author: JUSTICE REINHARD

text:
    GARY-WHEATON BANK, Plaintiff-Appellant, v. HENRY J. BURT, JR., Defendant-Appellee.
    Second District
    No. 81-352
    Opinion filed March 10, 1982.

      Robert C. Liston, of Wheaton, for appellant.
    R. Terence Kalina, of Rathje, Woodward, Dyer & Burt, of Wheaton, for appellee.
   JUSTICE REINHARD

delivered the opinion of the court:

Plaintiff, the Gary-Wheaton Bank (bank), brought this suit against the defendant, Henry J. Burt, Jr., seeking to collect on a “duplicate original” promissory note given to the bank as collateral for a loan it made to Little Bear, Ltd, The bank alleged that it had loaned money to Little Bear, Ltd., a limited partnership of which Burt was a limited partner, taking as collateral an assignment of this note which was payable to Little Bear, Ltd., by Burt as payor. The loan was not paid when it became due, and the bank obtained a default judgment against Little Bear, Ltd. for the amount of the loan plus interest. That judgment was not paid, and the bank in this action is seeking payment from Burt alone. Following a bench trial, the court found for Burt and against the bank.

The evidence is substantially undisputed. It shows that in 1973, Burt purchased, in his name alone, a three-tenths interest in Little Bear, Ltd., a limited partnership. The interest which was in Burt’s name was in fact a joint venture consisting of Burt, James Knippen, Fredrick Noorlag and Paul Matson. In June 1974, Burt acquired another three-tenths interest. For each three-tenths interest, Burt paid $30,000 cash and executed a nonnegotiable note for $121,200 which was in his name alone. The notes were to be paid in annual installments of $24,240 over a period of five years. The first note, the subject of this suit, was executed on December 15,1973, and the first installment was due November 15,1974. The second note was executed June 15, 1974, and the first installment was due December 1,1974. The notes were made payable to Little Bear, Ltd.

Colorado Little Bear Company, Inc., was the general partner of Little Bear, Ltd. Donald Janson was the president and shareholder of Colorado Little Bear Company, Inc. The stated purpose of Little Bear, Ltd., was to purchase and develop land in Colorado, specifically, 290 acres known as the Hagemeister Ranch. In late 1973 or early 1974, Donald Janson, acting for Little Bear, Ltd., bought the Hagemeister property under contract.

In June 1975, Janson contacted Burt about seeking a loan for Little Bear, Ltd., so it could meet its obligation on the next installment due on the Hagemeister property contract. Burt had thought the payments from his and the other limited partners’ capital notes were sufficient to pay the installments on the Hagemeister contract when they fell due. When Burt asked Janson about this, Janson told him that he had run into unexpected expenses when trying to get the Hagemeister property rezoned. Janson also informed Burt that he was negotiating for the purchase of a piece of property contiguous to the Hagemeister property which already had the suitable zoning.

Burt agreed to contact Jerry Bradshaw, president of the GaryWheaton Bank, to arrange a meeting to discuss a loan. On June 9, 1975, Burt and Janson met with Bradshaw to discuss the loan. Charles Thorson, vice-president and Loan Division manager, was also present at the meeting. The amount of the loan discussed was $38,000. It was to be used to make an installment payment under the land purchase contract with Hagemeister.

Since Burt’s father was a director of the bank and Burt’s law firm had represented the bank from time to time in the past, Bradshaw wanted to act favorably on the loan request. When it was agreed that the loan would be made, Bradshaw gave Thorson the authority to structure the loan as he saw fit. Thorson requested that Burt personally guarantee the note evidencing the loan, which Burt refused to do. Burt agreed that the note which he had executed December 15, 1973, be used as collateral for the loan. Thorson requested an assignment of the note from Little Bear, Ltd., and delivery of the original note for their files. Thorson also requested financial statements of Janson, Little Bear, Ltd. and Burt. The loan was to be due in six months, on December 18, 1975, and to be repaid from amounts due the partnership as evidenced by Burt’s note.

Janson took the financial statements and a photocopy of Burt’s note to Thorson’s office on June 17, 1975. At that time Thorson requested the original of the note. Janson then went to Burt and requested that he execute a duplicate original of the note as the original was in safe keeping in Colorado. Burt said Janson told him he wanted to expedite matters and believed it would take too long for the original note to arrive from Colorado. Burt then agreed to execute the duplicate on the condition that the words “DUPLICATE ORIGINAL” were typed across the face “so that the Bank would know that that was not the note that they agreed to accept as collateral.” Burt further told Janson that he conditioned the signing of the duplicate original on the ground that the monies for the loan would not be disbursed until the bank received the original note. Burt signed an unsigned photocopy of the original note which he had executed on December 15,1973, and typed at the top “DUPLICATE ORIGINAL.”

Thorson testified that Janson returned on June 18, 1975, with the assignment of the note and the “duplicate original” note. Janson told Thorson the original note was safe in Colorado. However, he never told Thorson to delay disbursement of the funds until the original was presented. The bank accepted the note marked “DUPLICATE ORIGINAL” as collateral for the loan. The bank paid $40,000 to Colorado Little Bear Company, Inc., in check number 018643 dated June 18, 1975. Thorson never tried to obtain the original of the note which had been pledged to the bank.

Burt testified that he was not actively involved in any transactions negotiated on behalf of Little Bear, Ltd. He believed that his note and the notes of the other limited partners were the only assets of the partnership. Burt made no representations at the June 9, 1975, meeting concerning Little Bear, Ltd.’s financial condition. Also, Burt did not know his December 15, 1973, note had in fact been previously pledged by Janson to Hans Hagemeister as security for the payments on the land contract.

Within one or two months after the bank had loaned Little Bear, Ltd., the money, Burt learned that his note had been used to secure the Hagemeister contract. Both Burt and Thorson testified that Burt contacted Thorson in the fall of 1975 to warn him of financial problems of Little Bear, Ltd. Prior to Burt’s warning, Thorson had been told by another bank employee that Hawthorne Bank was involved in litigation concerning capital contribution notes of Little Bear, Ltd.

Hagemeister sued Burt and the other limited partners of Little Bear, Ltd., on Burt’s original note in Federal district court in Chicago. There was a release of the note pursuant to a settlement in excess of $100,000. Burt paid his share of the settlement, which amounted to $36,500. Burt was also involved in another case with Hawthorne Bank concerning the second note he had executed. The Gary-Wheaton bank was not involved in either of these suits. In an order dated June 13, 1977, in the litigation with Hawthorne Bank, Burt was relieved of all responsibility to the limited partnership.

Bradshaw testified that at the time the loan was finalized by Thorson, that he, Bradshaw, did not know that the note which was used for collateral was a duplicate original. In his experience as a banker, he has never seen as collateral a note marked “duplicate original.” Thorson also testified that he had never seen a duplicate original promissory note used as collateral. Burt called William J. Davis to testify as a banking expert. After a hypothetical question had been presented to him, Davis testified that good banking practice requires that you should inquire into the whereabouts of the original document. Davis believed that here there was a deviation from reasonable banking standards in effect at the time of the transaction.

The trial court found against the bank on all three of its theories stated in its second amended complaint which were based upon (1) an obligation created by the “duplicate original” note; (2) an implied contract which guaranteed the loan to Little Bear, Ltd.; and (3) an actual or constructive fraud by Burt. On appeal the bank raises the following issues: (1) that the court erred in not finding a constructive fraud; (2) that the court erred in not finding an implied contract; (3) that the court erred in not finding an obligation was created by the “duplicate original” note; (4) that Burt was estopped from raising any defense against the validity of the “duplicate original” note; (5) that two of Burt’s affirmative defenses, failure of consideration for the note and collateral estoppel by a judgment entered in another case, were not available to him; and (6) that two findings of fact by the court were against the manifest weight of the evidence. The bank has abandoned any claim based upon a theory of actual fraud.

The bank contends that although the signing of the “duplicate original” note did not create a double obligation, the act of pledging the second note to secure a second obligation did. The trial court found that in view of Burt’s refusal to personally guarantee the loan to Little Bear, Ltd., and his clear limitation of liability on the capital note, there was “no conduct by the parties to believe there was any intent that this [duplicate original] note was to be, in effect, some accommodation or guarantee.” The issue to be resolved is what is the legal effect of the “duplicate original” note under the facts and circumstances presented in the record before us.

Generally, when a substitute instrument is executed subsequent to the original, it adds no more to the obligation, liabilities or rights of the parties to the instrument than does the contemporaneous execution of a duplicate note along with the original. It is merely new evidence of the same debt, and no new liability is created thereby. (11 Am. Jur. 2d Bills and Notes §59 (1963).) In Samland v. Ford Motor Co. (1932), 123 Neb. 819, 244 N.W. 404, when a duplicate note was issued for a check which had been lost and “duplicate” had been written across the face of the note, the court held that the duplicate added no more to the obligation and rights of the parties. (123 Neb. 819, 826, 244 N.W. 404, 407.) Duplicate is defined as two written documents which are substantially alike, “so that each might be a copy or transcript from the other, while both stand on the same footing as original instruments, they are called ‘duplicate.’ # ° ° The term is also frequently used to signify a new original, made to take the place of an instrument that has been lost or destroyed, and to have the same force and effect.” Black’s Law Dictionary 593 (4th ed. 1957).

The bank cites First Trust & Savings Bank v. Powers (1945), 325 Ill. App. 600, 60 N.E.2d 582, reversed (1946), 393 Ill. 97, 65 N.E.2d 377, as standing for the proposition that when a writing is executed in duplicate or multiplícate, each copy has the same legal effect as any other copy; no original need be produced. Upon examination of this case, we find that the court was referring to copies contemporaneously executed. The court was also merely ruling on the admissibility of said duplicate documents into evidence under the best evidence rule. The court does not mention the legal effect of a duplicate executed at some time subsequent to the execution of the original. This case is inapplicable to the present situation.

