author: JUSTICE O’CONNOR

text:
    NORMAN PIERCE et al., Plaintiffs-Appellants, v. B & C ELECTRIC, INC., Defendant-Appellee.
    First District (1st Division)
    No. 81-0282
    Opinion filed February 1, 1982.

      Edwin H. Conger and Karen S. Quandt, both of Tenney & Bentley, of Chicago, for appellants.
    No brief filed for appellee.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Plaintiffs, known collectively as the Electrical Insurance Trustees, filed suit against defendant B & C Electric, Inc., for $2944.24 and costs under the liquidated damage provision of a collective bargaining agreement for the late payment between October 1977 and August 1978 by defendant-of fringe benefit contributions on behalf of its employees. At the end of a bench trial, the court found that the provision was a penalty, rather than liquidated damages, and entered judgment for defendant. Plaintiffs appeal, contending that the trial court erroneously found as it did and that the judgment for defendant should be reversed and judgment entered for them in the amount of $2944.24 and costs.

Defendant has failed to file in this court. In accordance with First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493, we will consider plaintiffs’ appeal on its merits.

Defendant is an employer of union workers of Local Union 134, International Brotherhood of Electrical Workers. By letters of assent, defendant agreed to be bound by provisions contained in the collective bargaining agreement between the Electrical Contractors’ Association of the City of Chicago and Local Union 134, International Brotherhood of Electrical Workers. In pertinent part, that agreement provides:

“[Article XVII, section 9]
The Payroll Report for Participating Employers and a single check payable to Electrical Insurance Trustees covering the Employer’s contribution for fringe benefits and the deductions made from the wages of Employees shall be sent monthly to:
Electrical Insurance Trustees
228 North LaSalle Street, Room 2212
Chicago, Illinois 60601
Phone: ST 2-5442.”
“[Article XVIII, section 1]
0 * * The payment and the payroll report shall be mailed to reach the office of the appropriate Local Board not later than fifteen (15) calendar days following the end of each calendar month.”
“[Article XIX, section 1]
Employers who fail to have sufficient funds in the bank to meet all pay checks issued to Employees covered hereby, and checks issued to cover contributions as outlined above, shall be penalized by the Electrical Joint Arbitration Board. Liquidated damages in the amount of 10% will be assessed on all contributions and deductions not paid within fifteen (15) days. Such assessments shall be disbursed proportionately into various Trust Funds.” (Emphasis added.)

For the months of October 1977 through August 1978, defendant’s fringe benefit contributions were made after the 15th calendar day following the end of each calendar month. The lateness ranged between 20 and 67 days.

Plaintiffs moved for summary judgment, supported by the affidavit of Ralph Hogan, the manager of Electrical Insurance Trustees. This motion was denied. At the bench trial, Ralph Hogan was the only witness. He testified that if fringe benefit contributions are not submitted by an employer by the 15th day of a month, an employee’s medical and dental insurance is suspended and at the end of the quarter in which contribution payments are not made, an employee’s vacation fund is terminated. Often, upon receiving a termination notice, an employee or his spouse will complain to the Trustee’s employees in an abusive manner. If contribution payments are received after the employee’s benéfits were terminated, the process of termination has to be reversed to reinstate the benefits. Five hundred employers participate in the union contract, and it is not possible to estimate how many staff hours are spent terminating and reinstating employee benefits when an employer submits late contributions.

The sole issue is whether the provision “[liquidated- damages in the amount of 10% will be assessed on all contributions and deductions not paid within fifteen (15) days” is a liquidated damages provision or a penalty provision. The standard for determining whether a liquidated damages provision will be enforced is section 339, subsection (1), of the Restatement of Contracts (1932). (Bauer v. Sawyer (1956), 8 Ill. 2d 351, 359,134 N.E.2d 329.) As stated by the court, that section provides:

“ ‘An agreement, made in advance of breach, fixing the damages therefor, is not enforceable as a contract and does not affect the damages recoverable for the breach, unless (a) the amount so fixed is a reasonable forecast or just compensation for the harm that is caused by the breach, and (b) the harm that is caused by the breach is one that is incapable or very difficult of accurate estimation.’ ”

In Pick Fisheries, Inc. v. Burns Electronic Security Services, Inc. (1976), 35 Ill. App. 3d 467, 470, 342 N.E.2d 105, the court upheld a liquidated damage provision which limited liability for loss or damage resulting from the performance, nonperformance or negligence in installing an alarm system to a “ ‘sum equal to ten percent of the annual service charge or $250, whichever is the greater * 6 (Emphasis added.) With reference to liquidated damage provisons, the court stated (35 Ill. App. 3d, 467, 471-72):

“Generally, the courts of Illinois give effect to such damage provisions and do not treat them as penalties where the parties have expressed their agreement in clear and explicit terms. (Burnett v. Nolen (1949), 336 Ill. App. 376, 84 N.E.2d 155.) If, on the other hand, the clause is deemed inserted merely as a deterrent to prevent a party from breaching the contract and penalizing him for doing so, it will be regarded as an unenforceable penalty. (Giesecke v. Cullerton (1917), 280 Ill. 510, 117 N.E. 777.) Although where the intention of the parties to approximate anticipated damages is unclear, Illinois courts have indicated they will construe the sum as a penalty (Arco Bag Co., Inc. v. Facings, Inc. (1958), 18 Ill. App. 2d 110, 151 N.E.2d 438), the modern trend is to give effect to the provision in the absence of fraud or unconscionable oppression (Heckman v. Mid States Development Co. (1965), 60 Ill. App. 2d 113, 207 N.E.2d 715). However, there is much contradiction in the case law regarding the distinction between a valid liquidated damages clause and an unenforceable penalty, and each case must be decided according to its own particular facts. Giesecke v. Cullerton.”

In upholding the liquidated damage provision, the court pointed out that the parties involved were two corporate entities of equal economic standing and that the disputed clause was contained in a contract which was in effect for more than two years prior to the alleged loss.

As in Pick Fisheries, Inc. plaintiffs here seek to enforce a liquidated damage provision which has been in existence for many years against a corporate entity that voluntarily signed letters of assent agreeing to be bound to the provisions contained in the union’s collective bargaining agreement.

In United Order of American Bricklayers and Stone Masons Union No. 21 v. Thorleif Larsen & Son, Inc. (7th Cir. 1975), 519 F.2d 331, the court held that a liquidated damages provision of labor contract between union and employer, which provided for 10% of amount due as liquidated damages for employer’s failure to make timely contributions to certain jointly administered fringe benefit funds, was enforceable and was not unenforceable as a penalty, even though provision failed to make damages proportional to length of delay in payment. The provision there at issue, which was broader than the provision here involved, provided (519 F.2d 331, 332):

“ ‘Any Employer failing to make prompt and timely payment of the contribution to the Masonry Institute or to the Pension Fund or to the Apprenticeship Program in accordance with this Agreement, shall in addition to the aforesaid hourly contributions pay an additional amount of ten (10%) percent of the amount due in liquidated damages for failure to pay in accordance with this Agreement.
If delinquency continues uncured for forty-eight (48) hours after written notice of such delinquency is mailed or delivered to the delinquent employer, the Employer shall be liable for claims for the extent of benefits to which the employee would have been entitled if the Employer had made the required contributions, and for all contributions and liquidated damages due thereunder, plus all reasonable legal fees incurred by the Masonry Institute, the Trustees of the Apprenticeship Program or the Pension Fund in enforcing the payment thereof.’ ”

There are many factual similarities between Bricklayers and the case before us. Duly authorized trustees in both cases seek to enforce a liquidated damages provision contained in a collective bargaining agreement to which an employer using union workers has agreed to be bound. In both, the amount of the liquidated damages for late payments is 10% of the amount due and the 10% is due without regard to the lateness of the payment. In both, the employers who challenged the liquidated damages provision had been participants of the collective bargaining agreement for many years. In both, the damages were greater than just the loss of the money’s interest value and involved various administrative procedures which were automatically undertaken with regard to an individual employee’s benefits when contributions are not received on time. Records were not available in either case to determine the cost of the administrative procedures and the expenses involved could not be estimated as they related to an individual employer’s failure to make timely payments. Lastly, in both, the liquidated damages collected would be solely for the benefit of the union employees.

