. In addition to the principal amount of $114,792.41, the court ordered appellants to pay $43,839.25 in accrued interest, $17,000 in attorney fees and $428.90 in costs. A sixth defendant, Richard Laughlin, does not appeal.

In January 1978, Schweitzer, Schwartz, Lewis, Kettlekamp, Todd and Laughlin purchased stock in Metals Recycling Corporation (Metals Recycling). Laughlin and Eugene St. Cin, who later purchased Todd’s shares, asked the six investors to sign a guaranty to insure the payment of all of Metals Recycling’s debts to Alton Banking and Trust. In consideration of the guaranty signed by the six investors, on January 26, 1978, the bank loaned the corporation $100,000 at 10% interest. The bank’s ledger shows that the $100,000 debt was renewed several times with increased interest rates.

The guaranty which all six investors signed on January 23, 1978, provided that they would guarantee “all indebtedness *** now or hereafter to become due” and that “indebtedness” was used in its “broadest possible sense to cover any and all liability now or hereafter incurred in any possible manner whatsoever, direct or contingent” to the Alton Bank. The guarantors’ liability was not to be affected by extensions granted to the corporation, acts or omissions of the bank relative to the debt, or “any compositions, settlements or substitutions” the bank might make respecting the debt. No dollar amount was placed on the liability of the guarantors; the guaranty covered “the ultimate remaining balance due.” It was to remain effective until the full liability was paid. In addition to the principal, the guaranty covered interest and all costs reasonably incurred, including “attorneys’ fees involved in making collection” against the debtors and guarantors. A guarantor could terminate his liability for future indebtedness by giving the bank written notice of his intention to withdraw as a guarantor, but he remained liable for debts existing at the time of his written notice. No guarantor ever served written notice of withdrawal on the bank.

By September 1980, the corporation had reduced its debt to $85,000. The bank and corporation negotiated a note for $85,000 due in 1983 bearing an interest rate of 17.75%. This note was specially prepared by Chris Johnson, an officer of the bank. At the bottom of the note was a single guaranty paragraph:

“For value received, the undersigned do hereby jointly and severally guarantee the payment of the within note and interest at maturity, or at any time thereafter, with eight per cent interest per annum from maturity until paid, upon the same terms, conditions, and covenants, including same power-of-attorney, as the makers hereof.”

Johnson asked James Hair, chief financial manager of the corporation, to have the six guarantors sign the new note. Johnson said he would contact Todd because Hair did not know him, but no one ever told Todd about the 1980 note. The other five guarantors signed the new note and returned it to Hair, who gave it to the bank. Although most of those who signed the second note recalled that Hair’s cover letter led them to believe the 1980 guaranty replaced the 1978 guaranty, the letter itself did not mention any guaranty. The copy sent to Kettlekamp spoke only of notes:

“Please find enclosed the note *** that we discussed on the telephone. As I indicated, this replaces the $100,000.00 that Metals Recycling Corporation had previously.
After you sign the note, return it to me, as I need one additional signature ***.”

On January 12, 1981, the corporation signed a note for $114,792.41 at 22.5% interest with a maturity date of March 19, 1981. It encompassed the $85,000 debt on which no payments had been made and $18,045.30 representing overdrafts on the corporation’s checking accounts and interest due. The note for $85,000 was marked “Paid by renewal” on January 19, 1981. Metals Recycling defaulted on the January 12 note. On May 11, 1981, the bank filed suit against Schweitzer, Schwartz, Kettlekamp, Laughlin, Lewis, and Todd under the terms of the 1978 guaranty which made them liable for all indebtedness of Metals Recycling.

When Todd did not answer the bank’s complaint or appear, the court entered a default judgment against him. The default was later set aside and Todd testified in his own defense that when he sold his shares to St. Cin he had talked with the bank about substituting St. Cin in his place as a guarantor. The 1978 guaranty was not modified to substitute St. Cin. Todd never gave the bank written notice that he was withdrawing as a guarantor. He also testified that after suit had been filed a bank officer had assured him that the bank would not “pursue” him. After a bench trial, the court found in favor of the bank and against all guarantors, including Todd.

A flurry of post-trial motions followed. All defendants but Laughlin joined in a motion to vacate or amend the judgment. The motion alleged that the first guaranty merged into the second and that the material alteration in the obligation secured by the second guaranty discharged the guarantors from any liability to the bank. The defendants also objected that the interest had been improperly calculated and the award of attorney fees was excessive. The motion was denied. Schweitzer, Schwartz, Kettlekamp and Lewis sought to stay enforcement of the judgment by posting an appeal bond. The motion was denied. Kettlekamp and Laughlin stipulated that Laughlin agreed on April 28, 1981, to indemnify Kettlekamp fully for his liability as a guarantor. The court ordered Laughlin to indemnify Kettlekamp according to their agreement. We granted leave to file a late notice of appeal. Schweitzer, Schwartz, Lewis, Kettlekamp and Todd appealed from the judgment of the trial court and the denial of the post-trial motion.

We are asked to decide whether (1) the note and guaranty of September 17, 1980, replaced the guaranty of January 23, 1978; (2) the calculation of interest is correct; and (3) the award of $17,000 in attorney fees is an abuse of the court’s discretion. We find the second guaranty did not replace the first and affirm the trial court’s judgment as to the liability of all six of the original guarantors. We remand the case, however, for further proceedings with regard to awards of attorney fees and interest.

The appellants argue that the 1978 guaranty merged into the 1980 note and guaranty. We believe reliance on the doctrine of merger in the present case is inappropriate because merger is generally limited to cases in which a contract for the sale of land is fulfilled by delivery of a deed (Harris Trust & Savings Bank v. Chicago Title & Trust Co. (1980), 84 Ill. App. 3d 280, 405 N.E.2d 411) or where all prior negotiations between the parties are presumed to merge into a written contract (World Insurance Co. v. Smith (1975), 28 Ill. App. 3d 1022, 329 N.E.2d 518). Even where merger might be expected to occur, it will fail if the second contract does not satisfy all the terms of the original agreement. (Harris Trust & Savings Bank v. Chicago Title & Trust Co. (1980), 84 Ill. App. 3d 280, 405 N.E.2d 411; Hakala v. Illinois Dodge City Corp. (1978), 64 Ill. App. 3d 114, 380 N.E.2d 1177.) Merger may not occur when the second contract “covers only a part of the subjects embraced in the prior one, and it plainly appears, from the character of the contracts, that the last one was not intended to be in performance or supersedure of the former one, and that the provisions in the former, not embraced in the latter, were intended to remain unaffected.” (Ely v. Ely (1875), 80 Ill. 532, 537.) No argument has been made that the guaranty by five parties of a single note for $85,000 constituted performance of the original guaranty which provided for a continuing obligation of six guarantors for all debts owed to the bank by the corporation. A comparison of the expansiveness of the 1978 guaranty and the limited terms of the 1980 note and guaranty argues against a finding that the second was intended to supersede the first. Appellants cited Noll Baking & Ice Cream Co. v. Sparks Milling Co. (1940), 304 Ill. App. 624, 26 N.E.2d 425, in support of their merger argument, but Noll concerned modification rather than merger of contracts.

Appellants nevertheless seek to bring themselves within the language of Kraft v. No. 2 Galesburg Crown Finance Corp. (1981), 95 Ill. App. 3d 1044, 420 N.E.2d 865, where the court had “no difficulty” in seeing that a 1977 contract for a $10,000 loan merged into a 1979 contract containing exactly the same terms, amounts, and language except for the omission of the word “estimated” from the description of the finance charges and total payments due. In the present case, however, there is not that degree of identity between the 1978 and 1980 instruments necessary to indicate merger as found in Kraft.

Appellants offer as an alternative to merger the theory that the 1980 note and guaranty constituted a novation between the parties by which the second guaranty was substituted for the first. The party asserting the existence of a novation has the burden of establishing it by a preponderance of the evidence. (Faith v. Martoccio (1974), 21 Ill. App. 3d 999, 316 N.E.2d 164.) It must be shown that all parties to both old and new agreements intended to substitute the new agreement for the old. (Evans v. Owens (1961), 30 Ill. App. 2d 114, 173 N.E.2d 850 (abstract of opinion).) The intention of the parties may be inferred from the circumstances and actions of the parties. Lechleiter v. Lechleiter (1947), 330 Ill. App. 517, 71 N.E.2d 845.