Examination of the pertinent facts gives the best indication of what the intentions of all the parties were as to what was to be the collateral for the loan to Little Bear, Ltd. It was obviously to be the original note. Bradshaw testified that Burt said his existing promissory note would be collateral. Thorson testified that when Janson brought him a photocopy of the original note, he told him he needed the original note. Thorson further said he had never conceived of a duplicate note being used. Yet that is what the bank accepted instead of the original note. Burt testified that he executed the “duplicate original” as evidence to the bank that the original note was in existence but instructed Janson to furnish the bank the original note prior to any disbursement of the loan. Thus, it appears to us that the “duplicate original” note was not intended to create a new obligation. While the bank eventually accepted the “duplicate original” note as collateral instead of the original note, it is evident that the collateral still was the original note.

While it is true generally that a creditor may look to collateral for payment of a loan when the principal defaults (see General Grocer Co. of Illinois v. Bachar (1977), 51 Ill. App. 3d 907, 365 N.E.2d 1106), here the parties intended the original note to be the collateral. The bank accepted the “duplicate original” as the collateral instead of waiting for the original note. Since the “duplicate original” is merely evidence of the same debt and creates no new liability (see 11 Am. Jur. 2d Bills and Notes §59 (1963)), the “duplicate original” note did not evidence any obligation upon which the bank could collect in case Little Bear, Ltd., defaulted upon the loan. The bank, in accepting a “duplicate original” note knowing the original note was the collateral, cannot now attempt to create a new obligation upon learning that the original note had been previously assigned to someone else. Under the rather unique circumstances here, there can be no cause of action against Burt based upon the “duplicate original” note.

The bank advances next the argument that there was a “special relationship” between the bank and Burt out of which arose a duty on the part of Burt to disclose all information material to this transaction. The bank contends that the failure by Burt to disclose information about the financial condition of Little Bear, Ltd., and to inform the bank that the proceeds of the loan should not be disbursed until the bank received the original note amounted to a constructive fraud in view of this “special relationship.” The “special relationship” purportedly arises from the fact that Burt’s father was on the board of directors of the bank, Burt’s law firm had represented the bank, and Burt was well known to Bradshaw, president of the bank.

Generally, fraud means anything intended to deceive, including all acts, omissions and concealments involving a breach of legal or equitable duty, trust or confidence resulting in damage to another. (Carey Electric Contracting, Inc. v. First National Bank (1979), 74 Ill. App. 3d 233, 236, 392 N.E.2d 759.) Actual fraud is any false misrepresentation of a material fact made with knowledge of its falsity and with intent that it be acted upon and which is acted on to the injury of the other contracting party. (Pustelniak v. Vilimas (1933), 352 Ill. 270, 275, 185 N.E. 611; Mother Earth, Ltd. v. Strawberry Camel, Ltd. (1979), 72 Ill. App. 3d 37, 390 N.E.2d 393.) Fraud may also be inferred from the relationship of the parties or the surrounding circumstances regardless of any actual dishonesty of purpose. This type is called constructive fraud, and is defined as “any act, statement or omission which amounts to positive fraud or which is construed as a fraud by the courts because of its detrimental effect upon public interests and public or private confidence. It requires neither actual dishonesty nor intent to deceive, being a breach of legal or equitable duty which, irrespective of the moral guilt of the wrongdoer, the law declares fraudulent because of its tendency to deceive others.” (In re Estate of Neprozatis (1978), 62 Ill. App. 3d 563, 568, 378 N.E.2d 1345.) A constructive fraud is presumed from the circumstances and condition of the immediate parties to the transaction and the concern is with the relationship of the parties and whether a fiduciary relationship either in fact, or in law, existed between them. (Zeilenga v. Stelle Industries, Inc. (1977), 52 Ill. App. 3d 753, 757, 367 N.E.2d 1347.) Where a fiduciary relationship does not exist as a matter of law, e.g. principal and agent, attorney and client, it may nonetheless arise where trust and confidence, by reason of friendship, agency and experience are reposed by one person in another who, as a result, gains an influence and superiority over him. (Wold v. Wold (1976), 43 Ill. App. 3d 773, 777, 357 N.E.2d 627.) “Normal trust between friends or businesses, plus a slightly dominant business position, do not operate to turn a formal, contractual relationship into a confidential or fiduciary relationship. A confidential relationship only goes to a situation where one party, because of some close relationship, relies very heavily on the judgment of another.” Carey Electric Contracting, Inc. v. First National Bank (1979), 74 Ill. App. 3d 233, 238, 392 N.E.2d 759.

Clearly there is no fiduciary relationship which arises here as a matter of law, nor does the bank so contend. Nor do we find that the relationship between Burt and the bank under the circumstances was a “special relationship” which created a duty on Burt to speak, the absence of which may create a constructive fraud. There is nothing in the record to indicate that Burt or his law firm currently was an attorney for the bank or that his father’s status as a director of the bank had direct influence on this or any previous transaction with Burt. While Bradshaw wanted to make this loan to Little Bear, Ltd., because of a long relationship with Burt, this alone is insufficient to create a fiduciary relationship. (See Carey Electric Contracting, Inc. v. First National Bank (1979), 74 Ill. App. 3d 233, 392 N.E.2d 759.) In addition, there is no indication that Burt withheld relevant information to the detriment of the bank. Thorson knew the loan was to fund an installment payment due from Little Bear, Ltd., on an installment purchase contract, was aware that Burt specifically refused to personally guarantee the loan, realized that Little Bear, Ltd., was the party with which the bank was directly dealing for the loan, and received financial statements from Janson, Little Bear, Ltd. and Burt plus a copy of the limited partnership agreement. Burt had no knowledge that the original note had previously been assigned to a third party, and thus, did not himself mislead the bank. The bank and Burt possessed the same knowledge about the need for the loan in order to meet a current installment payment. We believe from this record that the trial court was correct in finding that there was no constructive fraud.

As another alternate theory of recovery, the bank contends that an implied contract arose directly between it and Burt. The bank alleges that this theory is “predicated upon the fact that defendant, through his words and actions during the loan application conference * * 8 led plaintiff to believe that: (a) he was indebted to Little Bear, Ltd. on the promissory note in question; (b) that he owed four payments thereon of $24,240 each due 11-15-75, 11-15-76, 11-15-77, 11-15-78; (c) that each of said payments would be paid when due; (d) that by virtue of the assignment/pledge of said note to plaintiff, he would make said payments directly to plaintiff (in the event Little Bear, Ltd. failed to pay) to the extent of the liability owed by Little Bear, Ltd. to plaintiff.”

There are two theories of implied contract, a contract implied in law and a contract implied in fact. A contract implied in law exists from an implication of law that arises from facts and circumstances independent of an agreement or consent of the parties. It is equitable in nature and based on the premise that no one should unjustly enrich himself at another’s expense. (Arthur Rubloff & Co. v. Drovers National Bank (1980), 80 Ill. App. 3d 867, 875, 400 N.E.2d 614.) A contract implied in fact arises not by express agreement but by a promissory expression which may be inferred from the facts and circumstances which show an intent to be bound. (Frey v. Belleville News-Democrat, Inc. (1978), 64 Ill. App. 3d 495, 381 N.E.2d 705.) “In a contract implied in fact the agreement defines the duty; in a contract implied in law the duty defines the contract.” (Arthur Rubloff & Co. v. Drovers National Bank (1980), 80 Ill. App. 3d 867, 875, 400 N.E.2d 614.) Both theories are based on quantum meruit or unjust enrichment; a party should not receive a benefit which would be unjust for him to retain without paying for it. Telander v. Posejpal (1981), 94 Ill. App. 3d 616, 626, 418 N.E.2d 444; Edens View Realty & Investment, Inc. v. Heritage Enterprises, Inc. (1980), 87 Ill. App. 3d 480, 486, 408 N.E.2d 1069.

The bank relies mainly on Central National Bank & Trust Co. v. Consumers Construction Co. (1972), 5 Ill. App. 3d 274, 282 N.E.2d 158, to support its allegation of an implied contract. There the bank refused to make a loan to a subcontractor because it could not get a sufficient financial statement concerning the subcontractor. The subcontractor later presented the bank with two letters from the general contractor. These letters verified the existence of a contract between the general contractor and the subcontractor and also stated when and how much the subcontractor would be paid. On the strength of these letters, the bank made the loan to the subcontractor.

The subcontractor defaulted on the contract with the general contractor, who then refused to pay either the subcontractor or the bank. The bank sued the general contractor. The trial court found that the bank was a third-party beneficiary to the contract between the general contractor and the subcontractor. Thus the bank derived its rights from the subcontractor. Since the subcontractor could not collect on the contract because it had defaulted, the bank also was barred from collecting from the general contractor. In reversing, the appellate court found that the effect of the letters was a contract between the bank and the general contractor. The court found that the promises made by the general contractor in the letters constituted a detriment to the bank, in that it loaned money in reliance on them, and a benefit to the general contractor, in that the loan enabled the subcontractor to do work for it.

That situation is clearly distinguishable from the case at bar. Burt never made any representations to the bank concerning Little Bear, Ltd.’s financial condition. The bank received a separate financial statement of Little Bear, Ltd., from Janson. Burt expressly refused to personally guarantee the loan to Little Bear, Ltd. Also, he made no representations to the bank that the promissory note would guarantee the loan, merely that it could be used as collateral to secure the loan. There was no express or implied representation by Burt, as there was by the general contractor in Central National Bank, that the loan would be paid by him. The loan here was between the bank and Little Bear, Ltd. Burt unequivocally refused to guarantee the note and limited his personal liability to the original promissory note which was his obligation as a limited partner to the partnership. The agreement was clear that the promissory note was collateral and created no new obligation between the bank and Burt. Under these circumstances, no obligation arose either implied in fact or in law from Burt to the bank.

The bank also argued at trial and now on appeal that Burt’s execution and delivery of the “duplicate original” promissory note induced the bank to rely upon this note as “good” collateral and he is equitably estopped from avoiding the consequences of his actions.