In Bricklayers, the court found “[t]he most serious problem with the present damage provision is its failure to make the damages proportional to the length of the delay in payment.” (519 F.2d 331, 334-35.) After reviewing the standard set out in section 339 of the Restatement of Contracts, the court stated that “the greater the difficulty of estimating the damages, the greater will have to be the latitude accorded to the determination of the reasonableness of the forecast [of just compensation for the harm caused by the breach]” and concluded that, given the facts and factors involved, the liquidated damages provision was appropriate. (519 F.2d 331, 335.) In reaching this conclusion, the court examined similar liquidated damage provisions contained in other labor agreements and upheld by other courts: Weber v. Anspach (1970), 256 Ore. 479, 473 P.2d 1011, and United States v. Carter (1957), 353 U.S. 210, 1 L. Ed. 2d 776, 77 S. Ct. 793.

In considering the ability to estimate the damages involved, the court dismissed the employer’s assertion that the costs of the administrative procedures attendant to a delay in payment are easily calculated, stating (519 F.2d 331, 334):

“Indeed, the record keeping involved in arriving at a precise determination of administrative costs might in itself provide a substantial cost. In any event, we cannot be unmindful that what we are dealing with is not an after-the-fact cost determination but a contractually agreed-upon-in-advance-of-delinquency estimate of what is a reasonable likelihood of cost.
The very use of a liquidated damages provision, in addition to avoiding controversy (or at least that is the hope), presupposes some uncertainty of the amount of damages resulting from the triggering breach or delinquency. Uncertainty of the exact amount of resultant damages is a principal factor which causes contracting parties in advance of disputation to fix upon a basis of damages which is reasonably related to those which are likely to result.”

In the case before us, the uncontradicted testimony of the manager of the Electrical Insurance Trustees shows the uncertainty of the amount of damages resulting from the late payments and ensuing procedures which had to be instituted to preserve the employees’ rights. He testified that certain administrative procedures are routinely instituted when a payment is past due and therefore, once late, certain harm is caused. There is no way to estimate in dollar terms the harm which results when an employer submits late contributions. Because of the inability to estimate with accuracy the harm caused by the receipt of late payment of contributions, an assessment of 10%, as agreed upon by the parties, is just compensation for the failure to make timely fringe benefit contributions on behalf of its employees. We agree with the court in Bricklayers that the “[uncertainty of the exact amount of resultant damages is a principal factor which causes contracting parties in advance of disputation to fix upon a basis of damages which is reasonably related to those which are likely to result.”

Further, the use of the word “penalized” in the first sentence of article XIX, section 1, does not convert the liquidated damage provision in the second sentence into a penalty. As quoted above, that section provides:

“Employers who fail to have sufficient funds in the bank to meet all pay checks issued to Employees covered hereby and checks issued to cover contributions as outlined above, shall be penalized by the Electrical Joint Arbitration Board. Liquidated damages in the amount of 10% will be assessed on all contributions and deductions not paid within fifteen (15) days. Such assessments shall be disbursed proportionately into the various Trust Funds.”

On its face, it is clear that the first sentence applied only to actions which may be taken by the Electrical Joint Arbitration Board (not the Trustees) against an employer whose checks “bounce.” The action to be taken is not specified. Particularly is it not specified whether the “penalty” for such checks shall be monetary.

In McCullough v. Moore (1904), 111 Ill. App. 545, the court held that a provision was one for liquidated damages even though $5,000 was labeled “penal.” The court, after quoting from Hennessy v. Metzger (1894), 152 Ill. 505, 517, 38 N.E. 1058, stated:

“ ° but it is not the law that the presence or absence of the words “penalty,” or “penal sum,” or “liquidated damages,” will control, in determining whether a sum named is to be considered as liquidated damages, or merely as a penalty’ ” (Ill 111. App. 545, 551)

and also quoted from 1 Sedgwick on Measure of Damages §408 (8th ed. 1891):

“The question whether a stipulated sum is to be allowed as liquidated damages is a question of law, and no agreement of the parties to call it a penalty or liquidated damages can decide the question.”

Courts construe and interpret contracts with the sole aim of determining the intention of the parties and will avoid placing upon language a ridiculous construction. Hall v. Wilson (1934), 277 Ill. App. 601; Parker v. Arthur Murray, Inc. (1973), 10 Ill. App. 3d 1000, 295 N.E.2d 487.

The intent of the parties in agreeing to be bound by the collective bargaining agreement is clearly set forth in the preamble:

“This Agreement is entered into to prevent strikes and lockouts and to facilitate peaceful adjustment of grievances and disputes between Employer and Employee in this trade, and, to prevent waste and unnecessary and avoidable delays and expense, and for the further purpose of at all times securing for the Employer sufficient skilled Employees and so far as possible to provide for labor continuous employment; such employment to be in accordance with the conditions herein set forth and at wages herein agreed upon, that stable conditions may prevail in building construction, that building costs may be as low as possible consistent with fair wages and conditions of employment and to further establish the necessary procedure by which these ends may be accomplished.”

The making of timely employee fringe benefit contributions by the employer is necessarily a matter consistent with the expressed intention of the parties to prevent unnecessary waste and expense and to provide employees with employment in accordance with conditions and wages agreed upon.

We find that the provision in question is one for liquidated damages and not for a penalty. The judgment of the circuit court of Cook County for defendant is reversed and the cause remanded to that court with directions to enter judgment in the amount of $2944.24 for plaintiffs, Norman Pierce, A. E. Soudan, Timothy J. Bresnahan, Joseph Duffy, Edward E. Hansen, W. Hultgren, Jr., Harold J. Kilburg, Joseph Kingsley, Garrett P. Walters and Burton Van Wetering, as the Electrical Insurance Trustees, and against defendant, B & C Electric, Inc., a corporation.

Reversed and remanded with directions.

GOLDBERG and McGLOON, JJ., concur.


source: Caselaw Access Project

author: JUSTICE GOLDBERG

license: Public Domain

text:
    CARL E. WUENCH et al., Plaintiffs-Appellants, v. FORD MOTOR COMPANY et al., Defendants-Appellees.
    First District (1st Division)
    No. 81-813
    Opinion filed February 1, 1982.
    Francis W. Gulbranson, of Prairie View, for appellants.
    Baker & McKenzie, of Chicago (Francis D. Morrissey, Edward J. Zulkey, Terrence M. Johnson, and Mark L. Karasik, of counsel), for appellees.
   JUSTICE GOLDBERG

delivered the opinion of the court:

Carl E. Wuench and Terry L. Wuench Lee (plaintiffs) brought an action against Ford Motor Company and Nelsen Hirschberg, Incorporated (defendants), for personal injuries and “property damage” which allegedly resulted from a defect in an automobile. Plaintiffs’ complaint consisted of eight counts alleging negligence, breach of warranty, strict liability in tort, res ipsa loquitur, and damage to property. Counts IV and VIII seeking recovery based on res ipsa loquitur, and count VII based on “property damage” were dismissed by the trial court for failure to state a cause of action. Plaintiffs appeal.

We will accept as true the pertinent well-pleaded facts in plaintiffs’ complaint. (Soules v. General Motors Corp. (1980), 79 Ill. 2d 282, 284, 402 N.E.2d 599.) On or about March 13, 1978, plaintiff Carl E. Wuench, contracted with defendant Nelsen Hirschberg, Incorporated, to purchase a 1978 Fort L.T.D. manufactured by defendant Ford Motor Company. The automobile was delivered to plaintiff Carl E. Wuench on May 2, 1978. On August 26, 1978, plaintiff Terry Wuench Lee was driving the automobile when the left rear axle allegedly “broke off, causing the car to turn over and crash.” Plaintiff Lee seeks recovery for personal injuries, and plaintiff Wuench seeks recovery for damage to the car and attendant expenses.