We do not think evidence produced at trial convincingly indicated that all parties to the 1978 guaranty intended to put the 1980 agreement in its place. Todd, one of the guarantors on the original agreement, knew nothing of the 1980 note and guaranty. Hair, who contacted the other guarantors, did not know Todd and was relieved of the responsibility of approaching him. The bank said it would reach him, although it did not.

Appellants contend that the bank’s failure to include Todd on the 1980 note showed that they no longer regarded him as a viable guarantor and that they therefore intended to abandon the generous protection of the first guaranty for the narrow comfort of the second. However, Todd testified that his conversations with bank officers concerning a change in the first guaranty elicited from the bank no more than an agreement to talk with St. Gin about substituting him for Todd as a guarantor. It was Todd rather than the bank who considered Todd to be released from his obligation by these conversations. At no time did he give written notice of his intention to terminate his guaranty.

At the time of the second agreement, the bank still viewed Todd as someone it intended to approach regarding its loan security. The failure to reach Todd does not erase Hair’s admission that the bank spoke of the 1980 note as involving Todd as the sixth signer. In discussing Todd’s position in 1980, the bank was aware that he no longer held stock in the corporation but believed that St. Gin had agreed to indemnify Todd. Presumably, an agreement for indemnity would not be necessary unless Todd was still considered subject to liability. It is clear that the bank expected Todd to have a continuing involvement regarding loans to Metals Recycling and that Hair knew that. The facts do not speak of any intention which would be satisfied by an agreement with only five signatures. Joining Todd as a defendant is consistent with the bank’s view of Todd’s continuing liability. Comments that it would not pursue him may reflect no more than the bank’s belief that ultimate recovery would come from other guarantors, perhaps from Schweitzer on whom it made the only personal demand for payment.

Whatever the bank’s intention was, evidence does not show that the bank and the signers of the 1980 note had any common understanding of that instrument. Hair admitted that no one from the bank had ever told him it was the bank’s intention to replace one guaranty with another. His belief as to the nature of the agreement grew out of his inability to think of any other explanation for the bank’s action. In communicating his understanding by letter to the guarantors he spoke only of one note replacing another. Schweitzer signed the 1980 note on the basis of his assumption it would replace the earlier guaranty. The other guarantors took their understanding of the instrument from Hair. None dealt directly with the bank. These circumstances were quite different from those in Bridgeport State Bank v. Union Warehouse & Milling Co. (1926), 137 Wash. 190, 242 P. 13, where a second guaranty was found to have superseded the first. There the bank and guarantors dealt directly with each other and the bank asked the guarantors to bring in the new guaranty so it could give them the benefit of a lower interest rate on the notes.

In view of the appellants’ failure to show that all parties intended to accept the 1980 agreement as a substitute for 1978 guaranty, we find the trial court’s judgment was not against the manifest weight of the evidence. The force of the original continuing guaranty was unabated and applied to the note for $114,792.41 on which Metals Recycling defaulted in 1981.

We turn now to the issue of $17,000 in attorney fees awarded to the bank. In the absence of an express contract which would control the compensation due, under a general contract providing for attorney fees, an attorney is entitled to be paid for the value of the services rendered as shown by the evidence.

“The factors to be considered in determining the reasonable value of the service are: the skill and standing of the attorney employed; the nature of the cause and the novelty and difficulty of the questions at issue; the amount and importance of the subject matter; the degree of responsibility involved in the management of the cause; the time and labor required; the usual and customary charge in the community; and the benefits resulting to the client.” (Neville v. Davinroy (1976), 41 Ill. App. 3d 706, 711, 355 N.E.2d 86.)

In the present case, the bank’s attorney testified as to the value of his services in collection of the judgment, but the evidence did not support the award of $17,000. While the testimony concerning costs and fees for services already rendered did not show them to be unreasonable, the bank’s attorney and expert witness could only speculate as to services which might be rendered in the course of collection. We are inclined to agree with the attorney’s characterization of his own testimony as an estimate of fees for anticipated problems. Inasmuch as the guarantors are liable under the 1978 guaranty for “all cost reasonably incurred *** including attorneys’ fees involved in making collection,” we reverse the judgment as to the attorney fees and remand this cause so that the reasonable value of services rendered in the process of collection may be determined.

Finally, we consider the appellants’ claim that the trial court improperly calculated the amount of interest due on the $114,792.41 note. Interest on the note began té accrue at 22.5% per annum on January 12, 1981, when the note was signed and it continued to accrue until judgment was entered on September 28, 1982, 20 months and 16 days later. (Barker v. International Bank (1875), 80 Ill. 96.) In computing interest, a month is a calendar month and a day is one-thirtieth of a month. (Ill. Rev. Stat. 1981, ch. 17, par. 6418.) The trial court’s computation did not take into account the full period during which interest was accruing. We therefore reverse the judgment as to interest and remand this cause for recomputation of the interest due.

For the foregoing reasons, the judgment is affirmed in part, reversed in part and remanded for further proceedings in accord with the views expressed herein.

Affirmed in part; reversed in part; and remanded.

JONES and KASSERMAN, JJ., concur.


author: PRESIDING JUSTICE WELCH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. MARK A. SEATS et al., Defendants-Appellees.
    Fifth District
    No. 5—83—0176
    Opinion filed February 9, 1984.

      Robert W. Matoush, State’s Attorney, of Salem (Stephen E. Norris and Raymond F. Buckley, Jr., both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
    Paul D. Giamanco, of Giamanco & Wexstten, of Mt. Vernon, for appellees.
   PRESIDING JUSTICE WELCH

delivered the opinion of the court:

The State appeals from an order of the circuit court of Marion County suppressing certain evidence seized from the home of defendants Mark Seats and Tammy Seats during a search conducted pursuant to a search warrant. (87 Ill. 2d R. 604(a).) Three questions are presented by this appeal: (1) Should Illinois v. Gates (1983), 462 U.S. 213, 76 L. Ed. 2d 527, 103 S. Ct. 2317, be applied retroactively? (2) If so, is the complaint for the search warrant in this case sufficient under Gates? (3) Does a “good faith exception” to the fourth amendment apply here? We answer the first two questions affirmatively and need not address the third.

The Sandoval, Illinois, office of registered nurse Eva E. Schuler was burglarized on November 1, 1982. Taken from the office were a black medical bag, a calculator, and assorted medical instruments such as forceps, stethoscopes and a blood-pressure kit. On November 10, 1982, Ray Lee Jones, the assistant chief of police in Sandoval, appeared before a judge of the Fourth Judicial Circuit with a verified complaint for a search warrant. In that complaint, Jones stated that he had received an anonymous phone call from a woman who informed him that the items taken in the burglary of Schuler’s office were at 407 North West Second Street in Sandoval. She told Jones that she had seen the defendants carry a black medical bag into the trailer at that location. Jones further averred in the complaint that he had verified that the defendants lived at that address. He also stated that he knew the defendants and neither of them was engaged in any type of medical practice.

As Jones later testified during the defendants’ preliminary hearing and the hearing on their suppression motion, no evidence outside the complaint was presented to the judge on November 10. The requested warrant was issued, and certain items were seized from the defendants’ trailer. The defendants filed a motion to suppress use of those items at trial. A brief evidentiary hearing was held on March 3, 1983, at which the sole witness was Officer Jones. At the conclusion of the hearing, the court granted defendants’ motion. In a written order memorializing its oral pronouncement, the court noted that it had relied upon, inter alia, Aguilar v. Texas (1964), 378 U.S. 108, 12 L. Ed. 2d 723, 84 S. Ct. 1509, Spinelli v. United States (1969), 393 U.S. 410, 21 L. Ed. 2d 637, 89 S. Ct. 584, and People v. Greer (1981), 87 Ill. 2d 89, 429 N.E.2d 505.

Before deciding whether that order was correct, we must determine whether the fourth amendment analysis set forth in Illinois v. Gates (1983), 462 U.S. 213, 76 L. Ed. 2d 527, 103 S. Ct. 2317, decided June 8, 1983, should be applied to this case. In United States v. Johnson (1982), 457 U.S. 537, 73 L. Ed. 2d 202, 102 S. Ct. 2579, the Supreme Court undertook an extensive review and clarification of its precedents on whether fourth amendment decisions should be retrospectively invoked. Justice Blackmun, in his majority opinion, concluded that, as a general rule, a Supreme Court decision construing the fourth amendment should govern all cases not yet final at the time the decision was rendered.