Equitable estoppel has been defined as the effect of the voluntary conduct of a party whereby he is precluded from asserting rights which might otherwise have existed against another party who has, in good faith, relied upon such conduct and has been led thereby to change his position for the worse. (Willowbrook Development Corp. v. Pollution Control Board (1981), 92 Ill. App. 3d 1074, 1078, 416 N.E.2d 385; Shockley v. Ryder Truck Rental, Inc. (1979), 74 Ill. App. 3d 89, 94, 392 N.E.2d 675.) As stated in Stewart v. O’Bryan (1977), 50 Ill. App. 3d 108, 365 N.E.2d 1019, six elements must be presented for the doctrine of equitable estoppel to be applicable:

“(1) Words or conduct by the party against whom the estoppel is alleged constituting either a misrepresentation or concealment of material facts; (2) knowledge on the part of the party against whom the estoppel is alleged that representations made were untrue; (3) the party claiming the benefit of an estoppel must have not known the representations to be false either at the time they were made or at the time they were acted upon; (4) the party estopped must either intend or expect that his conduct or representations will be acted upon by the party asserting the estoppel; (5) the party seeking the benefit of the estoppel must have relied or acted upon the representations; and (6) the party claiming the benefit of the estoppel must be in a position of prejudice if the party against whom the estoppel is alleged is permitted to deny the truth of the representations made.” (50 Ill. App. 3d 108, 110, 365 N.E.2d 1019.)

A fraudulent intent is not always necessary to estoppel. Although fraud is an essential element, it is sufficient that a fraudulent or unjust effect results from defendant’s conduct. (Cessna v. Montgomery (1976), 63 Ill. 2d 71, 86, 344 N.E.2d 447.) Although an estoppel may arise from silence as well as words, silence will not create an estoppel unless there is a positive duty to speak. (Town & Country Bank v. James M. Canfield Contracting Co. (1977), 55 Ill. App. 3d 91, 370 N.E.2d 630.) “A party claiming the benefit of an estoppel cannot shut his eyes to obvious facts, or neglect to seek information that is easily accessible, and then charge his ignorance to others.” Vail v. Northwestern Mutual Life Insurance Co. (1901), 192 Ill. 567, 570, 61 N.E. 651.

The bank relies principally on Shockley v. Ryder Truck Rental, Inc. (1979), 74 Ill. App. 3d 89, 392 N.E.2d 675, wherein the court states that when a person apparently adopts a position which reasonably leads someone into detrimental reliance, intention is not necessary for estoppel to arise, if to hold otherwise would have an unjust effect. (74 Ill. App. 3d 89,95,392 N.E.2d 675.) However, the court went on to note that questions of fact are presented concerning whether the person sought to be estopped is claiming the benefit of his alleged wrongful conduct and whether that person could reasonably have foreseen that his conduct might mislead the party claiming estoppel into detrimental reliance.

The intention of the parties to the loan, the bank and Little Bear, Ltd., was to make the loan to Little Bear, Ltd., upon execution of a promissory note signed by Janson for Little Bear, Ltd., execution of an assignment by Little Bear, Ltd., of the original promissory note from Burt, and delivery of the original note to the bank as collateral. However, only Janson and Thorson met to finalize the details, and when Thorson expected the original promissory note and instead was tendered a photocopy by Janson, Thorson told him to get the original note. When Janson returned the next day with the “duplicate original” note, Thorson accepted it and was told by Janson that the original was in Colorado. Burt had not met or conversed with Thorson since the original meeting at the bank.

From these circumstances, we conclude that the bank acted on its own in accepting the “duplicate original” note instead of the agreed-upon delivery of the original note. While it is obvious that Janson was not telling the truth about the location of the original note, there is no proof that Burt was aware of this fact. Thus it was the bank that departed from its own requirement that it receive the original note. Burt’s execution of a “duplicate original” note which was a photocopy of the original note except for the new signature and the words “DUPLICATE ORIGINAL,” is insufficient to cause reliance of the bank on that note since it knew that Burt would not incur any further liability beyond the original note. In short, the bank accepted the “duplicate original” note in deviation of the original intention of the parties and cannot now try to estop Burt from asserting defenses when all the parties agree that Burt expressly refused to incur any further liability.

The bank also raises an estoppel question based on the premise that as between two innocent parties, the less blameful should prevail. (See Montgomery Ward & Co. v. Peter J. McBreen & Associates (1976), 40 Ill. App. 3d 69, 72, 351 N.E.2d 324.) The bank relies on Richard’s Lumber & Supply Co. v. National Bank (1975), 32 Ill. App. 3d 835, 336 N.E.2d 820, in support of this proposition. In this case a bank had been given a mortgage trust deed as collateral for a loan. In loaning the money, the bank relied on several waivers of mechanics liens upon the subject property which had apparently been duly signed by the president of Richard’s Lumber & Supply Co., holder of the liens. The lumber company contended that although the waivers were signed, they had been signed in blank and stolen from the president’s office by the mortgagor, who was an employee of the lumber company. The trial court determined that such defense would not equitably overcome the position of the bank as an innocent third party which had loaned money in reliance on the properly signed waivers. The bank’s mortgage therefore had priority over the liens, which it otherwise would not have had. The court quoted Decatur Lumber & Manufacturing Co. v. Crail (1932), 350 Ill. 319, 325, 183 N.E. 228:

“ ‘° ° ° where one of two innocent persons must suffer by the fraud of a third person, the loss must fall upon him who by his conduct put it in the power of such third person to cause the injury.’ ” (32 Ill. App. 3d 835, 837.)

The court’s analysis concluded:

“Under the circumstances, where the bank paid money in reliance on what appeared to be regularly executed waivers of lien, in the normal course of business, and where the lienors seek to show the invalidity of the waivers on grounds of fraud, not involving the bank, there is a basic presumption of innocence of the bank, absent some indication from the facts that the bank in fact knew about or should have known about Witbrod’s [the mortgagor] fraudulent conduct.” 32 Ill. App. 3d 835, 838.

Under the circumstances in the present case, the bank did not loan money on what appeared to be a regularly executed note. Charles Thorson saw the words “DUPLICATE ORIGINAL” typed across the face of the note. Upon inquiring about the significance of that notation, Janson told him the original note was in Colorado. Thorson did not check further with Burt about this note or disbursement of the loan. Thorson took the “duplicate original” note anyway and disbursed the funds. Thorson knew Burt had refused to incur any additional liability beyond the original note. Burt’s conduct did not place Janson in a position to cause any injury to the bank, as did the endorsement in blank of the lien waivers in Richard’s Lumber ¿r Supply Co. Burt told Janson of specific limitations on the making of the duplicate original. He, in good faith, believed those limitations would be followed. No such limitations existed in Richard’s Lumber <b- Supply Co. Here, also, the bank itself was alerted to the absence of the original note. Despite this, the bank accepted the “duplicate original” note, proceeded with the loan, and disbursed the funds without having the original note in its possession. The bank was in a position to refuse to accept the “duplicate original” note which varied from the original intention of the parties. It was testified that the acceptance of a duplicate original note as collateral was a deviation from standard banking practices. In fact, both Bradshaw and Thorson had never seen, in their experience, a “duplicate original” note used as collateral for a loan. We do not find Burt’s conduct to be any more blameful under these facts than the bank’s. Accordingly, Burt is not to be estopped from asserting his defenses.

The bank also appeals from the trial court’s specific findings that Burt had put a clear limitation on his liability on the capital note and that there was no intention expressed to treat the “duplicate original” note as a guarantee. From our review of the evidence we do not believe that these findings were against the manifest weight of the evidence. It is well established that the trial judge is in a superior position to determine the witnesses’ credibility and to weigh the evidence, and a verdict based upon conflicting evidence should not be disturbed on appeal unless it is contrary to the manifest weight of the evidence. Career Opportunities Inc. v. Grant, Wright & Baker, Inc. (1980), 91 Ill. App. 3d 984, 987, 415 N.E.2d 463.

Finally, we need not review the bank’s contention on appeal that Burt’s affirmative defenses at trial of failure of consideration for the pledged note and collateral estoppel based upon a judgment in another case are not available to Burt as the trial court did not base its judgment upon either of these affirmative defenses which were in the pleadings.

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

Affirmed.

LINDBERG and NASH, JJ., concur.

       The second note, given for the second three-tenths interest, dated June 15, 1974, had been pledged as security for a loan from Hawthorne Bank. Hawthorne Bank sued upon this note.


source: Caselaw Access Project

author: JUSTICE STOUDER

license: Public Domain

text:
    DAVID I. HARKCOM et al., Plaintiffs-Appellants, v. THE EAST TEXAS MOTOR FREIGHT LINES, INC., et al., Defendants-Appellees.
    Third District
    No. 81-358
    Opinion filed March 8, 1982.

      David I. Harkcom, of Moline, for appellants.
    Peter C. Fieweger, of Katz, Me Andrews, Durkee, Balch & Lefstein, of Rock Island, for appellees.
   JUSTICE STOUDER

delivered the opinion of the court:

Plaintiffs, David Harkcom, Ernest Wehmeier and Helen Wehmeier, filed an action against the defendants, Aaron Borchers and the East Texas Motor Freight Lines, Inc., in the circuit court of Rock Island County for damages sustained in a motor vehicle accident. The trial court dismissed all counts requesting recovery for negligent or intentional infliction of emotional distress and for malicious damage to property.

On November 29, 1979, in Davenport, Iowa, an accident occurred between a semitrailer truck, owned by the East Texas Motor Freight Lines, Inc., and operated by its employee Aaron Borchers, and an automobile, owned by Ernest and Helen Wehmeier and driven by David Harkcom. At the time of the accident, traffic was congested and proceeding at a very slow rate.

Harkcom and the Wehmeiers subsequently filed suit against Borchers and his employer. In count one of their third amended complaint, the Wehmeiers allege that Borchers and his employer, under a respondeat superior theory, negligently caused their semitrailer truck to collide with the Wehmeiers’ automobile while the automobile was changing lanes, from right to left, on a two-way, four-lane, undivided highway, causing damage to the left rear door panel of the Wehmeier vehicle.

