author: PRESIDING JUSTICE EARNS

text:
    LANNY WHITEHEAD, Plaintiff-Appellee, v. FLEET TOWING COMPANY, Defendant.—(English and American Insurance Co. et al., Garnishees-Appellants.)
    Fifth District
    No. 82—162
    Opinion filed November 9, 1982.
    Rehearing denied December 6, 1982.

      Lawrence O. Taliana and Gordon R. Broom, both of Burroughs, Simpson, Wilson, Hepler, Broom & McCarthy, of Edwardsville, for appellants.
    Deborah S. Forman, of Lakin, Herndon & Peel, P.C., of East Alton, for appellee.
   PRESIDING JUSTICE EARNS

delivered the opinion of the court:

This garnishment action was brought by Lanny Whitehead, plaintiff, to collect a personal injury judgment from insurance policies issued by defendants, Lloyds of London, English and American Insurance Co. and Orion Insurance Co. The trial court entered judgment in favor of plaintiff for $76,000 plus interest, from which defendants-garnishees appeal.

Fleet Towing Company, a maritime company doing business on the Mississippi River in 1972, hired the brokerage firm of Lawton-Byrne-Bruner of St. Louis, Missouri, to procure liability insurance for two of its towboats. Lawton-Byrne-Bruner subsequently referred the coverage to another broker, Puritan Marine Insurance Co. of Boston. Puritan Marine decided to have the insurance coverage written in three layers. The primary layer was to provide coverage for the first $50,000 of any loss. The second layer was to provide coverage for $100,000 in excess of the first $50,000 and the third layer was to provide for coverage of $850,000 in excess of $150,000 of any one loss.

Puritan Marine referred the securing of the excess insurance to E. Bell Associates, a New York broker, which in turn referred the business to John Holman & Sons, Ltd., in London. In the course of negotiations for the excess insurance, E. Bell, by telex, advised John Holman & Sons, Ltd., that the first $50,000 of coverage was placed with Glacier Insurance Company. John Holman & Sons, Ltd., in turn, approached various London insurers and placed the excess coverage with defendants-garnishees.

Plaintiff was injured on October 4, 1972, during the effective dates of the excess insurance policies. During the course of litigation, Fleet Towing discovered that primary insurance was never procured by Puritan Marine. Instead, a certificate of insurance was found to have been issued by Puritan Marine showing that primary coverage of $50,000 was placed with Standard Marine Insurance Co., Ltd. No insurance policy, however, was ever issued.

Prior to trial, plaintiff’s attorney made a demand to settle the case for $70,000 which was communicated to a representative of the excess carriers. In June 1977, the excess carriers authorized an expenditure of $20,000 as their contribution to settle the case. On the first day of trial, December 12, 1977, the demand to settle was withdrawn. A jury trial was held in Madison County and a judgment was rendered on December 19, 1977, in favor of Lanny Whitehead and against Fleet Towing in the sum of $126,000.

In August 1978, Fleet Towing filed a lawsuit in Wayne County, Missouri, against its broker, Lawton-Byme-Bruner, seeking monetary damages for the broker’s failure to procure primary insurance. Lanny Whitehead intervened in that suit and received $25,000 in settlement and in return signed a release. A partial satisfaction of judgment was filed in this action for $50,000 of the judgment obtained against Fleet Towing.

Subsequently, Utah Home Insurance Co. commenced a lawsuit against Fleet Towing and its creditors in the United States District Court in St. Louis, Missouri. Utah Home Insurance Co. had issued a hull insurance policy in the amount of $250,000 on one of the towboats owned by Fleet Towing, which was later destroyed. Numerous creditors claimed an interest in the insurance proceeds, and in order to resolve the claims, Utah Home Insurance Co., by way of inter-pleading, tendered its policy limits into the Federal Court. On June 20, 1979, Lanny Whitehead intervened in that proceeding asserting his Madison County judgment as a lien against the insurance proceeds. Judgment was entered in the Federal Court based on affidavits filed on behalf of Lanny Whitehead that $76,000 remained unsatisfied on the Madison County judgment. The court then distributed to Whitehead the sum of $24,248.74 as his pro rata share of the insurance proceeds.

Whitehead filed this garnishment action in Madison County, Illinois, against the excess insurance carriers alleging that $76,000 plus interest remained unpaid on his judgment. The court ruled in favor of Whitehead, plaintiff, and against the excess insurers, defendants-garnishees.

On appeal, defendants-garnishees (hereinafter garnishees) maintain that they are not liable on the excess insurance policy and assert three arguments in support thereof. First, garnishees contend that plaintiff signed a release which releaséd them from liability. Second, they maintain that Fleet Towing’s failure to secure primary insurance constituted either a breach of warranty or a material misrepresentation which voided their potential liability on the excess policies. Third, garnishees argue that plaintiff’s acceptance of $25,000 for partial satisfaction of $50,000 voids their obligation under the excess policies.

Garnishee’s first contention is that the release signed by plaintiff was a general release which absolved them from liability. Plaintiff, on the other hand, argues that the release is more limited and does not discharge the excess insurance carriers in the garnishment action.

The dispute regarding the scope of plaintiff’s release stems in part from the fact that two distinct releases were offered into evidence. Though both releases bear plaintiff’s signature and are dated May 11, 1979, their terms differ in some significant respects. One release, marked as plaintiff’s exhibit 7, is a four-page long instrument which bears the Madison County caption of this proceeding. This release, which is obviously a comprehensive and carefully drafted document, purports to release only those persons and firms liable for the first $50,000 of the judgment while reserving the right to proceed for the remainder of the judgment against Fleet Towing and its excess carriers. The other release, by contrast, is a simple one-page document which by its terms relates only to the allegations and issues made up in case No. C — 66—76 in the circuit court of Wayne County, Missouri, and does not include any reservation of rights. Despite this discrepancy, plaintiff fails to demonstrate any relation between the two releases even though he cites both in his brief. This omission, we believe, suggests that the more complex instrument was executed by plaintiff in anticipation of future litigation. Our discussion of plaintiff’s release, henceforth, will be limited to the second release, marked as defendant’s exhibit 4. As the releases are inconsistent, we are obliged to give effect to the general release as it is not claimed that it was executed under any mistake of law or fact.

A release, is a contract whereby a party abandons a claim to a person against whom that claim exists. (Murphy v. S-M Delaware, Inc. (1981), 95 Ill. App. 3d 562, 420 N.E.2d 456.) The intention of the parties controls the scope and effect of the release, and such intent is discerned from the language used and the circumstances of the transaction. LaGrange Federal Savings & Loan Association v. Rock River Corp. (1981), 97 Ill. App. 3d 712, 423 N.E.2d 496.

The release at issue states, in pertinent part, as follows:

“*** I, Lanny Whitehead, for and in consideration of the sum of Twenty-five Thousand and 00/100 ($25,000.00) Dollars *** do forever Release and Discharge Fleet Towing Company, Inc., a corporation, Lucas & Murphy, Attorneys at Law, St. Louis, Missouri, Lawton-Byrne-Bruner Insurance Agency Company, a corporation, and The St. Paul Fire & Marine Insurance Companies, their heirs, executors, administrators and all firms, corporations and persons on their behalf liable, from all claims, demands, damages, actions or causes of action arising from or growing out of those allegations and issues made up in Case No. C — 66—76, presently on file in the Circuit Court of Wayne County, Missouri ***.”

Garnishees contend that this release is a general release because it releases Fleet Towing and any person, firm or corporation liable in its stead. Accordingly, garnishees maintain that by virtue of this release plaintiff released garnishees, the excess insurers of Fleet Towing. Although the release is couched in language normally found in general releases, we cannot accept garnishee’s construction. Under Illinois law, when an instrument contains recitals of, or other reference to, specific claims and also words of general release, the words of general release are limited to the particular claim to which reference is made. (Gladinus v. Laughlin (1977), 51 Ill. App. 3d 694, 366 N.E.2d 430.) The specific reference to the Wayne County, Missouri, case, we believe, was an attempt to limit the effect of the release and therefore should not be construed to restrict plaintiff’s rights in this separate and distinct garnishment action.

In addition, plaintiff contends that the release is ineffective because he was a seaman and was unaware of the existence of the excess carriers. We believe that this contention is without merit and need not be addressed.

Garnishees’ second contention is that they are not obligated to pay the proceeds of the excess insurance because of the insured’s failure to procure primary insurance. Garnishees maintain that this omission constituted either a breach of warranty or a misrepresentation which relieved them of liability under the policy. There is no suggestion that any question exists as to whether in the procurement of insurance K. Bell Associates and John Holman & Sons, Ltd., were agents or subagents of Fleet Towing or Lawton-Byrne-Bruner and therefore garnishees cannot be held at fault in relying on representations made to them on behalf of the insured.

A warranty in insurance enters into and is part of the contract, and must be literally true to permit a recovery on the policy while a representation is not part of the contract but an inducement thereto. A representation must relate to a material matter, and is only required to be substantially true. (Spence v. Central Accident Insurance Co. (1908), 236 Ill. 444, 86 N.E.104.) Although garnishees present persuasive arguments as to whether the insured’s omission was a misrepresentation or breach of warranty, we do not believe it is necessary to make such a distinction in the present case. In either instance, our conclusion would be the same; that is, the failure to obtain primary insurance negated any duty of garnishees to honor the excess insurance coverage.

Primary insurance coverage is insurance coverage whereby, under the terms of the policy, liability attaches immediately upon the happening of the occurrence that gives rise to liability. Primary insurers generally have the primary duty of defense. Excess or secondary coverage is coverage whereby, under the terms of the policy, liability attaches only after a predetermined amount of primary coverage has been exhausted. A second insurer thus greatly reduces his risk of loss. This reduced risk is reflected in the cost of the policy. Olympic Insurance Co. v. Employers Surplus Lines Insurance Co. (1981), 126 Cal. App. 3d 593, 178 Cal. Rptr. 908.