Defendants first contend the instant appeal should be dismissed. Defendants argue plaintiffs’ complaint presents a single basis for recovery and therefore is actually a single cause of action. Defendants insist because the remaining counts in the complaint seek the same recovery, the partial dismissal by the trial court did not effectively terminate the litigation between the parties, and hence is not final and appealable. See, e.g., Johnson v. Northwestern Memorial Hospital (1979), 74 Ill. App. 3d 695, 393 N.E.2d 712.

The case most supportive of defendants’ position is Prado v. Evanston Hospital (1979), 72 Ill. App. 3d 622, 390 N.E.2d 1270. In Prado we dismissed an appeal from the dismissal of a res ipsa loquitur count. The only additional count, sounding in negligence, remained to be litigated and was not involved in the appeal. We reasoned res ipsa loquitur “is a rule of evidence and not a separate theory of recovery.” (72 Ill. App. 3d 622, 625.) Therefore, the pendency of the negligence cause of action prevented dismissal of the res ipsa loquitur count from being a final order. We do not believe Prado controls the case at bar.

First, unlike Prado, the complaint in the instant case does allege alternate theories of recovery besides res ipsa loquitur and negligence. In the instant case, plaintiffs seek recovery based on product liability and breach of warranty as well as on negligence. Also, plaintiffs seek separate recovery for personal injuries and damage to the automobile. Because the instant appeal includes the dismissal of the count seeking recovery for the damage to the car, as well as the dismissal of the res ipsa loquitur counts, we are constrained not to dismiss the appeal. Second, regarding the dismissal of the res ipsa loquitur counts alone, since Prado this court has dealt with the merits of a count alleging res ipsa loquitur while the litigation was still in the pleading stage. (See Rinck v. Palos Hills Consolidated High School District No. 230 (1979), 82 Ill. App. 3d 856, 403 N.E.2d 470, appeal denied (1980), 79 Ill. 2d 634.) Therefore, it seems proper for us to dispose of the present appeal on its" merits.

Regarding the merits of the case, defendants argue plaintiffs cannot maintain an action under res ipsa loquitur because they cannot establish defendants had exclusive control over the automobile at the time of the accident. See Rinck, 82 Ill. App. 3d 856, 862.

Plaintiffs contend the fact that defendants did not have control of the automobile is not sufficient to defeat res ipsa loquitur as long as the intervening possession is not of such a nature as to destroy the inference of negligence. Plaintiffs have correctly stated the law of Illinois (see Kruger v. Newkirk (1976), 40 Ill. App. 3d 581, 585, 352 N.E.2d 436) but have incorrectly applied the law to the instant case.

Plaintiffs rely on three cases: Kruger, May v. Columbian Rope Co. (1963), 40 Ill. App. 2d 264, 189 N.E.2d 394, and Bustamante v. Carborundum Co. (7th Cir. 1967), 375 F.2d 688. We find these cases factually distinguishable from the case at bar.

In May, a rope which plaintiff described as “ ‘brand new,’ having been placed in use on the morning of the accident” (40 Ill. App. 2d 264, 269), snapped while supporting plaintiff on a scaffold. We held the intervening possession was not sufficient to sustain a judgment n.o.v. for defendants, and ordered a new trial. 40 Ill. App. 2d 264, .279.

In Bustamante, the seventh circuit applied Illinois law in a case in which plaintiff was injured after a grinding wheel which had been installed on the previous day, disintegrated after a total of one-half hour of normal use. (375 F.2d 688, 689.) The court concluded the intervening possession and short use of the grinding wheel did not invalidate the jury’s inference of negligence by the manufacturer.

In Kruger, approximately three weeks after plaintiff took possession of a new house, he discovered water damage caused by leaks in plumbing pipes installed by defendant. (40 Ill. App. 3d 581, 583.) We held the intervening use and possession of the plumbing by plaintiff was not sufficient to invalidate a jury verdict for plaintiff.

In each of these cases, the possession was not of such a character as to dispel an inference of negligence. In Bustamante and May, the intervening possession was for only several hours. In Kruger, the short-term possession was of plumbing, a product not readily susceptible to customer abuse.,

In contrast, plaintiffs in the instant case used and possessed the automobile for almost four months. By their very nature, automobiles are products the condition of which is drastically affected by the way they are used. It is certainly possible that within the four-month period during which plaintiffs possessed the automobile the product was in some way misused or in some way suffered damage which could have contributed to the alleged failure of the rear axle.

In Rinck, we addressed the case of a student injured by an allegedly defective frying pan. In holding the doctrine of res ipsa loquitur did not apply, we stated (82 Ill. App. 3d 856, 862):

“Further, the doctrine is inapplicable because the facts as alleged do not .necessarily infer negligence on the part of defendants. There are several possible causes for the accident apart from any negligence by defendants; for example, the student using the frying pan could have been negligent, or the frying pan may have had an inherent defect for which the manufacturer would potentially be liable, or there may have been a defect in the electrical system for which the power company, not the school, would potentially be liable.”

In the case at bar, the intervening possession of the automobile presents plausible explanations for the accident other than the negligence of defendants. For that reason the evidentiary presumption of negligence is not appropriate here. Therefore, the dismissal of counts IV and VIII alleging res ipsa loquitur is affirmed.

In count VII of plaintiffs’ complaint, plaintiff Wuench prayed for $7,000 reflecting damage to the automobile sustained in the accident. The complaint states in part:

“As a proximate result of the negligence aforesaid, the automobile belonging to CARL WUENCH became severely damaged, and he was required to expend great monies to repair and replace the same, and that he incurred expenses in removing the damaged car from the scene of the occurrence, and that he was deprived of the use of the said car, and was required to spend great sums of money for replacement use of said car.”

The trial court dismissed the count, holding it sought recovery for economic loss which is generally not permitted in a tort action and is “removed from the field of tort liability.” (See Fireman's Fund American Insurance Companies v. Burns Electronic Security Services, Inc. (1980), 93 Ill. App. 3d 298, 301, 417 N.E.2d 131.) We note the contrary authority of Moorman Manufacturing Co. v. National Tank Co. (1980), 92 Ill. App. 3d 136, 138-39, 414 N.E.2d 1302, appeal allowed (1981), 83 Ill. 2d 571, where this court held economic losses are recoverable “under the tort theories of strict liability in tort, negligence, misrepresentation.” (92 Ill. App. 3d 136, 138.) We prefer to follow Firemans Fund American Insurance Companies.

In Firemans Fund American Insurance Companies we dealt with a claim for losses from a robbery allegedly caused by the failure of an alarm system. We discussed the distinction between property damage and economic loss extensively (93 Ill. App. 3d 298, 300-01):

“Economic loss, as we view it, is the loss of the benefit of the user’s bargain. It is the loss of the service the product was supposed to render, including loss consequent upon the failure of the product to meet the level of performance expected of it in the consumer’s business. * * a For example, if a fire alarm fails to work and a building burns down, that is ‘economic loss’ even though the building was physically harmed; but if the fire is caused by a short circuit in the fire alarm itself, that is not economic loss.
# # #
The definition of economic loss is inextricably linked to the reasons why that type of loss is removed from the field of tort liability. When goods are sold, their soundness is the core of the bargain. It is for the parties to decide what the consequences will be if the bargain founders. An entire body of law, contracts — of which product warranties is a part — is available to govern those areas of the relationship concerning which the bargain is silent. There is thus no need for the law of torts to define the rights of parties in privity when they have done so themselves. When a buyer loses the benefit of his bargain because the goods are defective, that is, when he suffers economic loss, he has his contract to look to for remedies. Tort law need not, and should not, enter the picture.”