In count two, Harkcom realleges the facts stated in count one and requests recovery from both defendants for negligent infliction of physical suffering and mental distress, stating this his “guts churned and his head ached, and as a result of such physical suffering he was rendered nervous, upset, worried, aggravated, distracted, frustrated and humiliated * * V

In count three, the Wehmeiers reallege the facts set forth in count one and seek punitive damages from both defendants for maliciously causing property damage to their automobile.

In count four, Harkcom essentially restates the facts alleged in count one and requests punitive damages from both defendants for malice of forethought in causing the accident which resulted in his physical suffering and mental distress.

On May 11, 1981, the trial court granted the defendants’ motion to dismiss counts two, three and four. The court indicated that count two was insufficient in law because recovery for emotional or mental distress is not allowable unless directly connected with some contemporaneous physical injury. The court found counts three and four to be inadequate because of their conclusory nature, no facts being alleged to support the claims of wanton and wilful conduct, and because a claim of vicarious liability for wilful and wanton conduct cannot be supported without facts alleging the employer either authorized the conduct, ratified it or recklessly hired the errant employee who was unfit for his job.

The trial court further found that the plaintiffs had elected to stand on their third amended complaint, choosing not to replead; therefore, counts two, three and four were dismissed with prejudice and the court’s order was declared a final and appealable order.

The issues which have been presented for our review are as follows: (1) whether the substantive law to be applied is that of Iowa or Illinois; (2) whether count two was properly dismissed for the reason that a cause of action for negligent infliction of emotional distress does not exist unless such distress is directly connected with a contemporaneous physical injury to the plaintiff; and (3) whether counts three and four were properly dismissed for the reason that they were conclusory in nature, failing to allege facts constituting wilful and wanton conduct.

Addressing the conflict of laws issue first, the Illinois Supreme Court has held that the law of the State where the tort occurred should determine the rights and liabilities of the parties unless Illinois has a more significant relationship with the occurrence and with the parties, in which case, the law of Illinois should apply. Ingersoll v. Klein (1970), 46 Ill. 2d 42, 262 N.E.2d 593.

In Ingersoll the court decided Illinois, not Iowa, had the most significant relationship with that case. The decedent, Ingersoll, the plaintiff, administrator of the Ingersoll estate, and the defendants were all residents of the State of Illinois. The only connection Iowa had with the case was that it was the situs of the decedent’s death.

In the case at hand, the plaintiffs and defendant Borchers are all residents of Illinois. The only relationship Iowa has with the case is that it was the place where the injury occurred. Ingersoll is therefore directly applicable. Illinois has the most significant relationship with this case and its law should govern the outcome.

Having decided Illinois law should determine the rights and liabilities of the parties, it is apparent that no cause of action exists for the recovery of damages due to the negligent infliction of mental distress without some contemporaneous physical injury to the plaintiff. Braun v. Craven (1898), 175 Ill. 401, 51 N.E. 657; see also Cutright v. City National Bank (1980), 88 Ill. App. 3d 742, 410 N.E.2d 1142.

In count two, Harkcom complains of mental suffering and physical manifestations of emotional distress. He does not state at any time that he has suffered from an actual physical injury as a result of the accident. Consequently, his claim which is premised upon mental suffering alone is not actionable under Illinois law.

As for the claims in counts three and four seeking recovery for malicious damage to property and intentional infliction of emotional distress, both are insufficient in law to state causes of action. A pleading must contain substantial averments of fact sufficient to support a cause of action. The mere addition of the words wilfully or wantonly to factual allegations utilized in a negligence claim is insufficient to support a cause of action for an intentional tort. Pendowski v. Patent Scaffolding Co. (1980), 89 Ill. App. 3d 484, 411 N.E.2d 910.

Additionally, in order to state a cause of action for intentional infliction of emotional distress, facts must be alleged which demonstrate the causation of severe emotional distress as a result of extreme and outrageous conduct, not just insults, threats, annoyances or indignities. Public Finance Corp. v. Davis (1976), 66 Ill. 2d 85, 360 N.E.2d 765. See also Robertson v. Travelers Insurance Co. (1981), 100 Ill. App. 3d 845, 427 N.E.2d 302.

The plaintiffs have failed in counts three and four to aver facts sufficient to support their claims for malicious damage to property and intentional infliction of emotional distress. The factual allegations of count one are essentially restated in both counts three and four, and no additional information is given of the defendants’ intentional or malicious behavior. The plaintiffs simply state conclusions of malicious intent. Because we believe counts three and four to be insufficient on this basis, there is no need to address the trial court’s additional ground of insufficiency relating to the vicarious liability of the East Texas Motor Freight Lines, Inc.

For the foregoing reasons the judgment of the trial court is affirmed and the case is remanded for further proceedings consistent with the opinions expressed herein.

Affirmed and remanded.

BARRY, P. J., and ALLOY, J., concur.


author: JUSTICE HEIPLE

text:
    BRUCE W. OSTEN et al., Plaintiffs and Counterdefendants-Appellants, v. JITENDRA J. SHAH et al., Defendants and Counterplaintiffs-Appellees.
    Third District
    Nos. 81-491, 81-347 cons.
    Opinion filed March 8, 1982.
    Joseph E. Winne, of Nicol, Newell, Prusak & Winne, of Peoria, for appellants.

      Brent H. Gwillim, of Heyl, Royster, Voelker & Allen, of Peoria, for appellees.
   JUSTICE HEIPLE

delivered the opinion of the. court:

Bruce and Linda Osten, plaintiffs, filed a complaint for breach of contract against Jitendra and Daksha Shah, defendants. Allegedly, the Shahs failed to abide by the terms of a real estate contract concerning the sale of plaintiffs’ home. Defendants filed a counterclaim seeking the return of their earnest money. The Shahs obtained summary judgments on the complaint and counterclaim. Mr. and Mrs. Osten appeal.

Was awarding summary judgment on both claims proper? This lone inquiry is the gist of plaintiffs’ appeal.

In 1978 the Ostens owned a home located in Peoria, Illinois. Because Mr. Osten was changing employment to another city, the family home was to be sold. Sometime after July 4, 1978, plaintiffs listed their home with Commercial National Realty, a Peoria real estate agency. The asking price was $118,500. An agent for Northaire Realty Company showed the house to the Shahs on April 29,1979. The same day, the Shahs as buyers, made a written offer of $115,000 on a form real estate contract. The financing clause of that contract states:

° ° This offer is subject to the buyer being able to secure a first mortgage loan with any reputable lending institution in the amount of $92,000. Buyer agrees to make application for said loan immediately upon acceptance of said offer. * *

Additionally, such financing was to be secured within 60 days. The Shahs tendered $2,000 earnest money with the written offer to purchase. The same day the Ostens accepted the Shahs’ offer.

On May 4, 1979, defendants sought a mortgage loan from the University National Bank in Peoria for $92,000. The bank would only lend $81,840. The bank said the Osten’s home was overvalued, and appraised it at $101,850. A month later Dr. Shah applied for a second mortgage loan of $20,000 with Commercial National Bank of Peoria. This lender denied the application. No other financing was sought through other commercial or private sources. The deal fell through. The Ostens kept the Shahs’ earnest money. Later the house was sold to other buyers for $110,000.

Prior to trial, defendants filed a motion for summary judgment on plaintiffs’ complaint. The trial judge did not rule on the motion since leave was granted to file an amended complaint. Then, trial convened for one day. Defendants refiled their motion for summary judgment. After amending their answer and counterclaim, defendants moved for summary judgment on the latter as well. The trial granted both of defendants’ motions. We reverse.

The parties entered into a valid contract. The Shahs’ performance of the contract was conditioned upon obtaining a first mortgage loan for $92,000. The Shahs were not obligated to perform under the terms of the contract unless the mortgage was obtained. But the inquiry does not end there. By executing the contract the Shahs impliedly promised to use reasonable efforts to obtain the specified financing. They had to make positive efforts to cause the condition, upon which their liability might depend, happen.

Likewise, in every contract both parties impliedly promise to act in good faith. (Martindell v. Lake Shore National Bank (1958), 15 Ill. 2d 272, 286.) A party cannot claim the failure of a condition defeats his own liability when he is the party who prevents actualization of the condition upon which contractual liability depends. Such is not fair dealing.

Whether the Shahs employed reasonable efforts to obtain the described mortgage was a material, disputed fact. Its resolution might depend on many variables, including interest rates, as well as loan demand. Intertwined with such consideration was whether the Shahs’ single attempt to obtain a first mortgage was done in good faith. Since both issues are based on facts which are genuinely disputed awarding summary judgment was improper. (Ill. Rev. Stat. 1979, ch. 110, par. 57(3).) We also note that credibility of witnesses and the weight to be accorded their testimony are matters for the trier of fact to consider. Finley v. New York Central R.R. Co. (1960), 19 Ill. 2d 428, 436.

We express no opinion as to whethér the Shahs, or for that matter, the Ostens, acted reasonably and in good faith pursuant to their contractual obligations. Such decisions are for the trier of fact.

For the reasons stated, we reverse both trial court orders granting summary judgments to the defendants. This cause is remanded to the Circuit Court of Peoria County for further proceedings consistent with the views expressed herein.

Reversed and remanded.

BARRY, P. J., and SCOTT, J., concur.


author: PRESIDING JUSTICE BARRY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. DAVID VADEBONCOEUR, Defendant-Appellee.
    Third District
    No. 81-432
    Opinion filed March 16, 1982.
    L. Patrick Power, State’s Attorney, of Kankakee (John X. Breslin, of State’s Attorneys Appellate Service Commission, of counsel), for the People.
    Robert Agostinelli and Pamela Peters, both of State Appellate Defender’s Office, of Ottawa, for appellee.
   PRESIDING JUSTICE BARRY

delivered the opinion of the court:

The State appeals from an order of the circuit court of Kankakee County dismissing an indictment which charged David Vadeboncoeur, the defendant herein, with felony theft. The defendant was convicted of misdemeanor theft on February 5, 1980. The defendant was not represented by a lawyer in that proceeding. He pleaded guilty and was sentenced accordingly. In December 1980, the State charged the defendant with felony retail theft of cigarettes, the value of which did not exceed $150 (Ill. Rev. Stat. 1979, ch. 38, par. 16A — 3(a)), based on the prior misdemeanor theft (Ill. Rev. Stat. 1979, ch. 38, par. 16A — 10(2)).