The established manner of operations of the underwriters at Lloyds of London is well known in the insurance trade and is discussed at length in Edinburgh Assurance Co. v. R. L. Burns Corp. (C.D. Cal. 1979), 479 E Supp. 138. Lloyds has no facilities in this country for investigating and adjusting losses and for such services relies on domestic companies. The domestic companies are required by warranties in the insurance policies to carry part of the risk and if these domestic companies are responsible for a loss, then Lloyds is likewise responsible. Millers’ National Insurance Co. v. Wichita Flour Mills Co. (10th Cir. 1958), 257 F.2d 93, 104.

Although there are no cases on point in Illinois, there is authority for the proposition that an excess or secondary policy will not come into operation in the absence of primary coverage. Excess coverage clauses in liability policies can only be obtained when there is other primary coverage available. (Mid-Century Insurance Exchange v. State Farm Mutual Automobile Insurance Co. (1981), 98 Ill. App. 3d 493, 424 N.E.2d 686.) Until such time as the limits of primary insurance coverage are exhausted, secondary coverage does not provide any collectible insurance. Farmers Automobile Insurance Association v. Iowa Mutual Insurance Co. (1966), 77 Ill. App. 2d 172, 221 N.E.2d 795.

When the primary insurance does not exist, as in the present case, the excess carrier is exposed to greater risks than were originally contemplated. Furthermore, because the excess carriers were unaware that there was no primary insurance, the increased risks were not reflected in the cost of insurance coverage. We believe that the insured’s failure to procure primary coverage is such a material defect that regardless of whether a warranty or misrepresentation theory is pursued, the garnishees cannot be held liable on the excess insurance policy. Consequently, we find that the trial court erred in ordering garnishees to pay over to plaintiff the sum of $76,000.

Garnishees’ third contention is that the acceptance of $25,000 for a partial satisfaction of $50,000 by plaintiff voids the obligation of the excess carriers. In support of this argument, garnishees cite United States Fire Insurance Co. v. Lay (7th Cir. 1978), 577 F.2d 421, for the proposition that the excess carrier is not rendered liable unless the underlying primary insurer has actually paid the limits of the policy. The court in that case noted that a settlement for less than the primary limit would remove the incentive of the primary insurer to defend in good faith or to discharge its duty to represent the interests of the excess carrier. Although this argument has merit, we believe that it is not necessary to reach this issue in the case at bar, where primary coverage did not exist.

Finally, plaintiff contends that the equitable doctrine of laches bars garnishees from using defenses to the policies. Plaintiff claims that he was prejudiced by garnishees’ delay in disclaiming liability under the insurance policy, which he maintains was not done until the garnishment action. Though we do not accept this contention, we note that plaintiff did not raise this issue at the trial level and we need not consider it now. Ireland v. Esposito (1981), 93 Ill. App. 3d 584, 417 N.E.2d 738.

For the foregoing reasons, the judgment of the trial court is reversed.

Reversed.

JONES and WELCH, JJ., concur.


source: Caselaw Access Project

author: JUSTICE HOPE

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICKY McGEE, Defendant-Appellant.
    Second District
    No. 81—116
    Opinion filed November 22, 1982.
    Rehearing denied January 4, 1983.
    G. Joseph Weller and John R. Wimmer, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Daniel D. Doyle, State’s Attorney, of Rockford (Phyllis J. Perko and William L. Browers, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE HOPE

delivered the opinion of the court:

Defendant Ricky McGee was convicted, after trial by jury in Winnebago County, of murder (Ill. Rev. Stat. 1979, ch. 38, par. 9 — 1(a)(1)). The information filed alleged that defendant had, with the intent to kill or do bodily harm, killed Thomas L. Barnes without lawful justification by shooting him with a gun. After the jury’s verdict was returned defendant was sentenced to 35 years with the Department of Corrections.

Defendant raises three issues on appeal. His first contention is that he should have been allowed to give the jury a self-defense instruction. He contends there was sufficient evidence of self-defense adduced at trial to warrant such an instruction. His second contention also challenges the jury instructions, alleging it is error to not give an instruction which would have required the State to prove that defendant was not acting under sudden and intense passion resulting from serious provocation by the victim. Defendant’s final contention is that he was denied a fair trial because the prosecutor made an improper closing argument.

On August 25, 1980, Thomas L. Barnes was shot and killed behind the West End Tap in Rockford. The State presented three witnesses that had been at the scene of the crime. All were patrons of the bar. The State’s principal witness, James Finch, was an eyewitness to the murder. Two women who testified had been in the West End Tap at the time of the shooting. Additionally, there was testimony from the doctor who performed the autopsy on the victim. Certain police officers testified that they had reported to the scene of the crime.

The defense presented the testimony of a patron of the bar, William Allen, and the testimony of an investigating police officer.

Testimony of the State’s key witness, James Finch, was as follows: Finch had been living with Barnes and had spent the afternoon with him after Barnes got off work. He testified that Barnes, the victim, was his brother-in-law. After he and Barnes went to look at a car that Barnes wanted to purchase, they went to the West End Tap. While sitting at the bar Finch borrowed some money from Barnes and bought a pack of Salem 100’s. He opened them, took one, and set them on the bar next to where he was sitting. Later, when he looked for them they were gone. Both Finch and one of the women patrons at the bar who testified indicated that the defendant had come into the bar and had been standing next to Finch. When Finch realized the cigarettes were missing he and Barnes went to the front of the bar where defendant was and asked him for the cigarettes. Although Finch saw a pack of Salem’s in defendant’s pocket, defendant denied having Finch’s cigarettes.

Defendant, Barnes and Finch then went out the front door and Finch again asked defendant for his cigarettes. Finch testified that Barnes told defendant to “give up the cigarettes.” Defendant took a package of Salem’s from his pocket, stating, “Here, brother, here goes your cigarettes.” Finch responded by saying, “That’s not a brother, taking my cigarettes.”

After this confrontation Finch and Barnes went back inside the tavern and ordered another beer. Three or four minutes later defendant came back in the bar with a .25-caliber automatic in his hand, approached Barnes and Finch and told them to “come outside.” First, the three or four people who had entered the bar with defendant went out, then the defendant and then Finch. Finch told defendant that if he “wanted to take my life over a package of cigarettes, go ahead.” Defendant did not respond to Finch’s statement. At this point Barnes walked to the back door and defendant addressed him, saying, “Nigger, you is the one who shoved me.” Defendant fired the gun over Finch’s left shoulder and Barnes was hit. Barnes staggered, went back in the tavern and made his way out the front door. Barnes was bleeding from the nose and mouth and Finch laid him on the sidewalk. Barnes later died from the gunshot wound.

On cross-examination Finch reiterated his testimony that he saw defendant re-enter the tavern with a gun in his hand. Defense counsel then read from the record of the preliminary hearing where Finch was asked: “When was the first time that you saw that gun in his hand?” Finch answered: “Out back.”

Finch then stated that when he said “Out back” he was referring to the back door.

Finch’s version of what occurred at the West End Tap is similar to that of two other patrons of the tavern who testified, Marilyn Fields and Linda Malone. Both women had been sitting with Barnes in the tavern prior to the shooting, and Barnes had purchased a beer for them. Fields saw defendant enter the tavern and stand near Barnes at the bar. After about five minutes defendant left; Finch and Barnes followed him out the front door. After a minute or two, she stated, Finch and Barnes came back into the tavern. Two or three minutes passed and defendant re-entered, this time with five men accompanying him. Defendant walked to the back where Fields and the others were sitting and said that he wasn’t going to take nobody pushing him. Fields testified that defendant had a gun in his right hand when he entered the tavern.

Both Fields and Malone testified that Barnes, Finch, the defendant and the men that had come into the tavern with defendant all went out the back door. Fields went to the back door and could hear the men arguing. She saw defendant waving his gun in the air. Barnes started to come back into the tavern, then went back to the door. Fields then heard a “pop” that sounded like a pistol. Barnes came running into the bar bleeding from the mouth. He ran through the tavern and collapsed on the sidewalk in front.

The doctor who performed the autopsy on Barnes, and a police officer who recovered a shell casing from the alley, also testified.

For the defense, Detective Roger Anderson testified and indicated that he had inventoried two pocket knives and a ruler from Barnes’ clothing.

The final witness for the defense was William Allen. His testimony varied widely from that described above. Allen’s testimony is discussed below, together with defendant’s first contention on appeal.

In rebuttal, the State sought to call two Rockford detectives to testify about a statement defendant gave the morning after the murder. The defendant objected and the State, as an offer of proof, summarized their testimony. The detectives had received a call that the defendant was at the police safety building on the morning after the crime. They went to the building and arrested defendant, who told them that he had come to turn himself in so that he could tell his side of the story

After Miranda warnings, defendant made a statement. He said that he had gone into the tavern to buy cigarettes, Salem 100’s, and he got into an argument with Barnes and Finch. They argued outside the tavern about the cigarettes. After they returned inside defendant was struck from behind and knocked to the ground. He then heard shots and took off running. He did not have a gun nor did he see one. After this, the detectives testified in conformity with the offer of proof.

After deliberations the jury returned a verdict of guilty of the murder charge.

Defendant’s first contention on appeal is that the trial court erred by refusing his jury instructions on self-defense. He contends that the testimony of defense witness, William Allen, was sufficient evidence so that the jury may have concluded that defendant, in response to threats from the victim, shot in self-defense.