According to the language quoted above, we believe the loss sustained in the case at bar constitutes economic loss rather than property damage. We believe it is important that the complaint alleges the automobile is the defective product. Because the automobile itself was allegedly defective, any loss suffered by plaintiff Wuench was the “loss of the benefit of the user’s bargain.” For us to sustain plaintiffs’ position we would be expounding the rather novel theory that plaintiff Wuench had purchased a defective rear axle which damaged his property, his automobile. We do not believe this reasoning is either logical or practical. In our opinion, count VII was properly dismissed.

In any event, our ruling has little or no practical significance. In a pending count plaintiffs seek damages for the defective automobile under the theory of breach of warranty. This court was not dismissed by the trial court and remains to be litigated in due course. For these reasons the judgment appealed from is affirmed.

Judgment affirmed.

CAMPBELL, P. J., and O’CONNOR, J., concur.


text:
    CHAWALIT PHAHOLYOTHIN et al., Plaintiffs-Appellants, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellee.
    First District (1st Division)
    No. 81-1089
    Opinion filed February 1, 1982.
    William Butcher, of Melrose Park, for appellants.
    Querrey, Harrow, Gulanick & Kennedy, Ltd., of Chicago (Victor J. Piekarski and Glen E. Amundsen, of counsel), for appellee.
   JUSTICE GOLDBERG

delivered the opinion of the court:

Chawalit and Chaunpim Phaholyothin (plaintiffs) brought this action against State Farm Mutual Automobile Insurance Company (defendant) to recover upon an automobile insurance policy between the parties. The trial court granted defendant’s motion to dismiss. Plaintiffs appeal.

The well-pleaded and pertinent facts alleged in plaintiffs’ complaint are “accepted as true.” (Soules v. General Motors Corp. (1980), 79 Ill. 2d 282, 284, 402 N.E.2d 599.) On or about October 3, 1979, a person representing himself as “Curtis Benson” indicated he would purchase plaintiffs’ 1976 Datsun automobile for $5,200. On October 4,1979, “Curtis Benson” gave plaintiffs a check which purported to be, on its face, a cashier’s check executed by an officer of the United States Steel Corporation Credit Union payable to plaintiff Chawalit Phaholyothin in the amount of $5,200. “Benson” represented that he was employed by the United States Steel Corporation and maintained an account with the credit union. Therefore, plaintiffs delivered the vehicle and its title to “Benson.” On October 16, 1979, plaintiffs discovered the representations made to them by “Benson” were false and the check given them had been stolen and its signature forged.

During this time, an insurance policy issued by defendant to plaintiffs remained in effect. This policy provided the following coverage:

“1. Loss to Your Car. We [defendant] will pay for loss to your car # # O
Breakage of glass, or loss caused by missies, falling objects, fire, theft, larceny, ° * * is payable under this coverage.”

Plaintiffs further alleged defendant had refused to act upon this policy, resulting in damages to the plaintiffs’ car when ultimately recovered and other damage in the amount of $3,258.82.

Defendant filed a motion to strike and dismiss the complaint. Defendant did not deny the policy to be in effect during the period in question. However, defendant contended the following exclusionary clause in the policy precluded any liability in this situation:

“THERE IS NO COVERAGE FOR:
# e #
3. LOSS TO ANY VEHICLE DUE TO:
# # #
d. CONVERSION, EMBEZZLEMENT OR SECRETION BY ANY PERSON WHO HAS THE VEHICLE DUE TO ANY LIEN, RENTAL OR SALES AGREEMENT.”

In this court, plaintiffs contend the trial court erred in dismissing their complaint. Plaintiffs argue the above exclusionary clause did not relate to . the type of loss they incurred.

The parties agree a provision of this type has not been examined by reviewing courts of Illinois. We have examined the cases from other jurisdictions cited by plaintiffs and believe several of them to be relevant to the facts before us. In Modern Sounds & Systems, Inc. v. Federated Mutual Insurance Co. (1978), 200 Neb. 46, 262 N.W.2d 183, the plaintiff transferred title and possession of an automobile to one McMillon in exchange for a check for $10,200. The check was returned because of insufficient funds and was never paid. Plaintiff sought reimbursement from the defendant insurance company pursuant to a policy provision which provided for any loss “caused by theft or larceny.” The court first noted no definition of either of those terms was found in the policy, and therefore construed the term “theft” to include “a loss caused by any unlawful or wrongful taking of the insured vehicle with criminal intent.” 200 Neb. 46, 52, 262 N.W.2d 183, 187.

The Modern Sounds ir Systems, Inc. court next considered the defendant’s claim that coverage under the policy was precluded due to an exclusionary clause. The clause excluded coverage due to “loss or damage due to conversion, embezzlement or secretion by any person in possession of a covered automobile under a bailment lease, conditional sale, purchase agreement, mortgage or other encumbrance.” In finding this exclusion inapplicable to the facts of the case, the court stated:

“The transaction with McMillon was complete upon the contemporaneous exchange of his check for title and possession of the car. The exclusion clause is aimed at persons in possession under executory contracts and agreements in which two or more persons have concurrent legal interests in a car and not at a buyer in a completed sale. [Citations.]” 200 Neb. 46, 62, 262 N.W.2d 183, 187.

Additional cases cited by plaintiffs are in accord with the above holding, finding such an exclusionary clause inapplicable to the situation where an automobile was “sold” in exchange for a forged or otherwise insufficient check. (See Edwards v. State Farm Mutual Automobile Insurance Co. (Iowa 1980), 296 N.W.2d 804; Farm Bureau Mutual Insurance Co. v. Carr (1974), 215 Kan. 591, 528 P.2d 134; Reserve Insurance Co. v. Interurban Transit Lines (1962), 105 Ga. App. 278, 124 S.E.2d 498.) The courts in both Edwards and Farm Bureau Mutual found the exclusionary clauses referred to executory contracts. In Reserve Insurance Co., the court specifically held the exclusionary clause did not apply as the original taking of the car “was unlawful and constituted a theft or larceny * * V 105 Ga. App. 278, 280,124 S.E.2d 498, 500.

Defendant relies on Baxter Motors, Inc. v. Iowa Hardware Mutual Insurance Co. (1958), 15 Ill. App. 2d 524, 146 N.E.2d 797. However, we find the holding in Baxter clearly distinguishable from the case before us. In Baxter, the plaintiff allowed a prospective purchaser to have possession of a used car before it was paid for in reliance on the representations by the alleged purchaser. Neither the buyer nor the automobile were ever located again. The plaintiff sought recovery from the defendant on the insurance policy issued by defendant. However, the court ruled this loss was excluded from the policy because of the following exclusionary clause:

“ ‘(1) Loss resulting from the Insured voluntarily parting with title and possession of any automobile, if induced so to do by any fraudulent scheme, trick, device, false pretense; and
(2) Loss resulting from embezzlement, conversion, secretion, theft, larceny, robbery or pilferage committed by any person including any employee, entrusted by the Insured with either custody or possession of the automobile.’ ” (15 Ill. App. 2d 524, 526.)

In our opinion, this exclusionary clause is far broader than the one in the instant case. It expressly precludes coverage in cases involving fraud, trickery, or false pretenses as well as those involving the sort of theft or larceny which had occurred. Clearly, this exclusionary clause covers a far greater range of situations than does the clause in the instant case. Also, it is clear and specific as to the types of transactions sought to be excluded from coverage.