The defendant moved to dismiss the latter indictment on grounds that he had not formally waived his sixth amendment right to counsel in connection with the February 1980 conviction.

At the hearing on the defendant’s motion, the State presented testimony of Edward A. Mclntire, Associate Circuit Judge, who had accepted the defendant’s February 1980 plea. Judge Mclntire indicated that he had admonished the defendant, inter alia, of his right to have the public defender appointed to represent him. He further stated, however, that he had no independent recollection of the proceedings against the defendant and that his testimony was based upon his review of the minutes of the earlier conviction. Judge Mclntire was unable to recall having explained to the defendant that he could have a lawyer provided free of charge to him if he could not afford one. Thomas Lawson, assistant State’s Attorney, also testified on behalf of the State. Lawson had prosecuted the February 1980 case. He was unable to state whether Judge Mclntire had admonished the defendant that a lawyer could be provided free of charge or merely that the public defender would be appointed for him.

The defendant, testifying on his own behalf, stated that Judge Mclntire had told him that a lawyer would be appointed. He was not told that the lawyer would be provided free of charge. Nor did the defendant understand that he could have free legal representation. He further stated that he had not told the judge that he wished to waive his right to an attorney or that he did not want an attorney to be present. At the close of testimony, the trial court took the motion under advisement, and returned its decision six days later, allowing the defendant’s motion to dismiss “pursuant to Baldasar v. Illinois [(1980), 446 U.S. 222, 64 L. Ed. 2d 169, 100 S. Ct. 1585].” The State has appealed.

On appeal, the State argues that the trial court erred inasmuch as the evidence adduced at the hearing was sufficient to demonstrate that Judge Mclntire properly admonished the defendant of his right to counsel. The defendant argues that the trial court should be affirmed because the State failed to demonstrate that the defendant validly and understandingly waived his right to counsel at the February 1980 misdemeanor conviction. As such the defendant argues, the rule of Baldasar v. Illinois precludes the enhancement of the defendant’s present misdemeanor charge to a felony. We affirm.

In Scott v. Illinois (1979), 440 U.S. 367, 59 L. Ed. 2d 383, 99 S. Ct. 1158, the Supreme Court declared that the sixth and fourteenth amendments require that no indigent criminal defendant be sentenced for a term of imprisonment unless the State has afforded him the right to assistance of appointed counsel. In Baldasar, the court ruled that a prior uncounseled misdemeanor conviction could not serve as a basis under the enhanced penalty statute (Ill. Rev. Stat. 1979, ch. 38, par. 16 — 1(e)(1)) to convert a later misdemeanor theft into a felony.

Since the defendant herein was given a 15-day jail sentence for his February 1980 conviction, it is clear that the defendant’s admonishments prior to pleading guilty required inclusion of the right to appointed counsel. Furthermore, the right to counsel is so fundamental to a fair trial that waiver of the right will not be found “unless it appears from the record that at each critical stage of the proceeding the trial judge specifically offered, and the accused knowingly and understandingly rejected, the representation of appointed counsel.” (People v. Hessenauer (1970), 45 Ill. 2d 63, 68, 256 N.E.2d 791, 794.) “Every reasonable presumption will be entertained against a finding of waiver where there are insufficient facts to substantiate a knowing and intelligent waiver.” People v. Brown (1980), 80 Ill. App. 3d 616, 621-22, 399 N.E.2d 1374, 1378.

In the present case, the State asks that this court second-guess the trial court based upon the testimony received at the hearing on the defendant’s motion to dismiss. We have read the transcripts thoroughly. It is apparent that neither the prosecutor nor Judge Mclntire recalled precisely what David Vadeboncoeur was told at the February 1980 proceedings concerning his right to counsel. The defendant said he did not understand that he could be represented by an attorney at no cost to himself. The trial court, in its superior position for weighing the credibility of witnesses, did not believe that a sufficient factual showing of waiver had been made to overcome the presumption against waiver. Having found no effective waiver of the right to appointed counsel at the February 1980 proceedings, the trial court ruled that the present indictment, charging an otherwise-petty offense as a felony solely on the basis of the earlier conviction, was fatally defective.

Based upon the record on review we cannot say that the trial court’s determination is contrary to the manifest weight of the evidence. Accordingly, the trial court’s order dismissing the indictment is affirmed.

Affirmed.

ALLOY and SCOTT, JJ., concur.


author: JUSTICE ALLOY

text:
      In re MARRIAGE OF DAVID GODWIN, Petitioner-Appellee, and PATRICIA GODWIN, a/k/a Patricia Hostens, Respondent-Appellant.
    Third District
    No. 81-498
    Opinion filed March 9, 1982.

      Joseph D. Sheahan, of McGehee, Boling & Whitmire, Ltd., of Silvis, for appellant.
    Dennis A. DePorter, of Braud, Warner, Neppl & Westensee, of Rock Island, for appellee.
   JUSTICE ALLOY

delivered the opinion of the court:

This is an appeal from an order of the trial court placing custody of the parties’ nine-year-old son with the petitioner, David Godwin.

David and Patricia Godwin were divorced in May of 1977. In December of 1977, the trial court awarded custody of the couple’s minor son, Bruce, to Mrs. Godwin (now Mrs. Hostens). The court also ordered extensive visitation rights to Mr. Godwin. In the time between the divorce and the original custody hearing, both parties remarried.

In April 1981, Mr. Godwin filed a petition to modify the custody order. Ten days later, he filed an amended petition to modify the custody order. The petitioner claimed circumstances and facts materially changed since entry of the original order. He asserted that: The respondent moved to Florida with the child without the court’s permission; the child lives with stepsiblings that have been convicted of crimes, producing a harmful home environment; the child witnessed acts of violence between the respondent and her second husband and the stepsiblings; the child failed one grade in school; the child committed retail theft while under the supervision of Mrs. Hostens; the child is now combative, abusive and depressed due to his present home environment; and Mrs. Hostens is neglecting the child by failing to properly clothe and feed him. Mr. Godwin asked the court to change custody in his original petition. In his amended petition, he reiterated his allegations, and also asked the court to prohibit Mrs. Hostens from leaving Illinois with the child.

The sheriff of Rock Island County personally served the original petition to modify on Mrs. Godwin at the Rock Island County Courthouse on April 16,1981. A hearing on the petition was set for May 28,1981. The record is unclear as to service of the amended petition. Mrs. Hostens was with her attorney, Lane Evans, at the time she was servéd. She immediately retained him in this matter, and he later entered an appearance on her behalf.

On the day of the hearing, Evans told the trial court the respondent asked him to obtain a continuance. The record indicates she wanted time to arrange to return from Florida for the hearing. Evans also told the court, however, that he agreed with opposing counsel to proceed with the hearing. Evans stated he tried to reach Mrs. Hostens by telephone, but her number was disconnected. Evans also sent a letter to her by express mail two days before the hearing. Apparently, Mrs. Hostens had not contacted him by the date of the hearing. The court treated Evans’ statement as a motion for a continuance and denied it.

The trial court suggested to Mr. Godwin’s counsel that he call the petitioner and simply have him swear that the allegations in the petition are true. Counsel took this suggestion, directed his client’s attention to the petition and had him state the allegations were true. Mr. Godwin added he and a private detective investigated this case, and that this investigation supported his conclusions. The court gave respondent’s counsel an opportunity to cross-examine, but he did not do so. The petitioner had additional witnesses at the courthouse, but chose to rest his case. The respondent called no witnesses and made no final argument.

The trial court ordered a change in custody from Mrs. Hostens to Mr. Godwin. Subsequently, the trial court rejected motions to vacate the order and to stay enforcement of the order. The respondent, Mrs. Hostens, now appeals.

The respondent challenges the jurisdiction of the court to make a change in custody. She claims none of the jurisdictional bases outlined in the Uniform Child Custody Jurisdiction Act (Ill. Rev. Stat. 1979, ch. 40, par. 2104(a)) are satisfied in this case. In support of the contention, she argues there is nothing in the record indicating Illinois is the child’s home State or had been the home State within six months prior to the motion for modification. In addition, she argues there is no significant connection with Illinois, no abandonment and no emergency situation apparent from the record.

It is true that this record is deficient in many respects. The record does indicate, however, that the respondent removed herself and the child from this State without the court’s permission. One of the stated purposes of the Act is to deter such unilateral action by a parent. (Ill. Rev. Stat. 1979, ch. 40, par. 2102(a)(5).) If a court lost its jurisdiction because of such actions, the respondent would subvert the clear intention of the General Assembly as well as profit from her own misbehavior. This cannot be condoned. On the record before us, therefore, the trial court properly exercised jurisdiction.

The respondent next challenges the trial court’s refusal to grant a continuance in this case. A motion for continuance is addressed to the discretion of the court and its decision is reversible only for abuse of that discretion. (Ruskin v. Rodgers (1979), 79 Ill. App. 3d 941, 954, 399 N.E.2d 623.) In the case at bar, the respondent did not ask for a continuance until the day of the hearing. Respondent’s counsel made no claim that he was unprepared. In fact, he indicated he was ready to proceed with the hearing. The petitioner assembled his witnesses in anticipation of a hearing. Respondent claims she needed time to arrange to be at the hearing. She had six weeks, however, to make such arrangements. Additionally, the court noted that her move to Florida without the court’s permission is one of the allegations against her. A continuance on the ground that respondent was in another State would, again, permit her to benefit from her own misbehavior. The trial court did not abuse its discretion in refusing to grant a continuance.