An exception to this rule occurs when the court expressly declares its decision to be “a clear break with the past.” (Desist v. United States (1969), 394 U.S. 244, 248, 22 L. Ed. 2d 248, 254, 89 S. Ct. 1030, 1033.) Such a newly announced principle will not be found to be retroactive. Examples of this type of ruling are when the court explicitly overrules its own past precedent, disapproves a practice it had previously sanctioned, or overturns a well-established body of lower court authority. The defendants assert that Gates falls into this category of fourth amendment decisions.

Following Aguilar and Spinelli, many authorities derived a “two-prong” test for assessing the sufficiency of a complaint for a search warrant based on information from a confidential source. First, the magistrate must be presented with facts to show how the informant obtained his information. Second, he must be given some of the underlying circumstances from which the complainant concluded that the informant was credible or his information reliable, In the phraseology of the post-Aguilar and Spinelli decisions, the first of these requirements was referred to as the “basis of knowledge prong,” while the second was labeled the “veracity prong.” According to cases such as People v. Gates (1981), 85 Ill. 2d 376, 423 N.E.2d 887, each test must be satisfied independently before a complaint for a search warrant would be approved.

In Illinois v. Gates, the United States Supreme Court disagreed with that interpretation of Aguilar and Spinelli. Justice Rehnquist explained in his majority opinion that while questions of the informant’s credibility, reliability and the basis of his knowledge are “all highly relevant in determining the value of his report,” those questions are not “entirely separate and independent requirements to be rigidly exacted in every case ***.” (Illinois v. Gates (1983), 462 U.S. 213, 230, 76 L. Ed. 2d 527, 543, 103 S. Ct. 2317, 2327-28.) The significant issue in determining the applicability of Gates to this case is thus whether that reasoning signaled a clean break with past precedent. We do not believe that it did.

First, the court in Gates did not explicitly overrule any of its own prior decisions. Indeed, Justice Rehnquist maintained that the analysis employed in Gates “is far more consistent with our prior treatment of probable cause than is any rigid demand that specific ‘tests’ be satisfied by every informant’s tip.” (462 U.S. 213, 231, 76 L. Ed. 2d 527, 543-44, 103 S. Ct. 2317, 2328.) In a footnote to this statement, he observed that as the language of Aguilar indicates, “we intended neither a rigid compartmentalization of the inquiries into an informant’s ‘veracity,’ ‘reliability’ and ‘basis of knowledge,’ nor that these inquiries be elaborate exegeses of an informant’s tip. Rather, we required only that some facts bearing on two particular issues be provided to the magistrate.” (462 U.S. 213, 231 n.6, 76 L. Ed. 2d 527, 543 n.6, 103 S. Ct. 2317, 2328 n.6.) Far from abandoning Aguilar and Spinelli, the Gates decision evinces an intent to return to the original propositions contained in those opinions.

Second, the court in Gates did not disapprove a practice which it had arguably sanctioned in the past. The majority opinion, in detailing the history of its post-Aguilar and Spinelli decisions, made plain that the court never adopted the conjunctive “two-prong test” fashioned by other courts and commentators. Nor, in those decisions, did it specifically reject such an approach. However, the absence of any language approving of that test in the Supreme Court’s fourth amendment jurisprudence shows that Gates did not mark a departure from a practice accepted by the court.

Third, Gates was not a major break from a nearly unanimous body of lower court authority. Such a break occurs when a decision overrules clear past precedent or disrupts a practice long accepted and widely relied upon. (United States v. Johnson (1982), 457 U.S. 537, 552, 73 L. Ed. 2d 202, 215, 102 S. Ct. 2579, 2588, quoting Milton v. Wainwright (1972), 407 U.S. 371, 381-82 n.2, 33 L. Ed. 2d 1, 9 n.2, 92 S. Ct. 2174, 2180 n.2 (Stewart, J., dissenting).) In addition to not discarding any of its own precedent, the court in Gates did not expressly overrule lower court authority which applied the “two-prong test.” It is also difficult to characterize Gates as disrupting practices widely relied upon, because it did not invalidate previously common police activity. Put another way, any reliance upon pre-Gaies lower court law could only have been by violators of the law, and that reliance interest is not legitimate. See People v. Smith (1983), 95 Ill. 2d 412, 422, 447 N.E.2d 809, 813 (applying United States v. Ross (1982) , 456 U.S. 798, 72 L. Ed. 2d 572, 102 S. Ct. 2157, retroactively).

The Supreme Court’s decision in Gates, while articulating a method of analysis somewhat different from that used by some courts, set forth a standard ascertainable from its past precedents. Its ruling was based on long-recognized, if occasionally rigidly interpreted, principles of fourth amendment law. Nothing in that decision suggests that it should be treated as an exception to the general rule of retroactivity stated in Johnson, and therefore we conclude that Gates should be applied here.

The court held in Gates that “[t]he task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.” (462 U.S. 213, 238, 76 L. Ed. 2d 527, 548, 103 S. Ct. 2317, 2332.) The magistrate’s determination of probable cause must be accorded great deference. (Spinelli v. United States (1969), 393 U.S. 410, 419, 21 L. Ed. 2d 637, 645, 89 S. Ct. 584, 591.) And, in order to effectuate the preference for police action taken pursuant to a warrant (United States v. Ventresca (1965), 380 U.S. 102, 13 L. Ed. 2d 684, 85 S. Ct. 741), our task as a reviewing court is limited to determining whether there was a substantial basis for concluding that probable cause existed. (Illinois v. Gates (1983) , 462 U.S. 213, 238, 76 L. Ed. 2d 527, 548, 103 S. Ct. 2317, 2332; Jones v. United States (1960), 362 U.S. 257, 272, 4 L. Ed. 2d 697, 709, 80 S. Ct. 725, 737.) It is these principles which we must use in judging the sufficiency of the complaint for a search warrant.

The first fact which is immediately apparent is that the informer relied upon by Officer Jones was anonymous. The People argue that this means that we can presume the informer to have been an “ordinary citizen,” and thus reliable. (People v. Hoffman (1970), 45 Ill. 2d 221, 258 N.E.2d 326, cert. denied (1970), 400 U.S. 904, 27 L. Ed. 2d 141, 91 S. Ct. 142; People v. Hester (1968), 39 Ill. 2d 489, 237 N.E.2d 466, cert. dismissed (1970), 397 U.S. 660, 25 L. Ed. 2d 642, 90 S. Ct. 1408.) They reason that, unlike the “professional” informant, the anonymous tipster does not stand to benefit from his information. In re Boykin (1968), 39 Ill. 2d 617, 237 N.E.2d 484.

The defendants respond that under pre-Gates Illinois law, the presumptively reliable status of a citizen informer does not attach to a citizen who does not identify himself. (Compare People v. Davis (1980), 86 Ill. App. 3d 557, 407 N.E.2d 1109, with People v. Townsend (1980), 90 Ill. App. 3d 1089, 414 N.E.2d 483; People v. Sylvester (1980), 86 Ill. App. 3d 186, 407 N.E.2d 1002; People v. Mitchell (1979), 68 Ill. App. 3d 370, 386 N.E.2d 153; People v. Kahl (1978), 63 Ill. App. 3d 703, 380 N.E.2d 487; People v. Blackman (1978), 62 Ill. App. 3d 726, 379 N.E.2d 344.) In People v. Martin (1977), 46 Ill. App. 3d 943, 950, 361 N.E.2d 595, 600, the court quoted the following explanation for that rule.

“ ‘The courts have recognized a distinction between informers who are virtual agents of the police and ‘citizen informants’ who are chance witnesses to or victims of crime. The former are often criminally disposed or implicated, and supply their ‘tips’ to the authorities on a recurring basis, in secret, and for pecuniary or other personal gain. The latter are innocent of criminal involvement, and volunteer their information fortuitously, openly, and through motives of good citizenship. [Citations.] Because of these characteristics, the requisite showing of reliability in the case of a citizen informant is significantly less than that demanded of a police informer.’ ” (Emphasis added.) (People v. Ramey (1976), 16 Cal. 3d 263, 268-69, 545 P.2d 1333, 1336, 127 Cal. Rptr. 629, 632.)

The reasoning stated in Martin certainly survives Gates. There, Justice Rehnquist said that rigorous scrutiny of an informant’s basis of knowledge is unnecessary if “an unquestionably honest citizen comes forward with a report of criminal activity — which if fabricated would subject him to criminal liability ***.” (Emphasis added.) Illinois v. Gates (1983), 462 U.S. 213, 233, 76 L. Ed. 2d 527, 545, 103 S. Ct. 2317, 2329; cf. Adams v. Williams (1972), 407 U.S. 143, 146, 32 L. Ed. 2d 612, 617, 92 S. Ct. 1921, 1923 (information given by a citizen known to authorities furnishes “a stronger case than obtains in the case of an anonymous telephone tip”).