Defendant urges that the language of the exclusion is clear and unambiguous and the taking of the automobile in the instant case was simply a conversion which thus brings the matter directly within the exclusion. However, plaintiffs also find no ambiguity in the exclusion but reach the opposite result. The courts of Illinois have defined an ambiguous writing as “ ‘one capable of being understood in more senses than one ° * V ” Standard Steel & Wire Corp. v. Chicago Capital Corp. (1975), 26 Ill. App. 3d 915, 919, 326 N.E.2d 33, quoting First National Bank v. Victor Comptometer Corp. (1970), 123 Ill. App. 2d 335, 341, 260 N.E.2d 99.

In our opinion this exclusion is not ambiguous. It appears to us that defendant has taken the manifestly erroneous position of seeking to determine the meaning of this clause simply and only by reference to the word “conversion.” The entire clause and all language therein must be considered in evaluating its meaning. (See St. Paul Fire & Marine Insurance Co. v. Frankart (1977), 69 Ill. 2d 209, 216, 370 N.E.2d 1058.) Although the transfer of possession of the automobile in the instant case may be classified as a conversion, it definitely was not a conversion by a person who had “the vehicle due to any lien, rental or sales agreement” as required by the exclusion. And, although a conversion, the taking was definitely a theft. The policy itself specifically covers “theft.” In the State of Illinois theft is specifically defined by statute as including control over property of an owner “by deception.” Ill. Rev. Stat. 1979, ch. 38, par. 16-1 (b).

Under these circumstances we are constrained to follow the cases cited by plaintiffs as above reviewed. We find the exclusionary clause not applicable to the facts in the case before us.

The order dismissing the plaintiffs’ complaint is therefore reversed and the cause is remanded for further proceedings.

Judgment reversed; cause remanded.

McGLOON and O’CONNOR, JJ., concur.


author: JUSTICE DOWNING

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. THERESA ROGERS, Defendant-Appellant.
    First District (2nd Division)
    No. 80-2700
    Opinion filed February 2, 1982.
    Stanley L. Hill, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, J. Mark Lukanich, and Michael J. Kelly, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE DOWNING

delivered the opinion of the court:

Defendant was charged by information with aggravated battery (Ill. Rev. Stat. 1979, ch. 38, par. 12 — 4(a)) and cruelty to children (Ill. Rev. Stat. 1979, ch. 23, par. 2368). After a bench trial, defendant was found guilty of endangering the life or health of a child, a misdemeanor (Ill. Rev. Stat. 1979, ch. 23, par. 2354), and sentenced to one year probation.

Three grounds for reversal are presented by defendant: first, that she was not proved guilty beyond a reasonable doubt; second, that the finding of the trial court amounted to an improper inconsistent verdict; and third, that the statute under which she was convicted is unconstitutional in that it fails to provide adequate notice of the conduct it proscribes.

Defendant Theresa Rogers is the mother of Marinda Rogers, the victim. Marinda was six months old on the date of the incident. Marinda’s father is Byron Hampton, who is not married to defendant. At the time of the incident, defendant, Marinda, and Byron lived with Byron’s parents, Mr. and Mrs. John Hampton, Sr.

Byron Hampton testified that he went to work on the day of the incident at 4 p.m., leaving defendant and the baby at home. He noticed no injuries on the baby. Defendant was mixing pina coladas when he left. Byron returned home on a break at 8:30 p.m. Defendant was drunk and smoking a cigarette. The baby had a cigarette burn on her left eyelid. Byron didn’t recall defendant’s answer to his question of how the burn was caused. He went back to work.

Returning home around 11:30 p.m., Byron found defendant lying in his parents’ bed, and Marinda in his bed. The baby had sustained multiple injuries. Her face was bruised, her arms had scratches, and her right leg appeared broken. When he saw the baby, Byron went into his parents’ room and kicked defendant in the head, knocking her hearing aid out. He then hit her side. Byron had called his father and brother when he saw the baby, and they arrived home. Defendant fled the house and returned with the police, and they all went to the hospital with the baby. Byron admitted on cross-examination that he had a temper, and that he once put his fist through a wall in the house. He also stated that he has never seen defendant hit the baby.

John Hampton testified that he was Byron’s father. He was at work the evening of the incident, where he received a call from Byron at 11:45 p.m. He went home and saw the baby all bruised. Defendant was drunk and incoherent, and half a fifth of Crown Royal whiskey was missing from his liquor supply. The half empty bottle was on the kitchen table. When shown People’s exhibits Nos. 1-5, photos of Marinda taken at the hospital, he stated that the full extent of her bruises was not visible in the pictures. On cross-examination, he conceded that two years ago, he called the police and charged defendant with breaking into his house.

Police officer Gregory Ramirez testified that he responded to a child-abuse complaint at Michael Reese Hospital. In his initial conversation with defendant, she stated that she didn’t know how Marinda’s injuries were caused. Later, she told a police investigator that she left the baby with a sitter and found her in that condition when she picked her up. On cross-examination, Ramirez stated that although defendant appeared intoxicated, she didn’t smell of alcohol.

Janice Yokley testified that she was a licensed day care provider, and that she cared for Marinda for four days, February 11-14. The baby had no marks the last time she saw her.

. Carlos Alberto Flores testified that he was a third-year pediatric resident at Michael Reese Hospital, and that he examined Marinda. In sum, the baby had the following injuries: facial bruises, random scratches, fractured arm, fractured femur, fractured skull, and a cigarette burn on her eyelid. Marinda was placed in traction to treat the femur fracture. Dr. Flores stated that the femur was the hardest bone to break in an infant.

Defendant testifed she was hard of hearing and had to read lips when not wearing her hearing aid; that Byron was very jealous and beat her up several times; that she called the police once and had him charged with battery; that on the day of the incident, she was out on a job interview in the morning and Byron was at home with Marinda; and that he was drinking Crown Royal.

Defendant further testified that after Byron left for work, she gave the baby a warm bath. The doctor had instructed her to do so to bring the baby’s fever down. The telephone rang while the baby was in the bath, so defendant picked up the baby and went through the kitchen to answer the phone. In the kitchen, the baby jumped from her arms, fell to the kitchen table, and then fell to the floor. Defendant put a cold rag on the baby’s head, fed her, and then put her to sleep in Byron’s bed. Defendant then had a can of Chámpale and lay down in the other bed. She awoke to Byron’s kick on the head. Her hearing aid was knocked out and broken.

Defendant explained her initial story to the police about the babysitter as a product of her fear of being thought a bad mother for dropping the child.

In rebuttal, the State introduced a stipulation to the testimony of Dr. Flores. His opinion was that it was unlikely that the skull and arm fractures occurred in the fall described by defendant, and that the leg fracture could not have occurred in that fall.

I

We first consider defendant’s claim that she was not proved guilty beyond a reasonable doubt. This argument is premised on the circumstantial nature of the State’s case; no eyewitnesses to the beating of Marinda Rogers were produced. When a conviction is based on circumstantial evidence, the facts proved must not only be consistent with the guilt of the accused but inconsistent with any reasonable hypothesis of innocence. (People v. Gilbert (1978), 58 Ill. App. 3d 387, 392, 374 N.E.2d 739.) Defendant suggests that the evidence is consistent with the theory that Byron Hampton beat Marinda, and with the theory that the injuries were accidentally inflicted. We disagree.

The trial was a question of credibility. The evidence is clear that only defendant and Byron were involved with the baby. The trial court clearly believed Byron’s testimony that he did not commit the crime and disbelieved defendant’s testimony that she did not commit the crime. Defendant presents no basis for this court to doubt the trial court’s determination of credibility. We do not believe that the hypothesis that Byron Hampton committed the crime is reasonable.

The testimony of Dr. Flores established that the injuries could not have occurred in the fall as described by defendant. Although defendant argues that this testimony does not preclude the injury occurring in another accident, there is no evidence in the record of any other accident. Where an accused elects to justify her connection with the crime, she “must tell a reasonable story or be judged by its improbabilities.” (People v. Gilbert (1978), 58 Ill. App. 3d 387, 392.) We do not believe that the hypothesis that the injuries were accidentally inflicted is reasonable.