The central issues in this case are whether the trial court’s order is fatally defective for failure to make explicit findings of fact under the modification-of-custody provisions of the Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 610), and whether the trial court based its order on insufficient grounds to change custody of the child. The respondent argues explicit findings are necessary under In re Custody of Harne (1979), 77 Ill. 2d 414, 396 N.E.2d 499. The petitioner argues Harne is inapplicable, because the sole testimony was undisputed. Only one conclusion, he argues, is possible. There is no authority for this exception to the Harne rule. In support of her claim of insufficient grounds for modification, the respondent cites In re Custody of Potts (1980), 83 Ill. App. 3d 518, 404 N.E.2d 446. In Potts, the appellate court ruled that removing a child from the State — even without the court’s permission — is not sufficient grounds to change custody. The petitioner argues the case at bar is easily distinguishable: The allegations in his petition indicate far more serious problems than mere removal from the State. The overriding considerations in custody cases are to determine the best interests of the children. The allegations of neglect, a violent environment, thievery, failing in school and emotional disorders due to the home environment, if true, could constitute a sufficient change in circumstances to support a change in custody.

In the case at bar, however, there is no affirmative evidence to support the petitioner’s charges. The burden of proof is upon the petitioner to demonstrate the necessity of a modification of custody. (In re Custody of Harne (1979), 77 Ill. 2d 414, 420-21; In re Marriage of Manley (1980), 83 Ill. App. 3d 633, 637, 404 N.E.2d 910.) The allegations in the petitioner’s motion for modification are mere conclusions, not affirmative evidence. The petitioner’s testimony is lacking in a sufficient foundation, in that it is impossible to determine whether petitioner is testifying from personal observation or hearsay. Under normal circumstances, the failure of opposing counsel to object or his failure to cross-examine would operate as a waiver of any objection to the petitioner’s testimony. Goldberg v. Capitol Freight Lines (1943), 382 Ill. 283, 291, 47 N.E.2d 67; Allison v. Davies (1978), 64 Ill. App. 3d 900, 905, 381 N.E.2d 1034.

In a case as serious and delicate as a child-custody proceeding, the waiver rule should not be strictly enforced. (See In re Marriage of Swift (1979), 76 Ill. App. 3d 154, 157, 394 N.E.2d 923 (failure to allege lack of notice of hearing will not operate as a waiver of that issue on appeal, in a change of custody proceeding).) This should be especially true in a case where the record is inadequate for purposes of review and the testimony is abbreviated and conclusory in nature.

We believe, therefore, that this cause should be remanded to the trial court to reconsider the evidence in this case, hear additional testimony from witnesses and make explicit findings supporting a change of custody, if a change proves necessary, in conformity with Harne. The petitioner, Mr. Godwin, shall retain temporary custody of the child, until the trial court makes a final determination of permanent custody.

Affirmed in part and remanded for proceedings consistent with this opinion.

STOUDER and SCOTT, JJ., concur.


author: JUSTICE SCOTT

text:
      In re ESTATE OF CARLOS F. CHAPMAN, Deceased.—(IRENE CHAPMAN SIGHTS, Petitioner-Appellee, v. CHARLES VERNON CHAPMAN, Adm'r of the Estate of Carlos F. Chapman, Respondent-Appellant.)—In re ESTATE OF HARRY CHAPMAN, Deceased.—(IRENE CHAPMAN SIGHTS, Petitioner-Appellee, v. CHARLES VERNON CHAPMAN, Adm’r of the Estate of Harry Chapman, Respondent-Appellant.)
    Third District
    Nos. 81-542, 81-572 cons.
    Opinion filed March 9, 1982.

      Harris & Harris, of Macomb, for appellant.
    Burrel Barash, of Barash, Stoerzbach & Henson, of Galesburg, for appellee.
   JUSTICE SCOTT

delivered the opinion of the court:

The respondent, Charles Vernon Chapman, was removed as administrator of the estates of Carlos F. Chapman and Harry Chapman by order of the circuit court of McDonough County after hearing on petition filed by Irene Chapman Sights in which it was alleged that the respondent should be removed on the grounds of mismanagement, unsuitability, and for other good cause.

Harry Chapman prior to his death had executed a power of attorney granting the respondent certain authority as to an account in the Citizens National Bank of Macomb in the approximate amount of $19,000. The account provided that on the death of Harry Chapman it was payable to his brother, Carlos Chapman. Carlos died November 18,1979, and Harry Chapman survived him but a few months, dying on February 19, 1980.

While serving as administrator, to-wit, from June 22, 1980, through July 21, 1980, the respondent wrote five checks on the account totalling $3,120 and all of the proceeds from the checks he applied to his personal use. The respondent, after his actions in using the funds from the $19,000 account were questioned in October, November and December of 1980, did borrow money and restore the funds that he had used.

The petitioner Sights caused pleadings to be filed requiring the respondent to file an inventory in each estate. These inventories were filed in October 1980; however, the inventory in the Harry Chapman estate omitted any listing of the $19,000 account. The account was later listed in a supplemental inventory.

The respondent was removed as administrator of both estates by order of court on July 13, 1981.

We are asked to determine whether an administrator can be removed from office who claims that he misunderstood the effect of a power of attorney and thereby withdrew estate funds for personal use but later restored them and who further, after being ordered to do so, filed inventories as required by law.

Standing alone, the difficulties encountered by respondent regarding the filing of the inventories would not be cause for removal. Letters of office may be revoked only for the reasons stated in the statute, (In re Estate of Breault (1963), 29 Ill. 2d 165, 193 N.E.2d 824.) Although the respondent was tardy in filing the inventories, he did comply when ordered by court to do so. Our Probate Act provides that the representative of an estate may be removed for failure to file an inventory or accounting after being ordered to do so. In light of the respondent’s compliance with the court’s order, there is no ground to remove him concerning his actions as to the filing of inventories.

Turning to respondent’s personal use of estate funds, we have noted that he restored the same, and he advanced the claim that he misapprehended the effect of a power of attorney. It should further be noted that the trial court in correspondence to counsel for the parties made the following observation and finding:

“* * * I do not question the legal representative’s good intention in the matter, but he has obviously mismanaged both estates and shown himself to be unsuitable for discharge of his duties as legal representative.”

The trial court’s observation that it did not question the respondent’s good intentions effectively extinguishes the contention that respondent’s acts were motivated by dishonesty. Though a different conclusion may well have been reached, we are not disposed to substitute our judgment for that of the trier of fact. Accepting the trial court’s finding and applying the rule of law that an executor should not be removed for errors or omissions which are satisfactorily explained, or errors of judgment not amounting to malfeasance, we will not conclude that the respondent should have been removed on the grounds of dishonesty. In re Estate of Breault (1963), 29 Ill. 2d 165, 193 N.E.2d 824.

The trial court did, however, order the removal of the respondent as the representative of both estates on the grounds that he mismanaged the same and had demonstrated that he was unsuitable for the discharge of his duties. Both of these grounds are statutory causes for removal. (See Ill. Rev. Stat. 1979, ch. llOlz, par. 23 — 2(a)(4), (9).) We agree with the trial court, for it is evident that the respondent, even though confused as to the effect of the power of attorney’s authority, made no effort to eliminate that confusion by seeking advice of counsel but proceeded to appropriate estate funds to his personal use. We further deem it pertinent that the record discloses that the funds so appropriated were not promptly restored to the estate but that restoration was made only after he was pressured to do so over a period of months. It required an order of court to compel the filing of inventories and the inventory in the Harry Chapman estate initially failed to list the $19,000 account which gave rise to his difficulties as a fiduciary. Without setting forth a recitation of the same we make the observation that the transcript of the respondent’s testimony at the removal hearing left much to be desired as to candor.

While the difficulties of the respondent flowed primarily from his acts or omission of acts in the Harry Chapman estate, the order provides for his removal not only from this estate but in the estate of Carlos Chapman as well. No argument is presented as to the propriety of the removal from both estates, nor would the same if presented have merit. The estates are interrelated, and mismanagement and unsuitability in one is indication of unsuitability and possible serious mismanagement in the other.

For the reasons set forth the judgment of the circuit court of McDonough County is affirmed.

Affirmed.

BARRY, P. J„ and STOUDER, J., concur.


text:
    HARRY WOLSTENHOLME, III, Plaintiff-Appellant, v. COMMONWEALTH EDISON COMPANY et al., Defendants-Appellees.
    Third District
    No. 81-441
    Opinion filed March 16, 1982.
    Richard D. Price, Jr., of Cassidy, Cassidy, Mueller & Price, of Peoria, for appellant.
    Richard E. Quinn and Carl R. Draper, both of McConnell, Kennedy, Quinn & Johnston, of Peoria, for appellee Babcock & Wilcox Company.
    Eugene L. White and David J. Dubicki, both of Kavanagh, Scully, Sudow, White & Frederick, P. C., of Peoria, for appellee Commonwealth Edison Company.
   JUSTICE STOUDER

delivered the opinion of the court:

Plaintiff, Harry Wolstenholme III, in a subrogation action to recover sums of money payable to him and 35 other plaintiffs by their employer under the Illinois Workers’ Compensation Act, attempted to amend the complaint to include a cause of action against defendants, Commonwealth Edison Company and the Babcock & Wilcox Company, for his own personal injuries. The circuit court of Tazewell County denied leave to amend on the basis of the statute of limitations bar in section 14 of the Limitations Act (Ill. Rev. Stat. 1979, ch. 83, par. 15).

On December 27,1979, 36 employees of Dedelow Construction, Inc., filed a subrogation action for the use of their employer pursuant to Section 5 of the Workers’ Compensation Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.5(b)), in order to recover sums payable to them by Dedelow under the Workers’ Compensation Act for injuries incurred on December 28, 1977. The individual plaintiffs themselves did not pray for the recovery of damages above and beyond the amounts which were payable to them under the Workers’ Compensation Act.