An anonymous informant has no inherent motive to lie, as often does the so-called “professional” informant, who is frequently rewarded with leniency or cash. On the other hand, the anonymous informant is not inherently constrained to tell the truth, as is the identified “ordinary citizen,” who could be penalized for misleading the police. These concerns prompt us to decline to apply any presumption of reliability to the anonymous informant. To do so would also be at odds with the Supreme Court’s conclusion that the anonymous letter in Gates, standing alone, would not provide probable cause for a search warrant. Illinois v. Gates (1983), 462 U.S. 213, 227, 76 L. Ed. 2d 527, 541, 103 S. Ct. 2317, 2326.

The authorities cited by the People do not justify invocation of the “citizen informant rule” here. In People v. Carton (1981), 95 Ill. App. 3d 937, 420 N.E.2d 753, the informant, although not identified to the magistrate, actually had personal dealings with the affiant police officer. The informant was, if not completely identified to the authorities, at least recognizable by them, and not completely anonymous. It is not apparent whether the informant in People v. Williams (1978), 62 Ill. App. 3d 874, 379 N.E.2d 1222, was known to the police, but to the extent that some language in Williams may suggest that a presumption of reliability should attach to the report of an anonymous informer, it is not in accord with the policies advanced in Gates.

However, to conclude that an anonymous tip carries no special'attributes of truth does not end the inquiry in this case. The “veracity of persons supplying anonymous tips is by hypothesis largely unknown, and unknowable. *** Yet, such tips, particularly when supplemented by independent police investigation, frequently contribute to the solution of otherwise ‘perfect crimes.’ While a conscientious assessment of the basis for crediting such tips is required by the Fourth Amendment, a standard that leaves virtually no place for anonymous citizen informants is not.” (Illinois v. Gates (1983), 462 U.S. 213, 237, 238, 76 L. Ed. 2d 527, 548, 103 S. Ct. 2317, 2332.) The ultimate question in this case, as it was in Gates, is thus whether the anonymous information was sufficiently corroborated to give rise to a fair probability that the described property was where the informant said it was.

Initially, we observe that, in the language of the pre-Gates decisions, the informant’s “basis of knowledge” was personal observation. She mentioned that she saw some of the stolen property. This allegation in the complaint eliminates the possibility that the information could “have been heard at a neighborhood bar, or possibly, could have been heard on a local news broadcast, or could have been read in the paper.” People v. Greer (1981), 87 Ill. 2d 89, 94, 429 N.E.2d 505, 507.

Moreover, much of what the informant told Officer Jones was substantiated by him from other sources. She stated that she had seen a black medical bag, and one had in fact been taken from Nurse Schuler’s office. She indicated that the defendants lived at 407 North West Second Street in Sandoval, and so they did. These facts can be added to information known to Officer Jones and presented to the issuing magistrate. Jones knew that the defendants were not engaged in the practice of medicine in any way, and possession by them of such an unusual item as a black medical bag under ordinary circumstances would be unlikely. It was also apparent to the magistrate that Sandoval is a small rural town, not a metropolitan area.

No single detail listed above would suffice to establish probable cause for the issuance of a warrant. But when the facts presented to the magistrate are considered together, they create a fair probability that the stolen property would be discovered in the defendants’ residence. We conclude that the magistrate’s decision to issue a warrant had a substantial basis in the facts presented to him. Accordingly, the order of the circuit court of Marion County granting defendants’ suppression motion must be reversed and this cause remanded for further proceedings.

Reversed and remanded.

EARNS and EASSERMAN, JJ., concur.


text:
    RUBY PIPER, Plaintiff-Appellee, v. MORAN’S ENTERPRISES, d/b/a Moran’s Market, Defendant-Appellant.
    Fifth District
    No. 5—83—0298
    Opinion filed February 10, 1984.

      Stephen W. Thomson, of Reed, Armstrong, Gorman & Coffey, P.C., of Edwardsville, for appellant.

      Stephen C. Buser, of Frierdich and Buser, of Columbia, for appellee.
   JUSTICE KARNS

delivered the opinion of the court:

Defendant-appellant, Moran’s Enterprises d/b/a Moran’s Market, appeals from the judgment of the circuit court of St. Clair County entered upon the jury’s verdict in favor of the plaintiff-appellee Ruby L. Piper. Moran’s Enterprises (Moran’s) appeals from the denial of its post-trial motion for judgment notwithstanding the verdict or a new trial. The jury awarded Piper $31,000 in damages for personal injuries suffered in a fall from a wooden pallet in the appellant’s store.

Piper went to Moran’s store on December 23, 1978, to buy a case of root beer. She shopped in Moran’s because it was convenient and it sold certain items, including soda, more cheaply than other markets. Dottie Darnell, a clerk in Moran’s, recognized Piper and saw her go to the aisle where cases of soda were stacked on wooden pallets placed along the walls. Darnell could see Piper’s head and shoulders above stacks of merchandise. Piper, 61 years old at the time of the accident, was wearing her glasses and low-heeled shoes.

As Piper moved her grocery cart along the aisle, she stopped to talk with another shopper and then turned back to get the root beer from one of the wooden pallets. A pallet is a wooden platform 40 inches by 48 inches. Its top surface is formed of wooden slats separated by random spaces, variously estimated to be one quarter, 21/2 or three inches wide. The pallets, stacked with 100 cartons of soda, were delivered to Moran’s from the dealer’s warehouse. Moran’s employees used pallet jacks to bring the filled pallets into the store and place them along the wall as well as to remove empty ones. Properly inserted, the jacks went under the slatted top surface so that the boards ran across the jacks and were parallel to the wall when the pallets were in place. Piper described the boards in the pallet from which she fell as running out from the wall rather than parallel to it. Darnell, who said she had pulled cases of soda to the front of the same pallet, thought the slats “would have been running crosswise *** 11

The market used the pallet system to lower labor costs, but it required its employees, including managers, to move cases forward on the pallets so customers could reach merchandise without getting on the pallets. As damaged pallets were found in the store, they were stacked behind the building to be returned to the warehouse. No signs were posted to advise patrons about stepping on pallets, but employees were expected to move cartons for customers who asked for assistance. Darnell said she had never seen an adult step on a pallet to get anything. Piper said she had stepped on pallets before. On the Saturday when Piper fell, an extra stock boy had been hired to restock and help customers. Piper did not see him.

Darnell testified that sometime before 10 a.m. on December 23 she moved all 35 cases of soda to the front of the pallet. She estimated that 200 customers had come through the store that morning, and she had been busy at the check-out counter from 10 a.m. on. When Piper came to the pallet, she found partly filled cases on the right front of the pallet, but she wanted root beer which was further back. Under vigorous cross-examination she said that she saw no defect in the pallet before she stepped on it and that she may have stepped two feet into the middle of it. She took up a case of soda and made a quarter turn to the left. Her foot was caught and she fell, breaking her ankle and suffering other injuries. After she fell, she saw a hole on the left front corner of the pallet. She did not hear any cracking sounds or see any ragged edges, but thought there was a short board on the top of the pallet where the hole was.

Darnell, hearing Piper call out and seeing her disappear behind stacked merchandise, came up to where Piper lay on the floor. Piper remembered mentioning the hole to Darnell, but Darnell denies hearing any comment about the pallet. Nothing was said to the manager about the pallet. In a deposition read to the jury, the doctor who examined Piper at the hospital repeated her account of falling because she tried to free her foot from a hole in the pallet. Piper’s daughter thought her mother said her foot went “in a hole” or “between the boards.” A friend vaguely remembered a comment about a heel catching in a slat.

After the fall, Piper was taken to the hospital where the broken bones were realigned and a east applied. A second cast was applied in January 1979. After the second was removed and Piper began to walk again, she complained of back pain. She was treated for back problems over a period of years. Doctors testified that her ankle was permanently weakened and that her back condition had probably been aggravated by the fall. It was predicted that she would continue to experience back pain.