In our opinion, based upon the record, defendant was clearly proved guilty beyond a reasonable doubt.

II

Next we consider defendant’s contention that the finding of the trial court was an impermissible inconsistent verdict. “Verdicts of guilty of crime A but not guilty of crime B, where both crimes arise out of the same set of facts, are legally inconsistent when they necessarily involve the conclusion that the same essential element or elements of each crime were found both to exist and not to exist.” People v. Murray (1975), 34 Ill. App. 3d 521, 531, 340 N.E.2d 186.

Defendant relies on People v. Hairston (1970), 46 Ill. 2d 348, 263 N.E.2d 840, cert, denied (1971), 402 U.S. 972, 29 L. Ed. 2d 136, 91 S. Ct. 1658, and People v. Pearson (1973), 16 Ill. App. 3d 543, 306 N.E.2d 539, in support of her argument that a legally inconsistent verdict is not permitted. She contends that her acquittal on the felony charges of aggravated battery and cruelty to children and her conviction on the misdemeanor charge of endangering the life of a child are inconsistent.

The fallacy in defendant’s argument is that there was no acquittal of the felony charges. She was found guilty of endangering the life of a child by the trial court. No finding was entered on the two charges contained in the information, aggravated battery and cruelty to children. Specifically, the trial court stated:

“Of course, there is no doubt that this child sustained very painful injuries, required long hospitalization * * *;
Accordingly, there will be a finding of guilty of the lesser included offense of endangering the life of a child 0 w

We believe that the finding of the trial court was not inconsistent because there was only one finding: guilty of endangering the life. There was no finding on the other two offenses. If there was only one finding, there is nothing with which it can be inconsistent. See, e.g., People v. Chisum (1975), 30 Ill. App. 3d 546, 548, 333 N.E.2d 546, appeal denied (1975), 61 Ill. 2d 598.

We recognize, of course, the cases which state that where a finding of guilty is entered on a lesser included charge and no finding is entered on the greater charge, there is an implied acquittal on the greater charge. (People v. Roberts (1976), 36 Ill. App. 3d 811, 818, 345 N.E.2d 132, appeal denied (1976), 63 Ill. 2d 561; see also People v. Thompson (1973), 11 Ill. App. 3d 752, 758, 297 N.E.2d 592.) These cases, however, are in the context of double jeopardy. The usual situation is that a conviction on the lesser offense is reversed due to trial errors, and the reviewing court states that there cannot be a retrial on the greater offense. This is consistent with the double jeopardy principle that conviction of a lesser included offense bars prosecution on the greater offense. Illinois v. Vitale (1980), 447 U.S. 410, 420, 65 L. Ed. 2d 228, 238, 100 S. Ct. 2260, 2267; People v. Gray (1977), 69 Ill. 2d 44, 49-52, 370 N.E.2d 797, cert, denied (1978), 435 U.S. 1013, 56 L. Ed. 2d 395, 98 S. Ct. 1887.

The instant case does not arise in a double jeopardy context. The question here is whether the finding of the trial court was inconsistent. Inconsistency occurs when a verdict on one count is premised on the existence of an element of the offense and a verdict on another count is premised on the nonexistence of the same element. An inconsistent finding implies that the trial court was confused, and this requires the conclusion that the defendant was not proved guilty beyond a reasonable doubt. People v. Murray, 34 Ill. App. 3d 521, 532.

The experienced and learned trial court was not confused in the instant case. The only inconsistency is that which is implied for purposes of double jeopardy. Since this is not a double jeopardy case, we will not imply an acquittal on the charges of aggravated battery and cruelty to children. We thus reject defendant’s argument.

Ill

Defendant contends that the statute under which she was convicted is unconstitutional in that it does not provide adequate notice of the conduct it proscribes. The identical argument was rejected by the supreme court in People v. Vandiver (1971), 51 Ill. 2d 525, 283 N.E.2d 681. We, therefore, must also reject this contention.

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

Affirmed.

STAMOS, P. J„ and HARTMAN, J., concur.


author: JUSTICE McGILLICUDDY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FRED REED, Defendant-Appellant.
    First District (3rd Division)
    Nos. 80-61, 80-68 cons.
    Opinion filed February 3, 1982.

      Ralph Ruebner and Susan Bandes, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Marcia B. Orr, James S. Veldman, and Warren A. Zimmerman, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McGILLICUDDY

delivered the opinion of the court:

Following a jury trial, the defendant, Fred Reed, was convicted of two counts of murder and one count of armed robbery. He was sentenced to concurrent prison terms of 50 to 100 years for each murder and 20 to 30 years for armed robbery.

On appeal the defendant raises the following issues: (1) whether the trial court erred in denying defendant’s motion to quash his arrest and suppress evidence or, in the alternative, whether defendant’s counsel was incompetent by presenting insufficient evidence to support that motion; (2) whether the trial court erred in refusing the compulsion instruction tendered by the defendant; (3) whether the defendant was accountable for the armed robbery offense; and (4) whether an armed robbery instruction tendered by the State was improper. This opinion will discuss only that testimony relevant to these issues.

The defendant and Lonnie Young, also known as Lonnie Hall, were indicted for the murder of Michael Robbins and the murder and armed robbery of Beverly Truitt. The indictments against Hall were nolle prosequied.

At the hearing on the defendant’s pretrial motion to quash his arrest and to suppress evidence, the defendant presented one witness, Sergeant Edward Adorjan of the Chicago Police Department. Adorjan stated that on September 2, 1977, at about 4 p.m., he went with Investigators O’Connor and Zuley to the defendant’s apartment located in the same building as the victims’ apartments. Marie Brown, the defendant’s girlfriend, was in the apartment. The officers were dressed in civilian attire. The defendant arrived a short while later, and Adorjan informed him that they wanted to question him regarding the deaths of Robbins and Truitt. The defendant was asked to accompany the officers to the police station. Reed agreed to go and Brown was permitted to accompany him. Reed was not told that he was under arrest nor was he handcuffed. Adorjan never asked the defendant whether he wanted to answer the questions at his apartment, and at the station the defendant was never told he was free to go. Adorjan stated that the defendant would have been allowed to leave until about 8 p.m. Adorjan left the station at 5:30 p.m.

The defendant’s motion to quash his arrest was denied. The defendant then made a motion to suppress the written and oral statements he made at the police station. During the hearing on this motion, Investigator Theodore O’Connor testified that the defendant agreed to go to the police station for questioning. At the station the defendant was taken to an interview room and was given his Miranda warnings. O’Connor conversed with the defendant for about a half hour and then talked to Marie Brown who was in the main office. O’Connor stated that after his first conversations with Reed and Brown, the defendant could have left the station.

Marie Brown testified that the police officers asked the defendant to accompany them to the station and that Reed said he would go. Neither Brown nor Reed were handcuffed by the police.

The defendant testified that on September 2, 1977, the police indicated to him that they wanted to question him about Robbins and Truitt. The defendant testified that he did not know the men were police officers when he went with them. The defendant also testified that he knew the men were officers because they had shoulder holsters and that he went with them involuntarily because he was told to go. After repeatedly being asked whether he was forced to go with the officers, the defendant repeatedly answered that he was told to go and had no other choice.

The defendant’s second motion to suppress his statements was denied.

At trial, Investigator O’Connor repeated his testimony concerning his visit with Adorjan and Zuley to the defendant’s apartment on September 2, 1977. He stated that the officers did not have their weapons drawn when the defendant arrived. O’Connor did not know whether the defendant would have been placed under arrest if he had refused to go to the station.

O’Connor further testified that at about 5 or 5:30 p.m., the defendant was taken into an interview room and was given his Miranda warnings. He was not handcuffed. Reed told O’Connor that he had known Robbins and Truitt and discussed the circumstances under which he had last seen Robbins alive on Saturday, August 27.