On June 19, 1981, plaintiff, Wolstenholme, filed a “Motion to Sever and for Leave to File Amended Complaint Instanter” in order to seek recovery from the defendants for his own personal injuries, separate and apart from the subrogation action. On July 9, 1981, the trial court denied Wolstenholme’s motion, finding that the statute of limitations (Ill. Rev. Stat. 1979, ch. 83, par. 15), barred his claim for personal injuries, because under the provisions of section 46(2) of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 46(2)) his cause of action did not relate back to the time the subrogation action was originally filed. The trial court then found that there was no just reason for delaying enforcement or appeal pursuant to Supreme Court Rule 304 (Ill. Rev. Stat. 1979, ch. 110A, par. 304(a)).

Subsequently, the subrogation action as to all the plaintiffs was settled and dismissed with prejudice; however, the trial court’s order included the proviso that the personal rights of Wolstenholme would not be prejudiced thereby.

The issue of law presented for our review is whether Wolstenholme’s amended complaint to include his personal cause of action for injuries sustained relates back to the time of the originally filed subrogation action for purposes of the statute of limitations.

In Geneva Construction Co. v. Martin Transfer & Storage Co. (1954), 4 Ill. 2d 273, 122 N.E.2d 540, the supreme court was faced with this same relation-back issue. In that case, an injured employee attempted to amend the complaint in his employer’s subrogation action under the Illinois Workman’s Compensation Act more than four years after the date of his accident, in order to be made a party plaintiff and claim common law damages against the defendant tortfeasor. The court, in holding that the employee’s cause of action was not barred by the statute of limitations, found that the causes of action asserted in the original complaint and in the amended complaint, grew out of the same transaction or occurrence and, therefore, under section 46 of the Civil Practice Act (Ill. Rev. Stat. 1953, .ch. 110, par. 170, now Ill. Rev. Stat. 1979, ch. 110, par. 46), the amended complaint related back to the time the original complaint had been filed.

In the case before us, Wolstenholme was a party to the originally filed subrogation action, and his proffered amended cause of action grew out of the same occurrence as his employer’s subrogation action, namely the incident on December 28, 1977, which resulted in injuries to Wolstenholme and the remaining 35 plaintiffs. Here, as in Geneva Construction Co., it cannot be said that the defendants were prejudiced by the amendment, which merely requested additional damages arising from an occurrence fully disclosed in the original complaint. Therefore, the basic objectives of the statute of limitations (Ill. Rev. Stat. 1979, ch. 83, par. 15), and the relation-back provisions of section 46(2) of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 46(2), were met in that the defendants were afforded a fair opportunity to investigate the claim against them while the information relating thereto was still available.

Applying the test in section 46(2) of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 46(2)), because Wolstenholme’s amended pleading grew out of the same transaction or occurrence as the original pleading, the amended pleading is not barred by the statute of limitations period in section 14 of the Limitations Act (Ill. Rev. Stat. 1979, ch. 83, par. 15). Both parties concede the Geneva Construction Co. case was not called to the attention of the trial court. Consequently, the court was not afforded the opportunity of applying or following the rules of that case.

For the above stated reasons, the judgment of the trial court is reversed and the case is remanded for proceedings consistent with the opinions expressed herein.

Reversed and remanded.

BARRY, P. J., and SCOTT, J., concur.


author: JUSTICE HOPE

text:
    ROY BURLEW, JR., et al., Plaintiffs-Appellants, v. THE CITY OF LAKE FOREST et al., Defendants-Appellees.
    Second District
    No. 81-345
    Opinion filed March 12, 1982.

      Robert O. Kratovil and James S. Fouts, both of Lake Forest, for appellants.
    Semmelman & Lombardi and Thomas H. Compere, both of Lake Forest, Murray R. Conzelman, of Waukegan, and Barry B. Gross, Robert T. O’Donnell, and Mary F. Stafford, all of Epton, Mullin, Segal and Druth, of Chicago, for appellees.
   JUSTICE HOPE

delivered the opinion of the court:

Plaintiffs Roy and Marian Burlew appeal from the dismissal of their action to quiet title. They allege that they had a written agreement for the revision of a common boundary. The purchasers of the lot adjacent to plaintiffs, Robert and Rita Taylor, defendants, filed a motion for summary judgment pursuant to Section 57 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 57), arguing that they were bona fide purchasers of the lot and purchased without notice of any change of the boundary line. After the parties filed affidavits and after arguments of counsel, the 19th Judicial Circuit Court granted the Taylors’ motion. The claims against the other defendants were also dismissed. The Burlews appeal.

The Burlews contend that the trial court erred in dismissing their petition in chancery because there were genuine triable issues of fact to be determined.

The Burlews purchased lot 21 of the Deerpath Woods Subdivision in the city of Lake Forest from the E. A. Horsch Investment Company in 1968. They moved into their home on that lot in that year. On July 14, 1970, the Burlews made an agreement to change the boundary lines of lots 20 and 21 with E. A. Horsch, who still owned lot 20 next door. This agreement was memorialized on the survey prepared for the Burlews. The survey indicates that the Burlews modified the lot line so as to gain 3,475 square feet near the street or front part of their property, lot 21, in exchange for 3,575 square feet of their property to be added to the rear of lot 20. A diagram of the survey, not to scale, is provided here for clarification:

The notations made on this survey were “July 14, 1970, agreed (ss) E. A. Horsch, approved (ss) Roy Burlew R.B.” The survey is apparently the only written agreement memoralizing the alleged exchange of property between Horsch and Burlew. The Burlews contend that this is a “revised plat” which was filed with the records office of the city of Lake Forest in September 1980 and was approved and entered into the official plat book of the city.

In 1970 the Burlews applied for a permit from the city to construct a three-car garage. The location of the garage is shown on the survey, which indicates that it is 9.9 feet from the corner of the now completed garage to the original lot line and more than 20 feet to the revised lot line. In 1971 the Burlews applied for a permit from the city to construct a wooden stockade fence. The Burlews point out that their entire property is enclosed by a stockade fence, a seven-foot-high masonry wall, and a five-foot-high chain link fence.

It is important to note that the Burlews did not record any documents changing the boundary lines of lots 20 or 21 with the Recorder of Deeds of Lake County. Nor did the Burlews pay taxes for any portion of lot 20 from the date of their purchase of lot 21.

In November 1980, the defendants Robert E. Taylor and Rita P. Taylor bought lot 20 and recorded their deed in the office of the Recorder of Deeds of Lake County. They purchased the property from Poterek Builders, Inc., who had purchased it from the Horsch Investment Company. The Burlews filed this action in January of 1981 to quiet title to the property in issue. The Taylors filed a verified answer, affirmative defense, and counterclaim.

The city of Lake Forest filed an answer requesting that it be dismissed as a party because the complaint filed by the Burlews did not request any relief from it. The trial court, in its order entered March 24, 1981, dismissed the city for that reason.

The trial court also found that the Burlews had no claim of title by adverse possession nor by payment of taxes pursuant to any statute. The court stated that the Burlews’ claim was based on a revision of the plat of subdivision with the city of Lake Forest. The court found that the Taylors were bona fide purchasers of lot 20 as that lot is shown on the plat of subdivision recorded in the book of plats with the county.

The court found that the fence constructed by the Burlews was so constructed without conforming or changing the official Plat of Subdivision filed with the recorder of deeds of Lake County and without a deed to said property as required by law. The court stated that such a fence was not notice of possession which would give the Burlews title and that the cases cited by the Burlews were concerned with the open and notorious claim by a party of the entire fee and as such meant that subsequent purchasers took subject to the rights of a lessee. The court found that the Burlews’ claim was inadequate because their situation differed so greatly from that of the parties in the cases the Burlews presented.

The first argument presented by the Burlews contends that the verified pleadings filed by the Taylors contain an admission that the Burlews have acquired a color of title to lot 20. In paragraph 3 of both the affirmative defense and counterclaim filed by the Taylors, they stated:

“3. That by deed dated November 13,1980, and recorded in the office of the Recorder of Deeds of Lake County, Illinois, on November 18, 1980, as Document No. 2089271, Taylor acquired the fee simple title to the real estate (recorded deed, attached hereto as Exhibit A). Plaintiff thereby obtained in good faith, color of title to vacant and unoccupied land.” (Emphasis added.)

The last sentence of these paragraphs was probably supposed to start with the words counterplaintiff rather than plaintiff. It appears to be a typographical error. The Burlews allege that this language is an admission by the Taylors in a verified pleading of the Burlews’ title to the land in issue. However, if it were an admission it would mean that the Taylors would be admitting that the whole of lot 20 belonged to the Burlews. This argument is simply implausible and does not create a genuine issue of fact.

The Burlews’ next contention is that the Taylors knew or should have known that they possessed lot 21 as revised because they have to pass lot 21 in order to get to lot 20. They urge that because of the nature and location of the seven-foot wooden stockade fence the Taylors had notice of the changed lot line and therefore had a duty to inquire of the occupier of said land what interest or claim they held in the land. We disagree.

In support of this argument the Burlews cite a number of cases which are largely inapposite. In Williams v. Brown (1852), 14 Ill. 200, a resulting trust arose from the advancement of purchase money between parties. The court stated that the purchaser is bound to inquire of the person in possession by what tenure he holds the property. One distinction between Williams and the case before this court lies in the fact that Williams was in the actual, open, notorious and exclusive possession of the disputed premises. The Burlews’ possession was not of the fee, but rather a small slice of the fee. In this sense, Williams is inapposite.

In another case relied on by the Burlews, Chicago Title & Trust Co. v. Drobnick (1960), 20 Ill. 2d 374, 169 N.E.2d 792, the plaintiff had paid taxes on the property in dispute for over 25 years and had enclosed the otherwise vacant land completely by a fence. This fence was seen as an indication of possession, but the case was decided by the application of the statute of limitations. The fence alone would have been insufficient claim to the property. As such Drobnick does not support the Burlews’ contention.

The principal case relied upon by the Burlews is Polito v. Chicago Title & Trust Co. (1956), 12 Ill. App. 2d 57, 138 N.E.2d 710. They contend that Polito stands for the proposition that when a party contracts for the purchase of premises it has a duty to inquire of the person in question by what tenure he holds and what interest he claims he had in the premises.