Piper filed her first complaint on June 4, 1979, alleging that her injuries were the result of the store’s negligence in bringing in a wooden pallet “containing a hole or wide spaces on the top.” After a series of motions to dismiss and amended complaints, Piper’s fourth amended complaint was filed on March 29, 1982, naming Moran’s Enterprises, Inc., d/b/a Moran’s Market, as the sole defendant. Piper alleged that by maintaining a wooden pallet with an open space in the top caused by a missing piece of the pallet, Moran’s failed to exercise due care for Piper who was an invitee. She further alleged in subparagraphs 4b through 4c that Moran’s had failed to move the soda cases forward on the pallet, to appreciate the danger in requiring customers to step onto the pallets, to warn of the dangers and to conduct routine inspections of the pallets. Moran’s moved to dismiss the fourth amended complaint or to strike subparagraphs 4b through 4c. After the motion was denied, Moran’s denied all of Piper’s allegations and filed an affirmative defense of Piper’s contributory negligence. The case went to the jury on the theory of comparative negligence.

As the case was tried before the jury, the major points of contention were whether the hole was something other than a wide space between the boards and whether a hole big enough for Piper’s foot to go in would also be obvious enough so that she could have avoided it by exercising due care. Defense witnesses denied seeing any hole at any time. Piper described a hole several inches square with no ragged edges but big enough to hold her whole foot. Piper marked on photographs of typical pallets the point where she thought the hole was. She demonstrated to the jury how she stepped onto the pallet and turned to get off. The defense argued that in stepping two feet into the pallet and making a quarter turn, Piper could not have stepped on the front left of the pallet where the hole was said to be.

During the instruction conference, each party objected to the other’s statement of the law defining the duty owed a business invitee by a property owner. Appellant objected to plaintiff’s instruction No. 16, based on Illinois Pattern Jury Instructions (IPI), Civil, No. A20.01 (1981 Supp.), which stated that Moran’s could be found liable if the jury found it was negligent in “failing to exercise due care and caution for the plaintiff’s safety” in maintaining a pallet with an open space on top, failing to move cases forward, or failing to inspect for defects. The court refused to give appellant’s instructions Nos. 1 and 6, which stated that the plaintiff, as a business invitee, had the responsibility for her own safety and was held to be as aware of “obvious and normal hazards” on the premises as the landowner. Although not objected to by plaintiff, defendant’s instruction No. 2 was withdrawn by the court after plaintiff’s closing argument. It stated that if the condition alleged to be the cause of plaintiff’s injury was not latent or concealed, appellant could expect her to discover and appreciate the risk of the condition. Appellant’s definitions of the duties of landowner and invitee were based on its interpretation of Longnecker v. Illinois Power Co. (1978), 64 Ill. App. 3d 634, 381 N.E.2d 709, rather than pattern instructions. After approximately two hours of deliberation, the jury returned its verdict in favor of Piper and awarded her damages of $31,000. Judgment was entered on the verdict on December 16,1982.

In a post-trial motion filed on January 11, 1983, Moran’s Market sought a judgment in its favor notwithstanding the verdict because plaintiff’s complaint stated no cause of action, that as a matter of law plaintiff had failed to show defendant had time for notice of the defect, had breached a duty or proximately caused plaintiffs injury. In the alternative, appellant contended that it was entitled to a new trial because the verdict was against the manifest weight of the evidence. It also alleged error in the submission of instructions and prejudice because of comments made to jurors by plaintiff’s counsel. The court denied the post-trial motion on March 30, 1983. Notice of appeal was filed on April 28,1983.

Appellant states four issues: (1) whether defendant was free of negligence as a matter of law, (2) whether the fourth amended complaint was insufficient as a matter of law, (3) whether the jury was properly instructed, and (4) whether the verdict was against the manifest weight of the evidence.

With regard to the last of these issues, we would point out that the appellant had a positive duty to support each point made in its appeal with contentions, citation of authorities, and references to pages of the record. If a point is not argued, it is waived and may not be raised in a reply brief, oral argument or petition for rehearing. (87 Ill. 2d R. 341(e)(7).) As it did in the post-trial motion for a new trial, appellant asserts that the verdict is against the manifest weight of the evidence and it is therefore entitled to a new trial, but it offers as argument and authority only a direction to the court to reread what has been said in the preceding 13 pages with regard to another issue. In its brief the single citation to “I.L.R, New Trials §26, p. 28” fails to enlighten us as to its contentions concerning the weight of the evidence. We do not think such a presentation to this court satisfies the rule that appellant marshal and present contentions, authorities, and page references appropriate to the issue. We decline to take up the burden of research and argument and consider the issue waived. Pecora v. Szabo (1982), 109 Ill. App. 3d 824, 441 N.E.2d 360; In re Estate of Kunz (1972), 7 Ill. App. 3d 760, 288 N.E.2d 520.

Appellant’s arguments on the remaining three issues rest almost entirely on its contention that this case must be determined in light of the results of Genaust v. Illinois Power Co. (1976), 62 Ill. 2d 456, 343 N.E.2d 465, and Longnecker v. Illinois Power Co. (1978), 64 Ill. App. 3d 634, 381 N.E.2d 709. In those cases experienced workmen climbed structures to carry out their work and were injured in the process. In Genaust the plaintiff had contracted to build a citizen’s band antenna for the defendant. Electricity from an adjoining property arced to the metal antenna, seriously injuring the plaintiff. The supreme court affirmed the dismissal of plaintiff’s complaint for failure to state a cause of action because the defendant could not be negligent in failing to discover a danger on another’s property and not under his control. When the plaintiff represented himself as competent to build the antenna in the spot near the clearly visible wires, the defendant properly expected plaintiff to recognize and take into account the commonly known dangers of power lines. In Longnecker an experienced lineman, with a duty to inspect the poles he climbed and discretion to refuse to climb if he found a pole unsafe, féll after climbing a rotten pole and unfastening his safety belt. We reversed the trial court’s judgment for the plaintiff because the condition of the pole was obvious and known to the plaintiff. Both cases are based on the proposition that a possessor of land has a duty of reasonable care to a business invitee which does not extend to obvious dangers the invitee would be expected to discover and avoid by his own efforts. This same view was stated in Sepesy v. Archer Daniels Midland Co. (1981), 97 Ill. App. 3d 868, 423 N.E.2d 942, where the landowner was under no duty to protect an experienced truck driver against the obvious and apparent dangers of standing between two trucks on an inclined ramp.

All of these cases state that section 343 of the Restatement (Second) of Torts (1965) is the settled law in Illinois on the liability of a possessor of land to invitees:

“Sec. 343. Dangerous Conditions Known to or Discoverable by Possessor
A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he
(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect them against the danger.” (Restatement (Second) of Torts sec. 343 (1965).)

Section 343 should be read in conjunction with section 343A:

“Sec. 343A. Known or Obvious Dangers
(1) A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.” (Restatement (Second) of Torts sec. 343A (1965).)

From the Restatement and the cases cited above, the appellant abstracted the requirement that the plaintiff could prevail only by pleading and proving a latent defect in the pallet which the appellant failed to correct despite actual or constructive knowledge of it. Adoption of such a view would relieve the landowner of any liability except for latent defects.

The Restatement, however, speaks not of latent conditions but those which are actually known or discoverable “by the [owner’s] exercise of reasonable care.” In none of the cases cited was it decided that proof of a latent defect was necessary to establish the landowner’s liability. In Longnecker the court observed that liability could be based on proof of “a latent or concealed [condition] or [one] existing under circumstances in which it would not be expected to be discovered by the invitee.” (Emphasis added.) (Longnecker v. Illinois Power Co. (1978), 64 Ill. App. 3d 634, 639-40, 381 N.E.2d 709, 714.) In Genaust the complaint failed to state a cause of action in negligence because the landowner could expect the invitee to be aware of power lines which were neither hidden nor concealed. The landowner’s duty was “to discover dangerous conditions on his land” which he could not expect the invitee to discover. (Genaust v. Illinois Power Co. (1976), 62 Ill. 2d 456, 468, 343 N.E.2d 465, 472.) These cases as well as Sepesy turned on the plaintiff’s special competence to see a danger, not on the issue of latency. For this reason, we do not find that Piper’s fourth amended complaint failed to state a cause of action for failing to plead a latent defect in the pallet. Plaintiff alleged that Moran’s Market failed to exercise due care for her safety in maintaining a defective pallet, in failing to move soda forward on the pallet to make it unnecessary for patrons to step up to get cartons, and failing to conduct routine inspections for defects. It appears to us that the complaint alleges appellant’s failure to carry out its duty to use reasonable care to protect its customers against a condition discoverable by its reasonable efforts which customers trying to get soda would not “discover or realize the danger [of], or [would] fail to protect themselves against.” Restatement (Second) of Torts sec. 343 (1965.)