O’Connor then spoke to Marie Brown and thereafter had a second conversation with the defendant. O’Connor told the'defendant that Brown said she and Reed had seen Robbins on Sunday morning. The defendant then stated that “Big 50,” a drug pusher, had held a meeting on Sunday and told Robbins, a heroin pusher, that no heroin would be sold. Robbins threatened to call the police and left.

O’Connor told the defendant that Denise Johns, Beverly Truitt’s sister, informed the police that Reed had given Robbins a .32-caliber automatic gun for protection. The defendant admitted that he had given Robbins a gun on Friday, August 26.

O’Connor stated that at about 9 or 10 p.m., he asked the defendant about two rings and a silver bracelet he was wearing because the items appeared to be feminine. The defendant could not remember the names of the stores he purchased the jewelry at and then stated he bought the rings from a “guy on the street” and found the bracelet in a garbage can. O’Connor testified that the defendant was no longer free to leave when he could not explain how he obtained possession of the jewelry.

After O’Connor left the interview room occupied by Reed, he took Marie Brown to another interview room and asked her about two rings she was wearing. He then showed the jewelry to Johns and returned to talk to the defendant. He asked the defendant whether the defendant had a necklace with blue stones. The defendant responded negatively and at 10:10 p.m. signed a form consenting to the search of his apartment. A short while later, Officers Epplen, Stachula and Zuley returned to the station with the necklace found in Reed’s apartment. The necklace was shown to Johns and then to the defendant. At this point, the defendant was under arrest. At about 10:30 or 11 p.m., when the defendant asked if he could leave, he was told he would be placed in the lockup.

Sergeant Adorjan testified that on September 3,1977, he interviewed Marie Brown at about 10:40 a.m. and interviewed the defendant at about 2:15 p.m. The defendant was given his Miranda warnings and was informed of statements made by Brown. The defendant told Adorjan about a meeting held several days before Robbins’ death concerning narcotics traffic. After Robbins left the meeting, there was talk of killing him. The defendant further stated that on Sunday evening, at about 10:30 or 11 p.m., Lonnie Hall knocked on the defendant’s apartment door, showed him a gun and told him that he wanted Reed to help him enter Robbins’ apartment. The defendant and Hall went downstairs to Robbins’ apartment. The defendant knocked on the door and identified himself. When Robbins opened the door, Lonnie Hall forced his way into the apartment and ordered Robbins to lie on the bed. Hall told the defendant to tie Robbins up and the defendant complied. Hall placed a pillow over Robbins’ head and fired two shots. As Hall and the defendant were leaving Robbins’ apartment, Beverly Truitt opened her apartment door. Hall pushed her into the apartment. The defendant heard two shots and saw Hall come out with some jewelry. The defendant asked for some of the jewelry and was given three or four rings, a bracelet and a necklace. The defendant then returned to his apartment.

Adorjan further testified that Assistant State’s Attorney Michael Laird arrived at the station at about 3 or 3:30 p.m. Laird talked to the defendant for about 15 or 20 minutes, and the defendant agreed to give a written statement.

The transcript of the statement given by the defendant was read to the jury by Assistant State’s Attorney Laird. In addition to the information previously disclosed to Adorjan, the defendant also told Laird that Hall had threatened to kill him if he did not go with Hall to Robbins’ apartment.

At the close of the trial, the jury found the defendant guilty of all counts.

I

The first issue raised on appeal is whether the trial judge improperly denied defendant’s motion to quash his arrest and suppress evidence resulting from that arrest. The defendant contends that Beverly Truitt’s jewelry and his statements to the police and the Assistant State’s Attorney were obtained as a result of a custodial interrogation conducted without probable cause in violation of Dunaway v. New York (1979), 442 U.S. 200, 60 L. Ed. 2d 824, 99 S. Ct. 2248. Dunaway held that a detention for custodial interrogation without probable cause for arrest is violative of the fourth amendment safeguards against illegal arrests. In Dunaway the defendant was taken from a neighbor’s home to the police station and interrogated. Although the defendant was not told he was under arrest, there was evidence that he was taken involuntarily and would have been arrested if he was uncooperative.

Illinois courts have followed Dunaway when they have determined that, under the totality of the circumstances, a defendant was taken into custody despite a disclaimer by the police of any intention to arrest. (See People v. McMahon (1980), 83 Ill. App. 3d 137, 403 N.E.2d 781; People v. Dowdell (1980), 81 Ill. App. 3d 266, 401 N.E.2d 295, cert, denied (1980), 449 U.S. 974, 66 L. Ed. 2d 236, 101 S. Ct. 385.) In reliance on these cases, the defendant contends that he was subjected to an unlawful custodial interrogation when the police transported him to the station without telling him that he did not have to go, gave him Miranda warnings at the station, and interrogated him for about four hours without telling him he was free to leave.

The Supreme Court of Illinois has held that not every stationhouse interrogation is necessarily so custodial as to indicate an arrest. (People v. Wipfler (1977), 68 Ill. 2d 158, 368 N.E.2d 870.) Similarly, People v. Miller (1980), 89 Ill. App. 3d 973, 412 N.E.2d 175, stated that police may question citizens during criminal investigations and citizens have a duty to cooperate, regardless of where the questioning occurs, provided the citizens have not been restrained. Miller held that a citizen is restrained when, considering all of the circumstances, a reasonable man, innocent of any crime, would have considered himself under arrest. Applying this test, the Miller court distinguished Dunaway and held that the defendant was not illegally seized or arrested when he was asked to accompany the police officers to the station and he agreed to do so. Although the defendant testified that he believed he was under arrest when he was taken to the station, the court held that his subjective knowledge and fears were irrelevant.

In the instant case, the defendant testified that he went involuntarily to the station because he was told to go and had no other choice. While we question the credibility of the defendant’s conflicting testimony, we note that in accordance with Miller the subjective beliefs of the defendant are irrelevant to a determination of whether the defendant was taken into custody and unlawfully restrained. As in Miller, the defendant was not handcuffed, the officers did not display firearms, and the defendant was not told he was under arrest. Additionally, the testimony of Marie Brown and officers Adorjan, O’Connor and Zuley was that the officers asked the defendant to come to the station and that he agreed to do so. Investigator O’Connor testified that the defendant said he would be glad to go with the officers. No force was applied against the defendant and, in fact, the officers appeared to have been accommodating since they granted Brown’s request to accompany the defendant. While the defendant was given Miranda warnings at the station, this fact does not require a determination that the defendant was taken into custody or placed under arrest. (People v. Wipfler; but see People v. Dowdell.) The defendant was not questioned continuously (cf. People v. Sturdivant (1981), 99 Ill. App. 3d 370, 425 N.E.2d 1046, and People v. Townes (1981), 94 Ill. App. 3d 850, 419 N.E.2d 604 (defendants involuntarily restrained when questioned intermittently at police stations for 9 and 12 hours respectively)) and was not considered by the police to be in custody until he was unable to explain the origin of the jewelry he was wearing. We believe that the custodial detention at this time was proper. Under the totality of circumstances as they existed in this case, we cannot say that a reasonable man in the defendant’s position would have considered himself in police custody or under arrest when he accompanied the police to the station and remained there for questioning. Therefore, the evidence that resulted from this questioning was not obtained in violation of the fourth amendment, and the trial court properly denied defendant’s motion to quash his arrest and suppress evidence.

The defendant alternatively argues that his trial counsel was incompetent because he did not question the defendant and Investigator O’Connor during the hearing on the motion to quash defendant’s arrest. However, since that testimony was elicited by defense counsel during the hearing on the defendant’s second pretrial motion, and since we have considered that evidence in determining that the defendant’s motion to quash his arrest was properly denied (see People v. Braden (1966), 34 Ill. 2d 516, 216 N.E.2d 808; People v. Billings (1977), 52 Ill. App. 3d 414, 367 N.E.2d 337), the merits of this argument need not be discussed.