At trial William Allen testified as follows: He had been sitting across from Marilyn Fields in front of the West End Tavern on the evening in question. Allen did not know Barnes, Barnes’ brother-in-law Finch, or defendant before that evening. He testified that he saw Barnes enter the tavern. He had a few beers and then noticed defendant enter the tavern through the front door, alone. Defendant walked up to the bar in the back where Barnes was sitting. Allen did not hear or see anything happen between Barnes and defendant until he noticed the two men go out the front door. Then, Allen and the man he had been sitting with went outside the front of the tavern. Allen testified that “Barnes had pulled a knife towards Mr. McGee” and he heard Barnes tell defendant McGee, “If you want anything from me, ask me for it.” On cross-examination Allen said what he saw was a carpenter’s knife, with an inch and half hook blade. He indicated this is the type of knife used for cutting linoleum. Defendant then left and Allen returned to his table inside the tavern. Allen testified that 15 or 20 minutes later he noticed defendant come back in the front door and walk to the back of the bar where Barnes was playing pool. Allen did not notice if defendant had anything in his hand. After talking, defendant’s friends went out the back door, then Barnes, and then defendant. The next time Allen saw Barnes, Barnes had come back in the back door and said, “Somebody help me.” Barnes then walked out the front door and fell to the ground.

On cross-examination, the State inquired about a statement that Allen had given to the police the morning after the murder. Allen was asked why he had told the officer he saw Barnes pull a hook blade knife and then go out the front, rather than the back door. Allen indicated that it was his mistake, but he was telling it “[t]he way it happened.” Allen’s first statement did not mention anything about his having gone outside and seeing Barnes push defendant up against the wall. Allen also indicated that neither of the knives recovered from the victim’s clothing, which were admitted as exhibits, was the one he saw Barnes pull out.

Allen’s testimony, together with that of Detective Anderson’s regarding the two pocket knives recovered from Barnes’ clothing, was the sum of evidence adduced by defendant. Defendant contends this was sufficient evidence to support a claim of self-defense and that the jury should have been so instructed.

The jury instruction which defendant sought to have tendered was entitled “Use of Force in Defense of a Person,” and provides:

“A person is justified in the use of force when and to the extent that he reasonably believes that such conduct is necessary to defend [himself] [another] against the imminent use of unlawful force.
However, a person is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent [imminent death or great bodily harm to (himself-another)] or [the commission of a forcible felony].” Illinois Pattern Jury Instructions, Criminal, No. 24.06 (1968) (hereinafter IPI Criminal). See also Ill. Rev. Stat. 1979, ch. 38, par. 7 — 1.

After argument, defendant’s request that the above instruction be given to the jury was denied. In so ruling, the court noted that it found no evidence of self-defense. The court did allow the definitional and issues instructions on voluntary manslaughter to be given. (IPI Criminal Nos. 7.03 and 7.04.) These instructions are based on sudden and intense passion resulting from serious provocation.

After reviewing the record in this case and the pertinent cases we have determined that the trial court was correct in its determination that no self-defense instruction be given to the jury.

As defendant points out, it is well settled that a self-defense instruction should be given when there is some evidence in the record which, if believed by a jury, would support a claim of self-defense. (People v. Lockett (1980), 82 Ill. 2d 546, 551, 413 N.E.2d 378.) In Lockett, which was filed November 18, 1980, the day before the instructions conference in the case at bar, the court stated that both the self-defense and voluntary manslaughter instructions should be given when any evidence is presented showing the defendant’s subjective belief that the use of force was necessary. If that subjective belief is reasonable, the result is justifiable use of force; if the subjective belief is unreasonable, the result is voluntary manslaughter. (82 Ill. 2d 546, 552, citing People v. Joyner (1972), 50 Ill. 2d 302, 306-07, 278 N.E.2d 756.) In Lockett neither the voluntary manslaughter nor self-defense instructions were tendered and defendant was granted a new trial. As indicated above, in the case at bar the defendant did receive a voluntary manslaughter instruction.

Therefore, in light of People v. Lockett (1980), 82 Ill. 2d 546, 413 N.E.2d 378, the issue is whether there was any evidence presented that the defendant had a subjective belief that force was necessary. The judge is not to decide if that belief is reasonable or not. In Lockett the evidence showed that defendant was driving with some friends, and they came upon the victim, whose pushcart was blocking a lane of the street. The victim, standing by the passenger’s side of the car reached into his cart and brought out something brown. Defendant testified that he fired at the victim when the victim started to approach him with a gun. Police found no other weapons at the scene, but did find an empty whiskey bottle, brown in color, at the scene. Based on this factual situation the court determined that defendant was entitled to both a manslaughter and self-defense instruction.

We believe that People v. Lockett (1980), 82 Ill. 2d 546, 413 N.E.2d 378, presented a situation quite different from the case at bar. While there was some evidence in both cases that the victim and the defendant were arguing, there was no evidence in the case before us that defendant’s use of his weapon was “necessary to defend [himself] [another] against the imminent use of unlawful force” or “necessary to prevent [imminent death or great bodily harm to (himself-another)] ***.” (IPI Criminal No. 24.06.) The only evidence shown that defendant had been threatened came from Charles Allen, who indicated that Barnes had threatened the defendant 15 to 20 minutes before he returned to the tavern with the gun. From this evidence the jury could have deduced that Barnes was a violent person, but they could not have viewed this as a situation requiring the use of force to protect oneself. We do not believe Lockett can be interpreted so broadly as to be applicable to the case before us..

Another pertinent case in this area is People v. Foster (1980), 81 Ill. App. 3d 915, 401 N.E.2d 1221, where the defendant was convicted of murder and on appeal urged that it was error for him not to have been allowed a jury instruction on self-defense. Defendant himself testified in Foster that the victim had said something to him and that the tone of the statement made was threatening. Defendant testified that his back was turned to the victim when the victim approached, that he did not see anything in the victim’s hands and that his action in stabbing the victim was almost instantaneous. Further, he indicated he considered the approach of the victim to be an attack and he was afraid of the victim at that time.

Based on this summary of the facts, the court in People v. Foster (1980), 81 Ill. App. 3d 915, 401 N.E.2d 1221, stated that there was sufficient evidence, if believed, to support a finding that defendant had acted in self-defense. The court went on to say “[t]he evidence cited tends to establish not mere threats, as urged by the State, but an immediate advance toward the defendant following those threats by an intoxicated man whom defendant knew to have been violent in the past.” (Emphasis added.) (81 Ill. App. 3d 915, 922.) Again, the situation in the case at bar lacks an imminent threat that the Foster court noted.

Even prior to People v. Lockett (1980), 82 Ill. 2d 546, 413 N.E.2d 378, both self-defense and voluntary manslaughter jury instructions were viewed as companion instructions. (People v. Woodward (1979), 77 Ill. App. 3d 352, 395 N.E.2d 1203.) Woodward was similar to the case at bar in that the voluntary manslaughter instructions were given but the self-defense instruction was not allowed to go to the jury. The court in Woodward stated as follows:

“In People v. Harris (1976), 39 Ill. App. 3d 805, 811, the court held that it was ‘difficult to conceive of a situation where there would be evidence of a belief that deadly force was justified but where the evidence would be such that the issue of the reasonableness of that belief should not be submitted to the jury, and such a situation does not appear to have been contemplated by the drafters of IPI Criminal.’ The Harris court thus suggested that whenever a voluntary manslaughter instruction, based on an ‘imperfect’ defense of self-defense, is given in a murder case, an instruction on the ‘perfect’ defense of self-defense should also be given. We find the reasoning in Harris persuasive.” (People v. Woodward (1979), 77 Ill. App. 3d 352, 356-57, 395 N.E.2d 1203, 1207.)

The Woodward court went on to note that the self-defense instruction would be proper only if the defendant produced “some evidence” of a reasonable belief of the necessity for the use of deadly force. Though not raised by the parties in the case at bar, this leads to a question of whether or not the manslaughter instruction should have been tendered to the jury. We think not.

Some guidance in this area is provided by a case not cited by the parties, People v. Toth (1982), 106 Ill. App. 3d 27, 30, 435 N.E.2d 748. The Toth court discussed when self-defense instructions should be given and stated that self-defense and voluntary manslaughter, based on a reasonable belief of justification, are two sides of the same coin. In Toth the defendant had stated that he got into an argument with the victim, who, he contended, wanted to seduce him. She hit him with a paintbrush and pulled a serrated steak knife from her pocket. Defendant grabbed the knife from her and struck her a few times. The victim started bleeding and said that she was “bleeding to death.” The defendant carried her to a nearby pond and tossed her face down into the water, not knowing whether she was alive or dead. It was later determined that the victim died from drowning. Defendant stated he did not know how many times he had stabbed her and that it was “either me or her.”

On appeal it was held that the submitted instructions on voluntary manslaughter did not find support in the record. The court stated

“ ‘The testimony falls far short of the reasonable, adequate provocation required to reduce murder to manslaughter while in the heat of passion. The test is objective, not subjective. The inquiry is not as to whether the defendant was angry at someone or about something at the time he *** killed the deceased. The question to be asked is whether there existed such provocation as would have caused the state of mind claimed in an ordinary person under the same circumstances.’ People v. Matthews (1974), 21 Ill. App. 3d 249, 252, 314 N.E.2d 15, 18, appeal denied (1974), 57 Ill. 2d 605.” People v. Toth (1982), 106 Ill. App. 3d 27, 31-32, 435 N.E.2d 748.