All defense witnesses denied seeing any hold. Nevertheless, appellant appears eager to concede an open and obvious defect in order to shift liability to Piper. It has not been shown that the pallet was so obviously defective prior to Piper’s fall that she stands in a position equivalent to that of the plaintiffs in Genaust, Longnecker and Sepesy. We do not think those cases dictate the result here. On the contrary, this case must be viewed in light of Donoho v. O’Connell’s, Inc. (1958), 13 Ill. 2d 113, 148 N.E.2d 434, and similar slip-and-fall cases. In these cases, the landowner owes an invitee a duty of exercising ordinary care in maintaining the premises in a reasonably safe condition. Liability is imposed if a foreign substance which causes a patron to fall is placed on the premises through the negligence of the owner or his employees. When the plaintiff cannot show how the substance came to be on the premises, he must show that the owner or his servants knew of it or that it was on the premises for a sufficient period to establish constructive notice to the owner of a dangerous condition. If the plaintiff can show that the substance is related to the owner’s business and offer some slight additional evidence, either direct or circumstantial, “from which it could be inferred that it was more likely that defendant or his servants, rather than a customer, dropped the substance *** courts have generally allowed the negligence issue to go to the jury, without requiring defendant’s knowledge or constructive notice.” Donoho v. O’Connell’s, Inc. (1958), 13 Ill. 2d 113, 122, 148 N.E.2d 434, 439.

In Donoho a 56-year-old woman slipped on an onion ring in a restaurant 15 minutes after a busboy had wiped off the tables in the area where the woman fell. The woman was the only one to testify about the onion ring. The owner and his employees denied seeing any food or moisture on the floor. Testimony showed that the busboy’s cleaning methods could have allowed food to drop to the floor. From such circumstantial evidence the jury could have “reasonably inferred that it was more likely that the onion ring was on the floor through the act of defendant’s servant, than by the acts of any customer.” (Donoho v. O’Connell’s, Inc. (1958), 13 Ill. 2d 113, 125, 148 N.E.2d 434, 441; Wolfe v. Bertrand Bowling Lanes, Inc. (1976), 39 Ill. App. 3d 919, 351 N.E.2d 313; Mraz v. Jewel Tea Co. (1970), 121 Ill. App. 2d 209, 257 N.E.2d 548.) In Mraz a customer fell on a lettuce leaf in the checkout lane of a grocery store. Testimony that it was customary for produce boxes to be brought up to the checkout counters for packaging groceries made it more probable that employees rather than customers had caused the lettuce leaf to be on the floor. Even though store employees testified that the checkout lane had been swept just before the accident, the court believed it could be reasonably inferred that the sweeping had been done negligently.

In the present case, there is no question but that the pallet was an integral part of Moran’s marketing scheme and that it was placed in the store by the appellant’s own employees. The store developed precautionary policies of supervision and management which took into account problems arising from the use of pallets. All employees, including the manager, were expected to use their spare time to keep products on the front of the pallets. Cashiers could ring a bell to summon help for customers who requested it, and extra help was hired for busy Saturdays. Damaged pallets were to be removed from the store. However, on the busy Saturday Piper fell, she saw no one to help her to get root beer from two feet back on a pallet which had last been restacked hours before the accident. No evidence was offered to show that any employee gave any attention to the pallet after Darnell worked on it.

From this circumstantial evidence and the fact of the pallet’s relation to Moran’s business, it might reasonably be inferred that the condition of the pallet was more probably due to the negligence of employees rather than unidentified third parties. It was not necessary for Piper to establish Moran’s actual or constructive notice of a defect. The issue of Moran’s negligence properly went to the jury whose duty it was to judge the credibility of witnesses and weigh conflicting evidence. (Blake v. Dickinson (1975), 31 Ill. App. 3d 379, 332 N.E.2d 575.) In finding for the plaintiff, the jury must have found that appellant breached a duty of reasonable care to Piper and that her injuries were proximately caused by that breach.

Moran’s asks us to decide whether, as a matter of law, Piper’s evidence established its negligence. The standard for determining negligence as a matter of law is the same as for determining whether Moran’s has the right to a judgment notwithstanding the verdict. (Papadatos v. National Tea Co. (1974), 21 Ill. App. 3d 616, 316 N.E.2d 83; Burns v. West Chemical Products, Inc. (1973), 12 Ill. App. 3d 947, 299 N.E.2d 455.) The standard was established in Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504, 513-14:

“In our judgment 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.”

Applying the Pedrick test, we cannot say that when all the evidence is viewed most favorably to Piper that it so overwhelmingly favors Moran’s that no verdict against it could ever stand.

Finally, appellant contends that the trial court erred in submitting plaintiff’s instruction No. 16 on negligence, which was framed in accord with IPI Civil No. A20.01 (1981 Supp.). Instruction No. 16 stated in part:

“The plaintiff claims that she was injured and sustained damage, and that the defendant was negligent in failing to exercise due care and caution for the plaintiff’s safety in the following respects:
It maintained a wooden pallet on which soda cases were set upon that had an open space on the top side resulting from a missing piece of the pallet;
It failed to move forward soda cases set upon wooden pallets to enable customers, including the plaintiff, to obtain soda from the aisle without having to step on said pallets;
It failed to conduct inspections for defects to wooden pallets upon which grocery products were set.
The plaintiff further claims that one or more of the foregoing
was a proximate cause of her injuries.
* * *"

The trial court had a duty to submit an Illinois Pattern Jury Instruction applicable to a civil case “unless the court determine^] that it [did] not accurately state the law.” (87 Ill. 2d R. 239(a).) We believe IPI Civil No. A20.01 (1981 Supp.) expresses the standard of care due to a business invitee articulated in Donoho v. O’Connell’s, Inc. (1958), 13 Ill. 2d 113, 148 N.E.2d 434, and find that the trial court correctly submitted the plaintiff’s instruction No. 16. In refusing defendant’s instructions Nos. 1, 2, 5 and 6, the court determined that they were nonpattern instructions which incorrectly stated the law applicable to the facts of the case. All of these instructions were based on Longnecker v. Illinois Power Co. (1978), 64 Ill. App. 3d 634, 381 N.E.2d 709, which we consider inapplicable to the facts of this case.

Appellant argues that it was prejudiced in its closing argument by the court’s withdrawal on its own motion of defendant’s instruction No. 2 after the instruction conference concluded without any objection by the plaintiff. It is not error to withdraw an erroneous instruction even after it has been read to the jury, providing the jury is informed of the withdrawal. (Osmon v. Bellon Construction Co. (1964), 53 Ill. App. 2d 67, 202 N.E.2d 341.) Defendant’s instruction No. 2 stated that:

“If the condition which plaintiff alleges caused her injury was not a latent or concealed one, it was one which defendant could expect her to discover and appreciate the degree of risk arising therefrom. Whether the condition was a latent or concealed one is for you to decide. ”

As we have previously explained, the existence of a latent or concealed defect is not the correct test for negligence in a slip-and-fall case. The trial court correctly withdrew the instruction before it was read to the jury. The withdrawal came after the instruction conference in which defense counsel had been informed that the court did not consider instructions based on Longnecker to be correct expressions of the law. We can see no prejudice to appellant’s defense.

For the foregoing reasons, we affirm the judgment of the circuit court of St. Clair County.

Affirmed.

WELCH, P.J., and KASSERMAN, J., concur.


author: JUSTICE HARRISON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID PARKER, Defendant-Appellant.
    Fifth District
    No. 82—488
    Opinion filed January 11, 1984.

      Randy E. Blue and Patricia McMeen, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    John Baricevic, State’s Attorney, of Belleville (Stephen E. Norris, of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE HARRISON

delivered the opinion of the court:

By virtue of an information filed in the circuit court of St. Clair County, defendant David Parker was charged with the unlawful use of a weapon in violation of sections 24 — l(a)(10) and 24 — 1(b) of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, pars. 24 — l(a)(10), 24 — 1(b)). The information alleged that defendant, within five years of his release from the penitentiary on a robbery conviction, knowingly possessed a firearm within the corporate limits of the city of East St. Louis, at a time when he was not on his own land, in his own abode, or at a fixed place of business. Following a jury trial, defendant was found guilty of the offense, and was subsequently sentenced to three years’ imprisonment. On appeal, defendant alleges that the trial court erred in failing to instruct the jury on the defense of necessity. We affirm.