II

The second issue raised on appeal is whether the trial court erred in refusing the compulsion instruction tendered by the defense. The defendant contends that the instruction should have been given with regard to the Robbins’ murder because the defendant’s statement, which was admitted into evidence, disclosed that the defendant participated in that murder under threat that Lonnie Hall would kill him if he did not go with Hall to Robbins’ apartment.

The affirmative defense of compulsion is codified in section 7 — 11 of the Criminal Code of 1961 (Criminal Code) (Ill. Rev. Stat. 1977, ch. 38, par. 7 — 11(a)). The statute provides:

“A person is not guilty of an offense, other than an offense punishable with death, by reason of conduct which he performs under the compulsion of threat or menace of the imminent infliction of
death or great bodily harm, if he reasonably believes death or great bodily harm will be inflicted upon him if he does not perform such conduct.”

The State argued at trial, and the trial court agreed, that the defendant was not entitled to the compulsion instruction because he committed an offense punishable by death — the commission of two murders (Ill. Rev. Stat. 1977, ch. 38, par. 9 — 1(b)(3)). This position was recently adopted by the Illinois Supreme Court in People v. Gleckler (1980), 82 Ill. 2d 145, 411 N.E.2d 849. Although Gleckler held that the legislature intended to preclude the defense of compulsion for any murder offense, in light of due process problems, the court had to determine whether the defendant in that case had adequate notice of this intention. Since the defendant committed two murders, the court found that the defendant had adequate notice that compulsion was unavailable as a defense because he committed a crime that could require the sanction of death. Therefore, in accordance with Gleckler, before we can conclude that in the instant case the compulsion instruction was properly denied, we must first determine whether the defendant committed an offense punishable by death.

According to section 9 — 1(b)(3) of the Criminal Code, a person found guilty of murder may be sentenced to death if he is convicted of murdering two or more persons regardless of whether the deaths occur as a result of the same act or of several related or unrelated acts so long as the deaths were the result of either an intent to kill more than one person or of separate premeditated acts. In the instant case, the defendant was convicted of murdering Robbins and Truitt based on the accountability theory. Thus, his guilt did not depend upon proof that he had the specific intent to commit murder. See People v. Morgan (1976), 39 Ill. App. 3d 588, 350 N.E.2d 27, affd (1977), 67 Ill. 2d 1, 364 N.E.2d 56, cert, denied (1977), 434 U.S. 927, 54 L. Ed. 2d 287, 98 S. Ct. 411.

Accountability for murder can be established by proof that before or during the commission of that offense, with the intent to promote or facilitate it, the defendant aided and abetted or attempted to aid and abet in the murder. (E.g., People v. Shaw (1981), 98 Ill. App. 3d 682, 424 N.E.2d 834; People v. Kirkpatrick (1979), 70 Ill. App. 3d 166, 387 N.E.2d 1284; see Ill. Rev. Stat. 1977, ch. 38, par, 5 — 2(c).) The intent to promote or facilitate a crime can be shown by evidence that the defendant shared the criminal intent of the principal or by evidence that there was a community of unlawful purpose. (People v. Gray (1980), 87 Ill. App. 3d 142, 408 N.E.2d 1150.) The latter is proved by evidence of prior deliberation to commit the offense or by the spontaneous and combined participation of a group in the perpetration of the offense. (People v. Torres (1981), 100 Ill. App. 3d 931, 427 N.E.2d 329.) One may aid or abet in the commission of a crime without actively participating in the overt act; and if the evidence shows he was present at the crime without disapproving or opposing it, this conduct can be considered by the trier of fact in concluding that the person assented to the criminal act, lent his countenance and approval, and was thereby aiding and abetting the crime. (E.g., People v. Morgan (1977), 67 Ill. 2d 1, 364 N.E.2d 56, cert, denied (1977), 434 U.S. 927, 54 L. Ed. 2d 287, 98 S. Ct. 411; People v. Hill (1968), 39 Ill. 2d 125, 233 N.E.2d 367, cert, denied (1968), 392 U.S. 936, 20 L. Ed. 2d 1394, 88 S. Ct. 2305.) The failure to report the offense is also relevant to establishing accountability. People v. Torres.

That the defendant was accountable for the Robbins’ murder is not disputed. We believe that there also was sufficient evidence to find the defendant accountable for Truitt’s murder. While it appears that Truitt’s murder was a spontaneous reaction by Hall to Truitt’s appearance after Robbins’ murder, this fact is not a defense when the evidence indicates involvement by the defendant in that spontaneous act. (See People v. Tyler (1979), 78 Ill. 2d 193, 399 N.E.2d 975.) We believe the defendant aided and abetted in Truitt’s murder because he was present at the scene of the crime, having remained outside her apartment (see People v. Tyler (defendant considered to be present at rape although rape occurred in another room)), and did not oppose or disapprove of Hall’s actions. Although he was free to do so, the defendant did not leave the area or seek aid from others (People v. Gray) and instead waited for Hall to return. Reed also lent his countenance to Hall’s actions by asking for some of the jewelry taken from Truitt’s apartment. He did not report the incident to the authorities.

In view of the above evidence, we hold that the defendant was accountable for both murders and that he had the intent to promote and facilitate them. We further believe that this finding of intent satisfies the requirements of section 9 — 1(b)(3) of the Criminal Code; that, therefore, the defendant was convicted of an offense punishable by death; and that the compulsion instruction tendered by the defense was properly refused.

Ill

The third issue raised by the defendant is whether he was accountable for the armed robbery of Beverly Truitt. The defendant contends that he did nothing to promote or facilitate the commission of that offense, that he had no idea it would occur and took no part in its planning.

For the reasons we determined that the defendant was proved accountable for Truitt’s murder, we also hold that he was proved accountable for the armed robbery. The defendant was present at the scene of the crime, did nothing to disassociate himself from that occurrence and asked for and received some of the jewelry taken in the robbery. See People v. Clifford (1976), 38 Ill. App. 3d 915, 349 N.E.2d 922 (involvement can be inferred from activities that occur after the offense, such as the possession of stolen property).

IV

The final argument raised by the defendant is that the court erred in instructing the jury regarding the inference it could draw from the defendant’s possession of recently stolen property. Over defense objection the following instruction was given:

“If you find that the defendant had exclusive possession of recently stolen property, and there is no reasonable explanation of his possession, you may infer that the defendant obtained possession of the property by Armed Robbery.”

This instruction was taken from instruction number 13.21 of the Illinois Pattern Jury Instructions, Criminal (1968), an instruction for the offense of theft. The defendant relies on Barnes v. United States (1973), 412 U.S. 837, 37 L. Ed. 2d 380, 93 S. Ct. 2357, and argues that the use of this instruction for the offense of armed robbery is violative of due process of law since armed robbery cannot be inferred from the fact of possession of stolen property.

The argument raised by the defendant in the instant appeal was addressed and rejected by this court in People v. Hendricks (1976), 41 Ill. App. 3d 178, 353 N.E.2d 177. Hendricks stated that the instruction in question had to be read with all other instructions given to the jury and that, taken as a whole, the instructions in that case adequately informed the jury of the elements of armed robbery.

In the instant case, the jury did receive other instructions on the elements of armed robbery. As Hendricks remains the law in this State (see, e.g., People v. Gaskins (1980), 82 Ill. App. 3d 37, 402 N.E.2d 258; People v. Johnson (1979), 74 Ill. App. 3d 1037, 393 N.E.2d 40; People v. Franklin (1978), 64 Ill. App. 3d 400, 380 N.E.2d 1082; People v. Duckins (1978), 59 Ill. App. 3d 96, 375 N.E.2d 173), we apply it to the instant case and hold that error did not occur when the above-stated instruction was given to the jury.

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

Affirmed.

WHITE, P. J., and RIZZI, J., concur.

       At the time of trial, Denise Johns was deceased.