Applying the objective test, the court noted that an ordinary person under these circumstances would not have concluded “it was me or her.” Therefore, it found that there was not sufficient provocation for the murder charge to be reduced to voluntary manslaughter by reason of sudden and intense passion. The court in Toth noted that the sequence of events should be reviewed. In the defendant’s altercation with the victim his conclusion that it was “me or her” happened first. At the time when they were at the edge of the pond and the victim apparently passed out, she was not a threat to the defendant and defendant could not have thought, at that point, that it was “either me or her.” Therefore, the court stated, his actions in throwing her into the pond, a situation from which she was unable to extricate herself, could not have been self-defense. Therefore, it held there was no evidence of circumstances that would create the belief that throwing the victim into the pond was necessary to prevent defendant from suffering imminent déath or great bodily harm. (People v. Cannon (1971), 49 Ill. 2d 162, 166, 273 N.E.2d 829, 831.) The appellate court noted that it was harmless error for the self-defense instruction to have been submitted to the jury. Further it noted that it was correct for the trial court to have refused the instructions on voluntary manslaughter through unreasonable belief in justification.

People v. Toth (1982), 106 Ill. App. 3d 27, 435 N.E.2d 748, is similar in one very important regard to the case at bar. In both cases there was a lack of evidence that at the time when defendant committed the act which resulted in the victim’s death, he was under a threat of imminent death or great bodily harm. Absent any evidence of such threat the defendant is not entitled to either a self-defense or voluntary manslaughter instruction.

In light of the cases discussed above and our review of the evidence in this cause, we believe the trial court properly denied defendant’s request for a self-defense instruction.

The evidence in the case at bar reveals that there may have been a threat by the victim towards defendant. William Allen testified that he saw the victim pull a knife toward defendant and tell him that if he wanted anything to ask for it. Allen said that the victim returned inside after this and had at least one beer, or was shooting pool when, 15 or 20 minutes later, defendant returned with a pistol. There was no evidence that the victim presented any threat to defendant at the time of the shooting. Nor does the testimony from Marilyn Fields, that the men outside the bar were arguing prior to the shooting, support a self-defense claim. For these reasons we believe that the trial court properly refused defendant’s request for self-defense jury instructions.

Defendant’s second contention on appeal also concerns the jury instructions. He contends that he was deprived of a proper jury determination of the extent of his criminal liability because the trial court failed to include, in the issues instruction on murder, the requirement that the State prove that he was not acting under sudden and intense passion resulting from serious provocation by the victim, Thomas Barnes.

However, the record reveals that at trial, defense counsel had no objection to these instructions. He concedes that this was waived at trial and in his post-trial motion. In People v. Smith (1978), 71 Ill. 2d 95, 104, 374 N.E.2d 472, it was stated: “We recognize that it is the obligation of defendant to object to a particular instruction. [Citation.] So also, it is his duty to tender a proper instruction on a particular issue at trial. [Citation.]” Like counsel in Smith, defendant here relies on Supreme Court Rule 615(a) to the effect that “[p]lain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court.” (87 Ill. 2d R. 615(a).) There is some question whether Ride 451(c) that “substantial defects are not waived by failure to make timely objections thereto if the interests of justice require” (87 Ill. 2d R. 451(c)) might not be more relevant.

Whichever rule is applied, it has been held that the trial court is not required to instruct the jury that the State must negate the elements of voluntary manslaughter beyond a reasonable doubt before a jury can convict someone of murder. (People v. March (1981), 95 Ill. App. 3d 46, 56, 419 N.E.2d 1212.) We see no plain error.

Defendant’s reliance on People v. Stutter (1979), 71 Ill. App. 3d 118, 389 N.E.2d 593, is misplaced. Stutter was concerned with inconsistent verdicts, and the jury had returned a verdict of guilty on both the manslaughter and the murder charge, unlike the case at bar where the verdict was guilty of murder alone. In People v. Perez (1981), 100 Ill. App. 3d 901, 908, 427 N.E.2d 229, a situation similar to the one in issue arose, and the court held that where the jury has rejected a voluntary manslaughter charge, an omission in the murder instruction did not give rise to plain error. We reach the same result here.

Defendant’s final contention on appeal is that reversible error occurred in the arguments made by the prosecutor. He contends that on two separate occasions the prosecutor gave his opinions concerning defendant’s guilt to the jury. In his opening statement he stated: “You know, charging someone with the offense of murder is not something that you do lightly.” In his closing argument he repeated this point, saying, “I told you in the beginning, ladies and gentlemen, the charge is murder, it is not something that is placed as a charge lightly or proven by speculation.” While it is well settled that it is improper for the prosecutor to give his own opinion on defendant’s guilt to the jury (People v. Hopkins (1970), 124 Ill. App. 2d 415, 259 N.E.2d 577), it is not clear that these statements are real indications of the prosecutor’s opinion regarding the guilt of the defendant. Because defendant did not object to these comments nor preserve them in his post-trial motion, we can consider these errors only under the plain error doctrine of Supreme Court Rule 615(a) (87 Ill. 2d R. 615(a)).

When read in context, the comment regarding charging someone with murder is part of an explanation by the prosecutor that does not indicate the prosecutor’s personal belief of anything other than the seriousness of the crime of murder. Similarly, it could be seen in the closing argument comment that the prosecutor was commenting on or giving his opinion as to what was shown by the evidence. This is not error if the evidence supports the argument. People v. Prim (1972), 53 Ill. 2d 62, 289 N.E.2d 601.

The comments made that are contended to be erroneous in this case are far less damaging than those which have been seen as improper in other cases. For example in People v. Fuerbaek (1966), 66 Ill. App. 2d 452, 214 N.E.2d 330, the prosecuting attorney replied to defendant’s closing argument by saying that he thought that if the prosecuting attorney had not thought that the defendant was guilty, he would have dismissed the case. Because there was no evidence upon which that opinion could be based the court found this question to be improper and to constitute prejudicial error. See also People v. Hopkins (1970), 124 Ill. App. 2d 415, 418, 259 N.E.2d 577.

Defendant also contends that the prosecutor made a prejudicial remark when he stated that “what we are looking at here is the feeling of almost being in a game show. We are going to have defense No. 1 or defense No. 2 or defense No. 3, take your pick.” This statement was objected to by defendant and the court overruled the objection. Defendant contends that the prosecutor was attempting to penalize the defendant for holding the State to its burden of proof on all elements of defense.

Defendant relies upon the case of People v. Meredith (1980), 84 Ill. App. 3d 1065, 1072, 405 N.E.2d 1306, which concerned a prosecutor who had argued, in closing argument, that defendant had phoned his attorney the morning after the murder. This was claimed to be a constitutional error in that the prosecutor’s comment infringed on a constitutional privilege that defendant sought to exercise, that of the exercise of the right to counsel. However comments made in closing argument about defendant’s exercising his right to counsel the morning after the murder are far more damaging than a comment that defendant is exercising different defenses at trial.

We do not believe that the prosecutor’s arguments were intended to or had the effect of lessening the State’s burden of proof on this case.

While the comments quoted above were possibly improper, it does not appear that they were so improper as to be prejudicial or to constitute plain error.

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

Affirmed.

VAN DEUSEN and LINDBERG, JJ., concur.


author: JUSTICE KASSERMAN

text:
    MICHAEL KELLER et al., Plaintiff-Appellant, v. MICKEY KELLEY, Treasurer of the County of Union, Defendant-Appellee.
    Fifth District
    No. 81—543
    Opinion filed December 2, 1982.

      John Womick, of Carbondale, for appellants.
    Rodney A. Clutts, State’s Attorney, of Jonesboro, for appellee.
   JUSTICE KASSERMAN

delivered the opinion of the court:

On July 21, 1980, plaintiffs, Michael Keller and Anna Grain Elevator, Inc., instituted a mandamus action to compel defendant, Mickey Kelley, the treasurer of Union County, to issue a certifícate pursuant to section 397.1 of the Elinois Insurance Code (Ill. Rev. Stat. 1979, ch.73, par. 1009.1).

Plaintiffs alleged that they leased from Elinois Central Gulf Railroad real property which was located in Anna, Illinois, at 1000 Sheridan Road. Situated upon this real estate was a structure and other equipment used for grain operations, which plaintiffs alleged was their personal property. Plaintiffs further alleged that their personal property was destroyed by fire on April 22, 1980, and that pursuant to section 397.1 of the Illinois Insurance Code, they requested that defendant issue a certificate that no delinquent taxes were due and owing on the property. The complaint further alleged that defendant refused to do so and, consequently, plaintiffs have been unable to collect the proceeds of their fire insurance. Plaintiffs prayed that the trial court issue a writ of mandamus requiring the defendant to execute the certificate required by section 397.1 of the Illinois Insurance Code.

Defendant filed an answer to plaintiffs’ complaint for mandamus which denied, inter alia, that there were no delinquent taxes due and owing. In late April 1981, the case was tried.

Michael Keller, the president of Anna Grain Elevator, Inc., testified in his own behalf. He stated that he leased land from Illinois Central Gulf Railroad at 1000 Sheridan Road in Anna, Elinois, and that he placed certain personal property on the land. He testified that this personal property consisted of grain bins and an office structure which was sitting on concrete blocks. Mr. Keller said that it was the office structure which was damaged by fire. He further stated that the railroad paid the real property taxes on its main line. On cross-examination, Mr. Keller said that he owned the office structure, which he described as being one of the improvements on the real estate. He also said that in the past six years he had been receiving tax notices from defendant which indicated that taxes were due and owing on the property in question.

Gene Plott, the supervisor of assessments for Union County, was called by plaintiffs as an adverse witness. Mr. Plott testified that for the past six years the railroad land located at 1000 Sheridan Road had certain improvements situated thereon which he assessed as non-carrier real estate. He stated that he did not assess the land itself and indicated that his definition of noncarrier real estate included structures, grain bins and elevators located on the property. Mr. Plott testified that he utilized sections 79(4) and 83 of the Revenue Act of 1939 (Ill. Rev. Stat. 1979, ch. 120, pars. 560(4) and 564) to determine how to assess noncarrier real estate.