The evidence adduced at the trial established that defendant shot Melvin Williams outside of an East St. Louis tavern following an argument between the two men. Anthony Wisham testified for the State that he had given the gun used in the shooting to defendant about one week prior to the time the shooting occurred. While at the tavern on the night of the shooting, Wisham did not see defendant with the gun, and did not know that defendant had the gun until the shooting took place outside. According to Wisham, Williams threatened to pistol whip defendant in the restroom of the tavern. Defendant subsequently left the restroom, picked up his jacket from a chair, went over to the bar, and then walked outside. Williams walked out behind defendant, and the shooting took place thereafter. Wisham indicated that Williams had his hand inside of his coat as if he had a pistol just prior to the shooting.

Additional testimony offered by the State established that defendant was convicted of robbery in 1978, was released from prison in 1979, and did not live in, work in or own the tavern where the events in question occurred. Michael Bragg testified that he had seen , defendant in possession of the weapon about one month before the shooting.

The defense called two witnesses, Ricky Clayton and Michael Hodges. Clayton testified that he removed a gun from the hand of Williams after Williams had been shot. The gun was cocked, and Clayton shot himself in the leg. Michael Hodges testified that he was in the tavern on the night of the incident, and saw defendant and Williams engaged in a dice game in the bathroom. According to Hodges, Williams accused defendant of having trick dice, and then pulled a gun on defendant. Hodges did not see defendant with a gun in the bathroom. Hodges left the bar with Williams, defendant, Wisham and others, and observed the shooting. At the time that defendant shot Williams, according to Hodges, Williams was in “a position where he had his hand on his gun.”

At an instruction conference held at the close of the State’s evidence, defense counsel tendered an instruction on the affirmative defense of necessity. The court refused to give the instruction. Following the presentation of evidence for the defense, counsel again tendered the instruction, and the court again refused to give it. The jury returned a verdict of guilty. A post-trial motion filed by defense counsel was denied, and defendant was subsequently sentenced to three years’ imprisonment.

On appeal, defendant argues that the court erred in not giving the requested necessity instruction. In order for a defendant to be entitled to such an instruction, the record must present “some evidence” that he was without blame in occasioning or developing the situation leading to his otherwise unlawful conduct, and that he reasonably believed that such conduct was necessary to avoid a public or private injury greater than the injury which might reasonably have resulted from his own conduct. (Ill. Rev. Stat. 1981, ch. 38, par. 7 — 13; People v. Perez (1981), 97 Ill. App. 3d 278, 280, 422 N.E.2d 945.) In this case, defendant takes the position that he was only shown to have been in possession of the gun at the immediate time of the shooting, and that it was necessary for him to possess the gun at that time in order to prevent a greater injury; namely, the infliction of harm upon him by the victim. As pointed out by the State, however, this characterization of the evidence rests upon the supposition that defendant did not acquire the gun until just before the shooting, and this supposition finds no support in the record. Both Anthony Wisham and Michael Bragg testified to the effect that the gun was in defendant’s possession at least a week before the shooting, and the fact that Michael Hodges did not see the gun in defendant’s possession in the bathroom does not indicate that defendant did not come into his initial possession of the gun until later. Indeed, the only evidence concerning the change in the nature of the property possessed by defendant between the dice game and the shooting was Wisham’s testimony that defendant picked up his own jacket before exiting the tavern. Under these circumstances, there was not “some evidence” tending to show that defendant came into possession of the gun only at the time he needed to protect himself from Williams, and the necessity instruction was properly refused.

For the foregoing reasons, the judgment of the circuit court of St. Clair County is affirmed.

Affirmed.

WELCH, P.J., and EARNS, J., concur.


text:
    GERALD DeGERLIA, Plaintiff-Appellee, v. FIRST BANK AND TRUST COMPANY et al., Defendants-Appellants.
    Fifth District
    No. 82—742
    Opinion filed February 8, 1984.

      Cornelius Thomas Ducey, Jr., of Ducey, Feder & Ducey, Ltd., of Belleville, for appellants.
    Robert S. Forbes, of Phillip J. Kardis, P.C., of Alton, for appellee.
   JUSTICE KARNS

delivered the opinion of the court:

The First Bank and Trust Co., Mt. Vernon, Illinois, and the Du-Quoin State Fair Association, Inc., were granted leave to appeal from the order of the circuit court of Madison County denying their motion for a change of venue in a personal injury suit filed by Gerald A. DeGerlia. 87 Ill. 2d R. 306(a)(l)(iv).

DeGerlia went to the DuQuoin State Fairgrounds in Perry County on July 27, 1980, to see motorcycle races on the fairground racetrack. The scheduled races were canceled because of bad weather, but De-Gerlia stayed on the grounds to watch impromptu motorcycle drag races. A motorcycle hit him and caused multiple injuries. On August 11, 1981, he filed a two-count complaint alleging the negligence of Saad Jabr and the First Bank and Trust Co. (the bank) and claiming damages in excess of $15,000. Jabr represented Usaprop, Ltd. N.V., the sole beneficiary of a land trust of which the fairgrounds were an asset. The bank was the trustee of the land trust. An amended complaint filed on September 17, 1981, named the DuQuoin State Fair Association, Inc. (the Fair Association) as a third defendant.

Jabr filed a special appearance and moved that service on him be quashed because it had been made on a party not authorized to accept service on his behalf. The motion was granted with leave to the plaintiff to request an alias summons. The record does not show that a further effort was made to serve process on Jabr.

On September 22, 1981, the bank and the Fair Association moved to dismiss or transfer the cause of action to Perry County because the accident occurred there and neither defendant had an office or did business outside Perry County. The court took the motion under advisement, granting DeGerlia 30 days for discovery. The bank and Fair Association filed affidavits to the effect that neither did business outside Perry County, the bank further declaring that it held bare legal title to the premises in Perry County and conducted no transactions involving the property outside .that county. At the end of a 30-day extension of the discovery period, the court heard argument and denied the defendants’ motion.

Discovery conducted by DeGerlia revealed that Usaprop, Ltd. N.V., the sole beneficiary of the land trust, had the power of direction and management of the trust. At Usaprop’s direction through its attorney, Jabr, the bank leased the DuQuoin Fairgrounds to Sabr Aeronautics, Inc., of Carbondale which then contracted with the DuQuoin State Fair Association, Inc. to operate various events on the fairgrounds. The events included the DuQuoin State Fair, a rodeo, automobile races, and the motorcycle race DeGerlia had planned to attend.

The Fair Association sometimes cooperated with sponsors in promoting its events. In 1980 it shared responsibility with a Kentucky promoter of motorcycle races, but there was no evidence of activity in Madison County. In 1981, Curt Greene, director of public relations for the Fair Association, wrote to Ralph C. Evans, president of Wetterau Food Services in Scott City, Missouri, proposing a promotional arrangement for a three-day rodeo. Wetterau’s IGA stores in Missouri and Illinois would participate as “exclusive ticket outlets for this event” and would retain a percentage of the price of each ticket sold. The Fair Association was to produce and distribute various promotional materials as well as monitor the sales at each participating store. After the rodeo, the Fair Association sent to Wetterau its final analysis of the ticket sales broken down according to the towns in which participating stores were located. No town in Madison County was listed.

On October 15, 1981, William W. Tarr, financial vice-president of the Fair Association, was deposed with regard to the association’s activities in Madison County. In an earlier affidavit he had sworn that the Fair Association did no business in Madison County. At the deposition he was sure an IGA store in Madison County participated in ticket sales for the rodeo but could say no more than that the name Alton rang a bell. He was uncertain where Madison County was or whether it fell in the 70-75 mile radius of DuQuoin from which most of the fair’s business came. He did not personally correspond with any store in Alton and did not know if any of the fair’s concessionaires came from Madison County. The Fair Association’s use of Famous-Barr’s Ticket Master service to sell tickets was limited to the St. Louis, Belleville and Springfield, Illinois stores, none of which are in Madison County.

The only issue is whether the trial court erred in denying defendants’ motion to change venue because neither was doing business in Madison County. The court was in error, and we reverse its order. Venue is properly fixed in the county where the cause of action arose or where any defendant joined in good faith resides. (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 101.) A corporate defendant “is a resident of any county in which it has its registered office or other office or is doing business.” Ill. Rev. Stat. 1981, ch. 110, par. 2 — 102.