Defendant was also called by plaintiffs as an adverse witness. Defendant testified that there were no outstanding taxes on the railroad’s land located at 1000 Sheridan Road. He said that he refused to issue the certificate that no taxes were due and owing, as plaintiffs had requested, because the noncarrier real estate taxes on the improvements located on the railroad’s land had not been paid. He said that improvements are considered real estate under the applicable statutes.

Defendant called Gene Plott to the stand. Mr. Plott stated that he assessed the noncarrier real estate taxes to “Anna Elevator, care of Mike Keller” and not to the railroad which owned the land at 1000 Sheridan Road. He testified that what constitutes noncarrier real estate is determined by the Department of Revenue, which supplies this information to county officials through documents filed in the county clerk’s office. Mr. Plott said that these documents are used for the purpose of assessment and to determine the individuals responsible for paying the noncarrier real estate taxes. Documents which indicated that the Department of Revenue listed plaintiffs’ office structure and grain elevators located on the railroad’s land as noncarrier real estate from 1974 to 1979 were admitted into evidence. On cross-examination, Mr. Plott reiterated that plaintiffs’ noncarrier real estate was not land but rather improvements on the land and that he did not assess the land itself.

Defendant testified on his own behalf. He said that he sent non-carrier real estate tax notices to Mr. Keller and Anna Elevator Company.

After hearing the evidence, the trial court stated that the structure located on the railroad’s land was noncarrier real estate, that noncarrier real estate taxes were due and owing, and that plaintiffs were responsible for paying these taxes. On May 5, 1981, the trial court issued an order in which it declared that there were noncarrier real estate taxes due and owing and, therefore, plaintiffs’ request for a writ of mandamus would be denied. The issue before us is whether this ruling by the trial court was correct.

Plaintiffs argue that under sections 79(4) and 83 of the Revenue Act of 1939 (Ill. Rev. Stat. 1979, ch. 120, pars. 560(4) and 564), defendant should have assessed the noncarrier real estate tax to the Illinois Central Gulf Railroad and that since the real estate taxes which were billed to the railroad have been paid, there were no taxes due and owing which would preclude defendant from issuing the certifícate regarding payment of taxes under section 397.1 of the Illinois Insurance Code.

Defendant maintains that plaintiff owes the noncarrier real estate tax and that assuming that it is the railroad’s tax burden, there are taxes due and owing and, therefore, defendant should not be required to issue the certificate regarding payment of taxes.

We find that plaintiffs’ position has merit. Defendant, having mistakenly taxed plaintiffs for noncarrier real estate instead of the railroad, should not be allowed to deny plaintiffs the benefits of the insurance.

While defendant correctly notes that the structure placed on the railroad’s land by the plaintiffs falls within the definition of non-carrier real estate (Ill. Rev. Stat. 1979, ch. 120, par. 560(4)), the statute which provides how such property should be taxed plainly indicates that it is the railroad which owes the noncarrier real estate tax. Section 83 of the Revenue Act of 1939 provides:

“Every railroad company subject to assessment in this State shall annually return to the Department a list of its non-carrier real estate in this State, indicating the description thereof, the current assessed value, and the estimated true value of all non-carrier real estate both within and without this State, and any other information the Department may require. The Department shall examine said list and make whatever additions or alterations it may find necessary, and transmit to the proper assessing officials of each county in which non-carrier real estate may be located, the list above described, together with any other information it may deem pertinent. The proper assessing officials of each county shall thereupon assess such non-carrier real estate in the same manner as other similar property belonging to individuals, except that it shall be treated as property belonging to railroads, under the terms ‘land’ and ‘lots’. If any parcels of land used as non-carrier real estate are not platted, any description shall be sufficient which would enable a competent surveyor to locate the property.” (Ill. Rev. Stat. 1979, ch. 120, par. 564.)

The language of the statute thus indicates that it was designed to allow local taxation of railroads. (See People ex rel. Brenza v. Chicago & North Western Ry. Co. (1951), 411 Ill. 85, 92, 103 N.E.2d 85, 89; Chicago Union Station Co. v. Korzen (1981), 96 Ill. App. 3d 780, 782, 422 N.E.2d 62, 64.) Contrary to defendant’s assertion, it is the railroad, not the plaintiff, which owes the noncarrier real estate tax.

In the case at bar, it is undisputed that there are no outstanding taxes on the railroad’s real estate. Defendant, nevertheless, argues that since he billed plaintiffs for the noncarrier real estate taxes and plaintiff failed to pay them, there are now taxes due and owing and, therefore, the certificate required under section 397.1 of the Illinois Insurance Code should not be issued. We do not agree. Plaintiffs cannot be expected to pay taxes they do not owe. At oral argument, plaintiffs’ counsel said he advised Mr. Keller not to pay the noncarrier real estate taxes because they were, under the statutes, owed by Illinois Central Gulf Railroad. This interpretation of the law was correct. It was defendant’s mistaken interpretation of section 83 of the Revenue Act of 1939 which caused the erroneous billing to plaintiffs and resulting nonpayment by the railroad, which owed the noncarrier real estate tax. It would be unjust to require plaintiffs to suffer for defendant’s mistake.

Defendant alternatively argues that regardless of who owes the taxes, the fact remains that since the noncarrier real estate tax has not been paid, there are taxes due and owing which preclude issuance of the certificate under section 397.1 of the Illinois Insurance Code. This argument is compelling but unavailing. The purpose of section 397.1 of the Illinois Insurance Code is to obtain payment for delinquent property taxes from the proceeds of insurance. (See Ill. Rev. Stat. 1979, ch. 73, pars. 1009.1(d) and (e).) The statute itself states that section 397.1 should not be construed as creating any additional obligation for an insurance company to pay unpaid delinquent taxes. (Ill. Rev. Stat. 1979, ch. 73, par. 1009.1(g)(3).) If, as in the instant case, the insured is not the property owner and does not owe the taxes, then his insurance proceeds cannot be reached by the taxing authority. Thus, the identity of the owner of the noncarrier real estate is not irrelevant as defendant suggests. Defendant, by refusing to issue the certificate regarding payment of taxes, is wrongfully depriving plaintiffs, who owe no taxes on the property, of insurance benefits.

Defendant had a statutory duty to issue the certificate regarding payment of taxes. Mandamus is an appropriate means to compel pub-lie officials to comply with such duties. (Overend v. Guard (1981), 98 Ill. App. 3d 441, 443, 424 N.E.2d 731, 733.) The trial court erred by refusing to grant plaintiffs’ request for relief.

For the foregoing reasons, the judgment of the circuit court of Union County is reversed and remanded with directions to issue the writ of mandamus.

Reversed and remanded with directions.

HARRISON and WELCH, JJ., concur.


text:
      In re MARRIAGE OF FRANCES A. BROWN, Petitioner-Appellant and Cross-Appellee and MICHAEL W. BROWN, Respondent-Appellee and Cross-Appellant.
    Fifth District
    No. 81—550
    Opinion filed December 3, 1982.

      Conger & Elliott, P.C., of Carmi, for appellant.
    Endicott & Finch and C. William Fechtig, both of Carmi, and Marshall J. Auerbach & Associates, of Chicago, for appellee.
   PRESIDING JUSTICE EARNS

delivered the opinion of the court:

Judgment of dissolution of the marriage of Frances A. Brown and Michael W. Brown was rendered by the circuit court of White County on December 10, 1980. Judgment on the remaining issues of property division, maintenance, child custody and child support was entered June 1, 1981. Frances Brown appeals from the trial court’s decision respecting property division, maintenance and child support. Michael Brown cross appeals on the issue of maintenance. The parties do not question the judgment of dissolution nor that custody of the children was granted to Frances Brown.

The parties were married January 18, 1964, and have two children now living with their mother. During the marriage, Michael Brown’s sole employment was at his father’s business, Brown’s Feed and Chemical Store. He started drawing a salary in 1962; in 1971 he and his father formed a partnership, each owning a one-half interest in the business. Frances Brown was not employed outside the home. Her primary responsibilities were at home as homemaker and mother. She did help the business periodically by doing bookkeeping and payroll, attending business meetings, entertaining business guests, cosigning notes and guarantees, making sales at the store and in general performing any task or errand as requested by her husband. Her actual time spent working at the business, however, was very limited.

The parties owned a significant amount of property. Much of it was acquired by Michael Brown as a partner of Brown’s Feed and Chemical Store. The remaining property consists of the parties’ home and miscellaneous personal property. The trial court classified these latter interests as marital and divided the property between the parties. The division of this property is not contested on this appeal.

Michael Brown’s one-half interest in the partnership was classified as nonmarital property by the trial court. It was valued at $198,000. It is this part of the trial court’s distribution of property that Frances Brown contests.

The trial court’s judgment regarding division of the property is governed by section 503 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1981, ch. 40, par. 503). Section 503(b) of the Act states that all property acquired after marriage is presumed marital property unless rebutted with proof that the property was acquired by one of six nonmarital methods. (Ill. Rev. Stat. 1981, ch. 40, pars. 503(a)(1) through (6).) The trial court held that Michael Brown had rebutted the statutory presumption favoring marital property by proving that his one-half interest in Brown’s Feed and Chemical Store was a gift from his father, Archie Brown, as provided in section 503(a)(1) of the Act.

A valid gift requires proof of donative intent and delivery of the subject matter. (In re Estate of Duncan (1979), 77 Ill. App. 3d 927, 397 N.E.2d 497.) In this case, donative intent is presumed because the transfer was from parent to child. (In re Estate of Nelson (1971), 132 Ill. App. 2d 544, 270 N.E.2d 65.) As a result, Mrs. Brown was required to present evidence that Archie Brown acted without donative intent. Although she attempted to show that Archie Brown had a business motive in transferring the one-half interest to his son, we find the argument unpersuasive. The evidence most relevant in determining Archie Brown’s intent is his own testimony. He testified that he wanted his son to share in the business, “to have half the income” and to give him “the opportunity to buy the rest in case something happened to me.” The testimony is indicative of a gift and was not contradicted.

Although we find the one-half interest in the partnership to be a gift and thus nonmarital property, we also hold that it was transmuted into marital property.

Transmutation of nonmarital property to marital property can take place in two ways. One involves converting the separate ownership of nonmarital property into a form of common ownership. (In re Marriage of Rogers (1981), 85 Ill. 2d 217, 422 N.E.2d 635.) The second type of transmutation is at issue here. It involves commingling of nonmarital property with marital property, thereby converting the entire nonmarital property interest into marital property. (In re Marriage of Westphal (1981), 99 Ill. App. 3d 1042, 426 N.E.2d 303.) The Supreme Court of Illinois has specifically recognized the transmutation of property theory. In In re Marriage of Smith (1981), 86 Ill. 2d 518, 427 N.E.2d 1239, the court stated, “where a spouse who holds nonmarital property causes it to be commingled with marital property, or with nonmarital property of the other, we hold that the commingled property is presumed to be marital property.” (86 Ill. 2d 518, 529, 427 N.E.2d 1239, 1244.) There, the parties’ home was held to be marital property even though one spouse traced nonmarital property into the purchase price. Rental property acquired by the husband as settlement of his mother’s estate was presumed to be marital property because improvements were made with marital funds.

In Smith, the court emphasized that the contribution to nonmarital assets must be by an affirmative act of the parties and not due to economic appreciation alone. Secondly, transmutation will not occur if the owner of the nonmarital property can prove that he has kept his property separate from the marital property.

The court in Smith pointed out that its decision effectuated the legislative purpose of the statute. Presuming transmutation of non-marital property gives further recognition to the equal partnership theory of the Act and to the contribution of the homemaker. Further, the court found that transmutation promotes the statutory preference for classifying property as marital which, even when the contribution of the spouse is insignificant, allows for more equitable distribution of property because the pool of marital property is greater.

In In re Marriage of Lee (1981), 87 Ill. 2d 64, 430 N.E.2d 1030, the court used the transmutation theory to hold that the parties’ home was entirely marital property even though the husband acquired the home prior to the marriage with his own funds. The transmutation theory was applicable because marital assets were used to make improvements to the home.

While it has been suggested that the decision in Smith has “rendered the concept of non-marital property nearly illusory” (Feldman and Becker, Classification of Property Upon Dissolution of Marriage: Suggestions for Maintaining our “Dual System” in the Aftermath of Smith, 71 Ill. Bar J. 100, 101 (1982)), we have reviewed the supreme court cases at length, and while the present case does not fit the factual situation of any decided case, we believe the same policies and statutory purposes require use of the transmutation theory here.

The one-half interest of Michael Brown in the partnership was nonmarital property at the time of the transfer. During the marriage, the value of the partnership has increased substantially. For the most part, the increase in value reflects the earnings of the partners that have been retained in the business. One-half of these retained earnings represent the income Michael Brown has received for his “employment” by the partnership. We hold that these retained earnings are marital property. We have held that business interests can be classified as marital property. (In re Marriage of Westphal (1981), 99 Ill. App. 3d 1042, 426 N.E.2d 303 (assets of sole proprietorship); In re Marriage of White (1981), 98 Ill. App. 3d 380, 424 N.E.2d 321 (interest in professional dental corporation); In re Marriage of Olsher (1979), 78 Ill. App. 3d 627, 397 N.E.2d 488 (stock in closed corporation).) Further, we fail to see any difference between the income Michael Brown receives as a partner in Brown’s Feed and Chemical Store and the income one receives while employed during the marriage in any other capacity, or the income earned on nonmarital property during marriage, both clearly being marital property. In re Marriage of Smith (1981), 86 Ill. 2d 518, 533, 427 N.E.2d 1239, 1246 (marital funds used to renovate nonmarital business real estate); In re Marriage of Komnick (1981), 84 Ill. 2d 89, 417 N.E.2d 1305 (nonmarital farm remains nonmarital where its increase in value is the result solely of economic appreciation and not to capital improvements from marital funds); In re Marriage of Parr (1981), 103 Ill. App. 3d 199, 430 N.E.2d 656 (payment of loan to pay purchase price of nonmarital property from marital earnings); In re Marriage of Reed (1981), 100 Ill. App. 3d 873, 427 N.E.2d 282 (interest earned on nonmarital property during marriage).

In addition, the parties’ home, a marital asset, was mortgaged to guarantee notes made payable to the partnership’s chemical suppliers. Michael Brown testified that without settling these accounts each year, the partnership would lose the suppliers’ business.

Finally, we find no evidence that Michael Brown kept the retained earnings separate from the rest of the business. As a result, the marital property (retained earnings) was commingled with the nonmarital property (the original one-half interest from Archie Brown) causing the entire property interest to be transmuted into marital property. It is well established that an asset cannot be both marital and nonmarital. In re Marriage of Komnick.

Our decision supports the same policies the supreme court found evident in the statute. Classifying the partnership interest as marital property gives recognition to Frances Brown’s contribution as a homemaker and to the equal partnership theory the statute espouses. Our decision also increases the amount of marital property to be divided, thus reducing the need for dependence on maintenance.

As we must reverse the trial court’s determination that the partnership interest was nonmarital property, we realize that our decision upsets a carefully considered equitable division of the parties’ property. Therefore, we remand the entire cause for a redetermination by the trial court. We do note that the division of the partnership interest does not have to be an equal one. The Act allows the trial court to consider the contribution of each party in the acquisition, preservation and appreciation of the property. And we note that the partnership need not be physically divided between the parties. Frances Brown may receive offsetting property or a monetary award to be paid in installments equaling her interest in the partnership. In re Marriage of Leon (1980), 80 Ill. App. 3d 383, 399 N.E.2d 1006.

We must also address the trial court’s valuation of Michael Brown’s one-half interest in the partnership. Frances Brown argues that the trial court used an incorrect amount to represent the difference in the capital accounts of the two partners and that it made a mathematical error in computing the ultimate value of the business.

The trial court set the value of the entire partnership at $550,000. This figure is not contested. To determine Michael Brown’s interest, it divided the total value in half and then subtracted $77,000, representing the difference between the partners’ capital accounts. The final figure was $198,000.

There is no question that Michael Brown’s capital account was substantially less than that of his father. It is also agreed that the difference between the capital accounts should be reflected in the final value assigned to each partner’s interest. The dispute involves which figure accurately represents the difference between the accounts. The December 31, 1980, financial statement of the business, which was prepared by certified public accountants based on information furnished by the partners, indicated the difference was $39,858. On the other hand, Archie Brown testified that the difference was $77,408. He based his figure on errors made in 1977 accounting and on capital contributions made in 1978 that had not been credited to his account. We feel compelled to reject the higher figure unless on remand this amount can be substantiated by verifiable accounting data. Since the partners supplied the accountants with the information necessary to prepare the financial statement and neither partner made mention of the adjustments as the reports were made, they will otherwise be bound by these statements here. See Gregg v. Hord (1889), 129 Ill. 613, 22 N.E. 528.

The second problem involves the final computation of each partner’s interest. The Uniform Partnership Act (Ill. Rev. Stat. 1981, ch. 106V2, par. 1 et seq.) provides us with the correct method of computation. It states, as far as is relevant here, that the partnership assets are reduced by the total of all partners’ capital contributions, this being a debt of the partnership. The remaining assets are then divided according to each partner’s interest in the partnership. Applying the formula to our facts, we find that the value of Michael Brown’s interest would be $255,071. According to the 1980 financial statement, Archie Brown’s capital account is $110,737, while Michael Brown’s is $70,879. Subtracting the sum of these figures from the value of the entire partnership, we are left with $368,384. This figure is then divided by one-half giving each partner $184,192. In summary, Michael Brown’s interest is equal to his capital, $70,879, plus his one-half share, $184,192, or $255,071. Archie Brown’s interest is equal to his capital, $110,737, plus his one-half share, $184,192, or $294,929. Note that this method of computation retains the $39,858 differential between the partners’ capital. See Vassallo v. Sexauer (1970), 22 Mich. App. 188, 177 N.W.2d 470, for a similar application of section 40 of the Uniform Partnership Act.

The remaining issue involves the trial court’s award of maintenance and child support. Frances Brown was awarded maintenance of $1,400 per month for five years and child support of $300 per month per child. Frances Brown contests both awards. Michael Brown contests the award of maintenance.

Under the Act, the trial court is required to consider the amount of marital property distributed to a spouse in fixing maintenance (Ill. Rev. Stat. 1981, ch. 40, par. 504(b)(1)), and to consider the financial resources of the custodial parent in fixing child support (Ill. Rev. Stat. 1981, ch. 40, par. 505(a)(2)). Therefore, our reversal of the trial court’s adjudication of property rights requires a re-examination of both awards.

For the foregoing reasons, the decision of the circuit court of White County finding the partnership interest to be nonmarital property is reversed and the cause is remanded for a redetermination of property division, maintenance and child support.

Reversed and remanded.

JONES and WELCH, JJ., concur.


text:
    THE PEOPLE ex rel. PAUL HAAS, Treasurer and ex officio Collector of Taxes for St. Clair County, Applicant-Appellee, v. WALTER E. ACKERMANN et al., Objectors-Appellants.
    Fifth District
    No. 82—82
    Opinion filed December 2, 1982.
    Patrick M. Flynn, of Belleville, for appellants.
    John Baricevic, State’s Attorney, of Belleville (Jeffrey R. Glass, Assistant State’s Attorney, of counsel), for appellee.
   JUSTICE KASSERMAN

delivered the opinion of the court:

This is an appeal from consolidated tax objections filed by various taxpayers in the circuit court of St. Clair County, in which the objectors challenged their 1979 real estate tax assessments. They alleged, inter alia, that the application of the equalization rate, or “multiplier,” provided for in section 149 of the Revenue Act of 1939 (Ill. Rev. Stat. 1979, ch. 120, par. 630) (hereinafter referred to as the Revenue Act), resulted in a fraudulent and excessive assessment of their property.