The cause of action arose in Perry County, and neither defendant maintains an office outside that county. Thus, venue will lie in Madison County only if it can be shown that the bank or the Fair Association is doing business there. For purposes of venue, the defendant must be found to “be conducting its usual and customary business within the county in which venue is sought.” (Baltimore & Ohio R.R. Co. v. Mosele (1977), 67 Ill. 2d 321, 329, 368 N.E.2d 88, 92.) It is not enough that the defendant make purchases or provide services incidental to its customary business. Hartung v. Central Illinois Public Service Co. (1982), 110 Ill. App. 3d 816, 443 N.E.2d 16; Blakey v. Commonwealth Edison Co. (1977), 52 Ill. App. 3d 454, 367 N.E.2d 529.

The record before us is bare of any evidence that the bank acting as trustee carried on any of its trust duties or conducted any transactions involving the trust in Madison County. Tarr, vice-president of the Fair Association, thought he remembered that an IGA store in Alton, Madison County, participated in the joint promotion of the rodeo at the fairgrounds. None of the documents produced in discovery support his memory. The final accounting by the Fair Association to Wetterau listed no Madison County store. Advertisements for a 1980 motorcycle race were placed in the Evansville Courier and Belle-ville News-Democrat, which may have found their way to Madison County. We see in these facts no support for the trial court’s conclusion that venue was properly fixed in Madison County.

We note, however, that even if it had been shown that the promotional activities had extended to Madison County, they would constitute no more than mere solicitation of business and would therefore be an insufficient basis for fixing venue there. Baltimore & Ohio R.R. Co. v. Mosele (1977), 67 Ill. 2d 321, 368 N.E.2d 88.

For the foregoing reasons, the judgment of the circuit court of Madison County denying defendants’ motion for transfer of venue is reversed and the cause is remanded with directions to enter an order transferring the cause to a county of proper venue.

Reversed and remanded with directions.

WELCH, P.J., and KASSERMAN, J., concur.


author: JUSTICE JONES

text:
      In re B.K. et al., Minors — (The People of the State of Illinois, Petitioner-Appellee, v. Barbara Hogue et al., Respondents-Appellants).
    Fifth District
    No. 82—136
    Opinion filed January 12, 1984.
    Rehearing denied February 7, 1984.

      J. Ray Wood, of Benton, for appellants.
    Don W. Weber, State’s Attorney, of Edwardsville (Stephen E. Norris and Raymond F. Buckley, Jr., both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE JONES

delivered the opinion of the court:

The defendant, Barbara Hogue, appeals from an order of the trial court which found that her children were neglected minors. The order also found that defendant was an unfit parent and provided that the minor children be placed in the guardianship of Anthony Veronico, Guardianship Administrator of the Department of Children and Family Services of the State of Illinois, with authority to place the children as deemed in their best interests.

Initially, defendant contends that the finding of her unfitness was improper because the petition does not allege that she is unfit. We must agree.

In a proceeding to have a parent declared unfit, due process requires that the petition allege that the parent is unfit and set forth with particularity the specific grounds that serve as the basis for such assertion. (In re Westland (1976), 48 Ill. App. 3d 172, 362 N.E.2d 1153.) Neither of the necessary allegations were present in the case at bar since the petitions only alleged, in pertinent part, that “said minor is a neglected minor whose environment is injurious to her welfare.” The requirements of an assertion of parental unfitness and supporting allegations of the grounds of such unfitness are material and are essential elements of a petition to have parents declared unfit. Although no objection was made to the pleading deficiencies in the trial court by the defendant, the waiver theory cannot be invoked because it is applicable only to formal and insubstantial defects. Failure to state a cause of action cannot be waived and can be raised for the first time on appeal. In re Rauch (1977), 45 Ill. App. 3d 784, 359 N.E.2d 894; In re Dragoo (1981), 96 Ill. App. 3d 1104, 422 N.E.2d 263.

This court is aware that a waiver of an express allegation of unfitness in a petition may occur if that issue is injected into the proceedings by the parties and actually tried at the hearing. Accordingly, we have examined the transcript of the adjudicatory hearing with the express view of determining whether the issue of unfitness of the mother was tried, and we have found that it was not. The only reference at the hearing to the unfitness of the mother occurred during closing argument when the assistant State’s Attorney asked the court for an order finding the mother unfit. Although some evidence was introduced at the adjudicatory hearing that indicated the mother’s unfitness, it will not suffice to constitute a waiver of the failure to plead unfitness since that evidence was properly received as bearing on the issue of the neglect of the children. The result is that the mother had no notice or knowledge that her unfitness was being tried and consequently had no opportunity to present evidence of her own on that issue to refute the State’s evidence that had a bearing on her unfitness.

This court is cognizant of In re Smith (1981), 95 Ill. App. 3d 373, 420 N.E.2d 200, not cited by the parties, in which the appellate court stated that the statutory requirements in a petition to adjudicate a child as neglected do not require allegations of parental unfitness. While ordinarily it is true that the petition to adjudicate the child as neglected does not require allegations of parental fitness, such allegation is necessary, as discussed above, when the State prays that the court make a finding of unfitness. In the Smith case the court found neglect due to child abuse and removed the child from the custody of her parents. Subsequently, a supplemental petition was filed which alleged that the parents had been previously found to be unfit, although a reading of the opinion suggests that no such finding was previously made.. After hearing additional evidence, the Smith court ruled that the supplemental petition to terminate parental rights did sufficiently inject the issue of the unfitness of the parents so as to justify a finding of unfitness. (95 Ill. App. 3d 373, 376, 420 N.E.2d 200, 202.) In In re Dragoo the court held that specific acts or omissions need not be alleged in a neglect petition so long as the specific statutory grounds for unfitness were stated. (96 Ill. App. 3d 1104, 1107, 422 N.E.2d 263, 265.) But in the case at bar, no petition alleged or referred to the unfitness of the mother. For the above reasons the finding of unfitness of the mother is vacated, and the cause is remanded for further pleadings and proceedings.

Defendant’s second contention of error is that the State did not prove by clear and convincing evidence that defendant had neglected her children. The record on appeal contains evidence that, if believed by the trier of fact, would establish that Harlan Hogue, defendant’s husband, and defendant’s cousin, Alan McGriffin, sexually abused all the children, male and female. Evidence was also presented that Harlan Hogue encouraged the children, ages 11, 12, 14 and 15, to have intercourse among themselves which did, in fact, occur. Hogue also set one child’s hair on fire in order to scare that child. As a result of this abuse and their environment, the children exhibited serious self-destructive tendencies and personality problems. On at least two occasions, defendant became aware of the sexual abuse but failed to take steps to rectify the situation permanently.

Under the Juvenile Court Act (Ill. Rev. Stat. 1981, ch. 37, par. 701 — 1 et seq.) a child is neglected if his or her support, educational, medical or “other remedial” needs are not met or if the child’s “environment is injurious to his or her welfare.” (Ill. Rev. Stat. 1981, ch. 37, pars. 702 — 4(1), (2)(b).) A determination of neglect, the factual basis of which necessarily varies with each case, lies within the province of the circuit court. In general, neglect is the failure to exercise the care that the circumstances justly demand. It embraces unintentional as well as wilful disregard of duty. Given the varying circumstances of neglect cases, the trial court must have broad discretion to reach a just determination. Only where there has been an abuse of discretion, or the judgment has been against the manifest weight of the evidence, should the decision be disturbed on appeal. (In re Stilley (1977), 66 Ill. 2d 515, 363 N.E.2d 820.) In order to find that a parent has neglected a child, it is not necessary to establish that the parent participated in the acts because a parent has an obligation to protect a child from harm. (In re Holmes (1975), 28 Ill. App. 3d 104, 328 N.E.2d 35.) In the case before us, the evidence concerning the adjudication of the children as neglected by reason of sexual and psychology cal abuse includes sufficient grounds for making the children wards of the court and therefore subject to the entire range of dispositions available to the court. (Ill. Rev. Stat. 1981, ch. 38, par. 701 — 18.) In fact, such a finding precludes returning the minor to the parents responsible for the abuse until a fitness hearing has been held. Ill. Rev. Stat. 1981, ch. 37, par. 705-2(lXd); In re D.M.C. (1982), 107 Ill. App. 3d 902, 438 N.E.2d 254.

In furtherance of the dispositional order, the court entered a protective order in which defendant was prohibited from contacting or attempting to contact the children. The order did not set a date on which the order would terminate. Defendant contends that the court exceeded its authority in prohibiting all contact between the defendant and the children and that the protective order should have been for a definite period of time. Because the cause is remanded for further proceedings and pleading due to the vacation of the finding of unfitness, this court need not discuss the issues raised by defendant in this argument.

Affirmed in part, vacated in part, and remanded.

WELCH, P.J., and KASSERMAN, J., concur.