Applicant, the treasurer and ex officio collector of taxes for St. Clair County, moved for summary judgment on the ground that the objectors had failed to appeal their assessment to the Board of Review of St. Clair County, pursuant to section 107 of the Revenue Act (Ill. Rev. Stat. 1979, ch. 120, par. 588). Applicant argues that, as a consequence, the objectors have waived the right to object to the taxes.

The objectors concede that the assessment established by the local assessing officials is accurate but urge that the tax objection should be entertained as to that portion of the tax in excess of the assessment actually established before the board adjourned.

The trial court granted the applicant’s motion for summary judgment and the objectors brought this appeal.

The sole issue presented for our consideration is whether the objectors’ failure to seek a hearing before the St. Clair County Board of Review bars their suit in the circuit court. We hold that it does not.

The procedure for valuing real property in Illinois for tax purposes involves two steps. First, the local assessor values the real estate within the county. (See generally Ill. Rev. Stat. 1979, ch. 120, pars. 483 through 488.) This local assessment is subject to revision by either the county board of review or board of appeals, depending on which board is used in the particular county. (Ill. Rev. Stat. 1979, ch. 120, pars. 489 through 492, 588 through 606.) The second step in the valuation process is performed by the Department of Local Government Affairs (hereinafter referred to as Department), which, inter alia, performs the function of equalizing the valuation and assessment of property between the counties of the State. (Ill. Rev. Stat. 1979, ch. 120, par. 611(7).) The Department is authorized to act as an equalizing authority to lower or raise the total assessed value of property in the counties so that in counties throughout the State property will be assessed at the SSVsVo level specified by law. (Ill. Rev. Stat. 1979, ch. 120, pars. 627, 482(24).) The remaining portion of the equalization process has been summarized by the supreme court in Hamer v. Lehnhausen (1975), 60 Ill. 2d 400, 402-03, 328 N.E.2d 11, 13:

“Notice of the Department’s action is to be given by publication of the Department’s estimates of full, fair cash value of locally assessed property within each county, and for a public hearing following which the Department may either confirm or revise its estimate. [Ill. Rev. Stat. 1973, ch. 120, par. 629a.] Thereafter, the Department is directed to equalize assessments of all property among the several counties as certified by the county clerks ‘by adding to the aggregate assessed value thereof in every county in which the Department may find the valuation to be less than [33x/3% of the] fair cash value, such rate per cent as will raise the same to [33x/3% of the] fair cash value *** and by deducting from the aggregate assessed value thereof, in every county or township in which the Department may find the valuation to be more than [33x/3% of the] fair cash value, such rate per cent as will reduce the same to [33x/3% of the] fair cash value.’ [Ill. Rev. Stat. 1973, ch. 120, par. 630.] This equalization rate, which is more commonly referred to as the ‘multiplier,’ is then certified by the Department to the respective county clerks who extend taxes on the basis of the equalized assessed valuation resulting from application of the multiplier. [Ill. Rev. Stat. 1973, ch. 120, par. 632.]”

The objectors urge, as they did in the circuit court, that since the multiplier was not established until after the St. Clair County Board of Review had adjourned, it was impossible for them to seek relief from that body prior to seeking judicial relief. We agree. Our supreme court in People ex rel. Isbell v. Albert (1949), 403 Ill. 469, 479, 86 N.E.2d 237, 242, stated as dictum:

“If the application of the equalization factor *** resulted in a fraudulent or excessive assessment of a particular taxpayer’s property, it is obvious that such individual taxpayer had no opportunity for relief from the board of review which had adjourned before the establishment of the equalization factor. An individual taxpayer could be heard on the question of an excessive or fraudulent character of his individual assessments by tax objection procedure in the county court, notwithstanding he had not complained to the Department of Revenue or to the board of review where there had been no opportunity to do so.”

We adopt this dictum in Isbell as the rationale for our reversal of the judgment of the trial court in the case at bar.

We would further note that the county board of review operates to make adjustments regarding an individual’s taxes only insofar as local assessments are concerned. (Ill. Rev. Stat. 1979, ch. 120, par. 589(4).) There is no statutory authority in the revenue code for the county boards of review to make adjustments in taxation after the application of the multiplier is determined by the Department. Thus, as the court in Isbell noted, review of the application of the equalization factor must rest with the judiciary.

We reject the applicant’s suggestion that section 148a of the Revenue Act (Ill. Rev. Stat. 1979, ch. 120, par. 629a) provides a procedure for taxpayers to have their tax objections concerning the multiplier established by the Department reviewed. While section 148a does provide a method for questioning the establishment of the multiplier itself, it does not offer a procedure whereby an individual taxpayer may obtain relief when the application of the multiplier results in a fraudulent or excessive assessment of his or her particular property. Indeed, the Department, by statute, has no authority “to review, revise, correct or change any individual assessment made by any local assessment officer.” (Ill. Rev. Stat. 1979, ch. 120, par. 633.) The objectors, having alleged a fraudulent and excessive assessment due to the application of the multiplier, were entitled to a hearing on that claim.

Accordingly, the judgment of the circuit court of St. Clair County is reversed and the cause remanded.

Reversed and remanded.

HARRISON and WELCH, JJ., concur.


author: JUSTICE ALLOY

text:
    SUSAN MORFORD et al., Plaintiffs-Appellants, v. LENSEY CORPORATION, Defendant-Appellee.
    Third District
    No. 82—158
    Opinion filed November 30, 1982.

      Duane D. Thompson and Dean L. Sutton, both of Prairie State Legal Services, Inc., of Rock Island, for appellants.
    Douglas C. Scovil and Dorothea O’Dean, both of Winstein, Kavensky, Wallace & Doughty, of Rock Island, for appellee.
   JUSTICE ALLOY

delivered the opinion of the court:

This is an appeal by the plaintiffs Susan Morford and Sylvia Strosche (hereinafter tenants) from the dismissal of counts I, II and 111 of their amended complaint against the Lensey Corporation (hereinafter landlord). All three counts were dismissed, on motion of the landlord, for failure to state claims upon which relief could be granted. From the dismissals, the tenants appeal. The issues raised concern the sufficiency of the three counts in stating causes of action.

The facts in the complaint, taken as true for purposes of the motion to dismiss, indicate that the tenants and the landlord entered into a written residential lease for a Rock Island apartment on or about July 31, 1977. The lease was renewed for an additional year on or about July 31, 1978, and the renewed lease contained an automatic renewal provision, effective until July 31, 1980. Following July 31, 1980, the tenants continued to occupy the apartment on a month-to-month basis, paying rent monthly. According to the factual allegations of the complaint, throughout their tenancy, the leased apartment contained numerous physical defects and substandard conditions, which were stated to be violations of the minimum housing standards for the city of Rock Island. Sixteen separate physical defects or conditions were listed in the first amended complaint. The landlord had been notified of the conditions and defects, but had refused or failed to make any repairs.

On or about December 4, 1980, the tenants requested that the housing inspection department of the city of Rock Island make an inspection of their apartment premises. That inspection was made on December 5, 1980, and the landlord was notified of defects and substandard conditions in the premises. The landlord was instructed by the city to bring the premises into compliance with the city’s housing code. Subsequent to the defendant landlord’s receipt of notice from the city, the landlord, on December 23, 1980, served tenants with a 30-day notice to quit, directing them to vacate by February 1, 1981. Tenants were at all times in complete compliance with their obligations as tenants to the landlord. The tenants complied with the notice to quit and vacated the premises. The landlord refused to return their $125 security deposit, which had been paid at the inception of the lease arrangement.

The tenants responded with the instant action against the landlord. Count I of their first amended complaint sought to assert a claim for breach of the implied covenant of habitability. It set forth the prior and existing contractual relationships between the tenants and landlord, and it alleged, as part of the lease, an implied warranty of habitability. The warranty of habitability was grounded, in part, on the minimum housing standards of the city of Rock Island. Sixteen specific defects or substandard conditions, allegedly violations of the applicable housing code, were set forth as breaches of the implied warranty of habitability. The tenants also alleged that the premises, with the defects and substandard conditions, was unfit for occupancy. Count I concluded with allegations of damages, and a request for relief.

Count II of the complaint sought to assert a cause of action premised upon violations of sections 1 and 2 of article XI of the Illinois Constitution of 1970. (Ill. Const. 1970, art. XI, secs. 1, 2.) Those sections state:

“Section 1. Public Policy — Legislative Responsibility
The public policy of the State and the duty of each person is to provide and maintain a healthful environment for the benefit of this and future generations. The General Assembly shall provide by law for the implementation and enforcement of this public policy.
Section 2. Rights of Individuals
Each person has the right to a healthful environment. Each person may enforce this right against any party, government or private, through appropriate legal proceedings subject to reasonable limitation and regulation as the General Assembly may provide by law.”

Count Ill’s factual allegations were substantially those set forth in count I.

Count II of tenants’ complaint set forth the facts of the previous counts, and included factual allegations that the premises, at the tenants’ request, had been inspected by the housing department, that violations had been found, and that the landlord had been notified of the violations. Count III alleged that the notice to quit from the landlord was delivered shortly after the finding of violations and notice to the landlord, and that the landlord had terminated the tenancy solely because of the tenants’ complaints to the city’s housing inspection department. The tenants premised recovery upon the landlord’s retaliatory eviction of them for making those complaints to the housing department. See Ill. Rev. Stat. 1979, ch. 80, par. 71.

Count IV of the complaint pleaded a cause of action for breach of contract respecting the failure to return their damage deposit of $125.

The landlord filed a motion to dismiss the complaint for failure to state a cause of action. A hearing on the motion to dismiss was held, and on January 18, 1982, the trial court entered its judgment order dismissing counts I, II, and III of the complaint. Dismissal was denied as to count IV. However, on February 23, 1982, count IV was disposed of by consent order. Thereafter, on March 12, 1982, within 30 days of the consent order disposing of count IV, the tenants filed their notice of appeal from the dismissal of counts I through III.

Before addressing ourselves to the sufficiency of the allegations in those counts, we are met with a contention that the appeal must be dismissed because the tenants failed to file a timely notice of appeal. The landlord argues that an appeal from the order dismissing counts I through III should have been filed within 30 days of January 18, 1982, the date that dismissal order was entered and filed. We find that the notice of appeal herein was timely filed. Supreme Court Rule 304 controls. It states, in pertinent part:

“(a) Judgments as to Fewer Than All Parties or Claims — Necessity for Specific Finding. If multiple parties or multiple claims for relief are involved in an action, an appeal may be taken from a final judgment as to one or more but fewer than all of the parties or claims only if the trial court has made an express finding that there is no just reason for delaying enforcement or appeal. Such a finding may be made at the time of the entry of the judgment or thereafter on the court’s own motion or on motion of any party. The time for filing the notice of appeal shall run from the entry of the required finding. In the absence of such a finding, any judgment that adjudicates fewer than all of the claims or the rights and liabilities of fewer than all of the parties is not enforceable or appealable and is subject to revision at any time before the entry of a judgment adjudicating all the claims, rights, and liabilities of all of the parties.” (73 Ill. 2d R. 304(a).)

In the instant case, the January 18 order adjudicated fewer than all of the claims in question, leaving standing count IV, and it contained no finding as required by the Supreme Court Rule. The January 18 order was not appealable. All claims were disposed of on February 23, 1982, when the consent order on count IV was entered. That order also contained the express finding required by Rule 304(a). Therefore, the appeal period began on February 23, and the notice of appeal filed within 30 days thereof was timely. We turn next to the three counts of the complaint which were dismissed and to the questions of their sufficiency in stating causes of action against the landlord.

It is well established that where a motion to dismiss admits well-pleaded facts, that a cause of action will not be dismissed upon its pleadings unless it clearly appears that no set of facts can be proved which will entitle the plaintiff to recover. (Johnston v. City of Bloomington (1979), 77 Ill. 2d 108, 113, 395 N.E.2d 549.) The tenants argue that count I of their complaint was sufficient to state a cause of action for breach of the landlord’s implied warranty of habitability, and we agree. In Jack Spring, Inc. v. Little (1972), 50 Ill. 2d 351, 366, 280 N.E.2d 208, the Illinois Supreme Court concluded that both oral and written residential leases include implied warranties of habitability, premised upon the provisions of applicable building and housing codes. In the instant case, count I set forth the existence of a lease, with an implied warranty of habitability. It also set forth specific defects or substandard conditions in the leased premises, which were alleged to be in violation of the housing code of Rock Island, and which allegedly rendered the premises unfit for occupancy. Damages were alleged as a result of the breach of warranty. We find the factual allegations sufficient to state a cause of action for breach of the implied warranty of habitability in the lease contract. The motion to dismiss should have been denied as to count I.

In response, the landlord initially faults the tenants for the failure to specify those portions of the housing code which are alleged to have been violated. Next, it argues that the defects specified are only minor and insubstantial, and do not render the premises -uninhabitable. The landlord also attempts to portray count I as merely seeking enforcement of a duty to make repairs, which duty is not in the lease contract. As to the lack of specificity respecting provisions of the housing code, we find that omission insufficient to justify dismissal. Count I clearly sets forth specific defects in the premises and alleges that they are violations of the housing code of the city. The housing code is specified by name (see 73 Ill. 2d R. 133), and further specification of provisions violated can be obtained by bill of particulars, or by further discovery. It is to be noted, again, that motions to dismiss should be allowed only where no set of facts exist which give rise to a sufficient claim by the plaintiff. Here sufficient facts are set forth, and any failure to specify violated provisions of the housing code is not fatal. Whether, as the landlord claims, the defects and substandard conditions are minor, and whether they render the premises uninhabitable, are questions of fact, not properly raised by way of motion to dismiss. Nor does it matter that the count alleged a failure to make repairs, where, even aside from such allegation, it was sufficient to state a cause of action for breach of the warranty of habitability. The trial court erred in dismissing count I.

Count II of the tenants’ complaint, which seeks recovery based upon violations of sections 1 and 2 of article XI of the Illinois Constitution, is not sufficient to state a cause of action. We have previously set forth these two provisions. The breadth of the language used in them is undeniable. However, we have found nothing in the Constitutional Commentary, nor in the prior case law, to indicate an intention to create, with these provisions, a private cause of action for tenants as against landlords where leased premises are alleged to be unhealthful. In fact, the committee on general government, which proposed the language, stated in its report that the sections did not create or establish new remedies. These environmental provisions of the Constitution were aimed principally at the threat posed persons and the environment by pollutants. Furthermore, by the terms of these provisions, the General Assembly was given the power to regulate and limit enforcement of these rights. Our statement, in dicta, in Fredman v. Clore (1973), 13 Ill. App. 3d 903, 301 N.E.2d 7, affd in part, rev’d in part on other grounds (1974), 59 Ill. 2d 20, does not indicate any assent to a contention that these sections, by themselves and without further legislative enactment, create a cause of action in the landlord-tenant area respecting the conditions of the leased premises. A remedy for unhealthy and uninhabitable premises was created by the Illinois Supreme Court in Jack Spring, and we do not create another remedy, under sections 1 and 2 of the Illinois Constitution. We find the tenants’ arguments novel and interesting, but unpersuasive. Count II was properly dismissed.

The last issue before us concerns the third count of tenants’ complaint, which sought to assert a claim based upon the landlord’s retaliatory eviction. As noted previously, count III set forth the existence of the tenancy, the fact that the tenants had requested an inspection by the city, and that violations were found by the inspectors. It was further alleged that the landlord was notified of the violations, and that he terminated the tenancy solely because of the tenants’ complaints to the housing inspections department. We find these allegations sufficient, if proven, to warrant recovery for retaliatory eviction, if damages are shown; section 1 of “An Act to protect the right of tenants to complain of violations of governmental regulations” (Ill. Rev. Stat. 1979, ch. 80, par. 71) sets forth this State’s public policy against retaliatory evictions:

“It is declared to be against the public policy of the State for a landlord to terminate or refuse to renew a lease or tenancy of property on the ground that the tenant has complained to any governmental authority of a bona fide violation of any applicable building code, health ordinance, or similar regulation ***.”

In Clore v. Fredman (1974), 59 Ill. 2d 20, 319 N.E.2d 18, the Illinois Supreme Court held that allegations setting forth a retaliatory eviction, under section 1, could be brought forth as a defense in forcible entry and detainer actions. Section 1 evidences a broad statement of public policy against such retaliatory evictions, and, as remedial legislation, it must be liberally construed to effect its purposes. (SUV. Nielson Co. v. Public Building Com. (1980), 81 Ill. 2d 290, 298, 410 N.E.2d 40.) We conclude that section 1 supports recovery for a tenant, as against a landlord who is shown to have evicted the tenant for a retaliatory reason, as set forth in the statute. A liberal construction of the statute, with a view to protecting a tenant and preventing such retaliation by landlords, requires such a result. To permit the claim to be asserted only as a defense in eviction actions by a landlord would work to a landlord’s benefit in those cases where an unknowing tenant vacates, after notice, unaware of his rights to a defense of retaliatory eviction. The purposes behind section 1 are better served where a tenant who has been forced to leave, as a result of his valid complaints about the condition of the premises, can also obtain relief as against the landlord outside of the forcible entry and detainer context. The landlord herein does not dispute the existence of such a cause of action. Rather, the argument is made that the count is deficient in its allegations of a retaliatory eviction claim. The landlord suggests a deficiency in that there was no allegation that repairs could not have been done with continued occupancy, and in that there was no allegation that the landlord was aware of the tenants’ complaints when he gave them notice. Whether repairs could be done with occupancy or not is not relevant to the retaliatory eviction claim, which is based upon the tenants’ complaints and the landlord’s response thereto. As to the landlord’s awareness of the source of complaint, the tenants’ allege that the termination of the lease by the landlord was solely because of their complaints to the inspections department. Implicit in this allegation is that the landlord was aware that they had complained to the city about their premises. In order to prove that the landlord’s termination was the result of their complaints, they will have to show that his actions were in response to complaints to the city. It is a logical inference from the sequence of events specifically set forth in the complaint that the termination was in retaliation, and should the landlord deny this basis and assert another, then a question of fact would be presented, to be determined by the factfinder. The tenants’ count III sufficiently stated a cause of action for retaliatory eviction, and should not have been dismissed. We find no validity in the landlord’s suggestion that the factual allegations conclusively show that the tenants left the premises voluntarily, and not in response to the conditions and the landlord’s notice to quit.

In summary, we find that the court erred in dismissing counts I and III, being the causes of action based upon the implied warranty of habitability and upon a retaliatory eviction. The court properly dismissed count II, based upon the constitutional violations alleged.

Accordingly, the cause is remanded for further proceedings in accordance with the views expressed in this opinion.

Affirmed in part and reversed in part with a remandment.

SCOTT and STOUDER, JJ., concur.