Polito is a rather murky case that concerned a garage that encroached onto an adjacent lot and was an action brought by the purchasers for damages for breach of a title policy. It was not a case that determined title. The case was largely concerned with construing the terms of the policy. With regard to the question of notice, the court stated:

“Open possession is sufficient to charge such purchaser with knowledge of all legal or equitable claims of the occupant, which could have been ascertained by such inquiry. Ambrosius v. Katz, 2 Ill. 2d 173, 182, and cases there cited. Feldman v. Cipolla, 7 Ill. App. 2d 448, 450.” (12 Ill. App. 2d 57, 63, 138 N.E.2d 710, 713.)

Although Polito contains this language and it does relate to “possession as notice,” it is apparent that the terms of the title insurance policy were the dispositive concerns of the court. Therefore Polito is inapposite. Both Ambrosius and Feldman, as well as the cases cited in Ambrosius (Bryant v. Lakeside Galleries, Inc. (1949), 402 Ill. 466, 84 N.E.2d 412, and Miller v. Bullington (1942), 381 Ill. 238, 44 N.E.2d 850), involved factual settings where possession of an entire freehold was seen as notice to prospective purchasers of all legal or equitable claims of the occupant. The Burlews are requesting that this court expand the legal “possession as notice” concept to include possession of an insubstantial portion of property gained by changing one side of a lot line. This is not a factual dispute. We are of the opinion that if we were to so expand this concept, tremendous confusion and increased numbers of boundary disputes would result. Therefore, we are in agreement with the trial court’s finding that the building of a fence on portions of property, without conforming or changing the official plat of subdivision filed with the recorder of deeds, or without a deed, was not notice of possession.

Even if we were to assume that the existence of the fence was sufficient notice so as to give the Taylors the duty to inquire, this duty would be to make a reasonable inquiry. The Taylors checked the description of the lot at the recorder of deeds of Lake County and found no change in the boundary lines. It would be unreasonable for this duty to be so expansive as to require a search of the records of local governmental bodies, such as those of the city of Lake Forest. As such, the Taylors fulfilled their duty of inquiring by what tenure the Burlews were in possession, and they could not be expected to have searched the records of all local governmental bodies.

As pointed out in the Taylors’ brief it is the public policy in Illinois to encourage reliance on the public record. (8930 South Harlem, Ltd. v. Moore (1979), 77 Ill. 2d 212, 396 N.E.2d 1.) The Taylors relied on that record when they purchased lot 20. Because of this conclusion, we do not reach other issues raised by the Burlews.

For these reasons, we see no triable issue of fact, and affirm the findings of the trial court.

Affirmed.

REINHARD and UNVERZAGT, JJ., concur.


author: PRESIDING JUSTICE SEIDENFELD

text:
    JON ALLEN, Plaintiff-Appellee, v. JOYCE DHUSE, Defendant-Appellant.
    Second District
    No. 81-445
    Opinion filed March 12, 1982.

      Puckett, Barnett, Larson, Mickey, Wilson and Ochsenschlager, of Aurora (Donald L. Puckett and John P. Duggan, of counsel), for appellant.
    John M. Lamont, of Thomas and Lamont, of Aurora, for appellee.
   PRESIDING JUSTICE SEIDENFELD

delivered the opinion of the court:

The plaintiff, Jon Allen, recovered a judgment based upon a jury verdict for injuries incurred when he was struck by a vehicle driven by the defendant, Joyce Dhuse. Defendant appeals, contending that the verdict is against the manifest weight of the evidence, that verdicts should have been directed, that a motion for a mistrial was improperly denied, and that the court erred in striking the jury foreman’s affidavit that attorney fees were added in the calculation of damages.

Plaintiff was struck by a car driven by the defendant on June 29, 1978, at about 12:20 a.m., at the intersection of Routes 31 and 34 in Kendall County. Route 31 runs generally north-south; Route 34 runs westerly, merging in a “T” intersection with Route 31. A bright white “edgeline” runs along the edge of the blacktop surface 2 feet out from a curb. The edgeline is 4 inches wide and made from plasticized (“thermoplastic”) materials which were designed to reflect any source of light. The edgeline separates the paved portion of the roadway from the concrete shoulder or “gutter flag.” The curb is 7 inches high and 7 inches wide. A series of driveways separated by hard, grassy stretches runs along the curb west of Route 31.

The plaintiff testified that his Honda 750 Motorcycle, proceeding south on Route 31, went “dead.” Ken Kozloski was driving a similar cycle behind him. Plaintiff pushed or coasted his bike to the roadside near the curb and set it on its kick stand. He said that the bike was just south of the light standard that went across the road on Route 31. Kozloski also parked his bike, facing south, in front of a driveway located about 10-15 feet south of plaintiffs bike. Plaintiff said that he parked his bike with the wheels up against the curb. Kozloski testified that plaintiff parked west of the white edgeline; he was not sure how close, but guessed, “closest to the curb as he could get.” He said that Allen was standing about 6 inches to the east of his own cycle while working on it. Allen himself recalled that he had his feet on the concrete apron as “close as he could get” to his cycle. He, however, admitted that he was not paying particular attention to the position of his feet, as he was concentrating on fixing his bike. It also appeared that Kozloski had earlier stated in a deposition that Allen was east of the white line.

During the 5 or 10 seconds before impact Kozloski was walking back to his bike and turned to say something to Allen when he saw the headlights of defendant’s car. Both Kozloski and Adolfo Amador, another cyclist, who came upon the scene at about 10 minutes before the collision, testified that their motorcycles’ rear parking lights were on, facing north, before the collision. According to Kozloski, the scene was illuminated by the stop lights at the intersection and by lights from cars coming west off the Oswego bridge.

There was also testimony that Allen saw a flash of lights and lost consciousness on impact. Both Kozloski and the defendant stated that Allen was lying face down straddling the edgeline with tire marks across his chest and left thigh. Kozloski said he saw defendant’s car’s headlights just before hearing the crash and picked himself up from the driveway “realizing we’d been hit.” His knees were injured. There was evidence that Amador’s bike sustained damage to its left side and front and back fender and that the other two bikes were completely wrecked.

A State trooper testified that he found all three bikes west of the curb with Allen’s bike lying 18 feet south of a light standard, facing north, Kozloski’s bike facing south about 25 feet south of Allen’s bike and 7 or 8 feet west of the curb, and Amador’s bike about 3 feet south of Kozloski’s standing on the edgeline when he saw it.

The defendant testified that the night was dark but dry and clear; the road straight with view unobstructed; she had slowed to about 30 m.p.h. as she approached the traffic light at the intersection; her headlights were on low beam, and she could see the white edgeline. She said she was fully within the right hand lane at all times. As she went through the intersection she heard a “thud” and pulled off the side of the road. She said she believed she hit one motorcycle. The damage to her bumper was slight, with some damage to the front right side.

The jury answered a special interrogatory finding plaintiff free of contributory negligence and found defendant guilty of negligence, awarding plaintiff $200,000 in damages.

Defendant argues that plaintiff, on these facts, was either guilty of contributory negligence as a matter of law, or that the jury’s verdict and .its negative answer to the special interrogatory were against the manifest weight of the evidence. We cannot agree.

The jury could assess the credibility of the witnesses and resolve the conflict in the evidence and in so doing conclude that Allen’s motorcycle’s wheels were placed against the curb, that he was standing not more than 6 inches from the seat which extended only about 7% inches past the imaginary line bisecting the bike lengthwise and that Allen was at the time of the collision west of the edgeline. The fact that little damage was done to the right front bumper of defendant’s car does not prove that no part of Allen’s bike was hit by the car or that Allen was in the roadway at the time. There was considerable evidence from which the jury could draw the inference that defendant’s car did hit the plaintiff’s bike and that she may have been off the roadway at the time. The bike was struck in the rear, there was considerable damage to it, and there was a total wreck of Kozloski’s motorcycle which was west of Allen’s; defendant admitted that she believed she hit one motorcycle, and there was evidence that Allen’s motorcycle was beyond the shoulder after the accident.

Defendant also argues that plaintiff was contributorily negligent because he chose to work on his motorcycle in a hazardous area even though he could have worked as well in complete safety on one of the nearby driveways or grassy areas.

It is generally true that where one chooses, for no particular reason, not to use a safer method available the plaintiff may be guilty of contributory negligence as a matter of law; but the crucial issue is whether the choice of the less safe course of action is reasonable under the circumstances. (Connolly v. Melroy (1978), 63 Ill. App. 3d 850, 853-54.) Thus, it has been held that standing in front of a car which one is repairing and asking another person to start the engine is not necessarily contributory negligence as a matter of law. (Paul v. Carroll (1973), 16 Ill. App. 3d 173, 176.) Here, the circumstances show that plaintiff’s decision to choose what appears to have been the more dangerous alternative was not necessarily unreasonable. There is some evidence that plaintiff had reason to fear that his bike might tip over and fall on him if he worked on the somewhat inclined area west of the curb. It would appear that the traffic was very light during the time he was working, and he had managed to work with no particular problems for nearly half an hour with cars passing. Further, there was evidence that the Kozloski and Amador motorcycles’ tail lights were pointed north, that the area was further illuminated by lights from cars coming off the bridge and that the reflected light from plaintiff’s motorcycle’s reflector was visible, according to an expert’s opinion, from 1500 to 2000 feet away. We conclude that there was sufficient evidence of the reasonableness of the plaintiff’s choice of alternatives to go to the jury as an issue of fact, particularly since the jury could have found that the plaintiff and his motorcycle were both off the roadway entirely at the time plaintiff was struck.

Defendant appears to argue that the plaintiff was guilty of contributory negligence as a matter of law because he was on the roadway in violation of a State statute (Ill. Rev. Stat. 1979, ch. 95%, par. 11 — 1301) which generally provides that a vehicle should not be left upon the roadway when it is practicable to stop, park or leave it off the roadway, except where it is disabled to the extent that it is impossible to avoid temporarily leaving the vehicle in such position. However, as we have noted, the jury could have found from the evidence that the plaintiff and his cycle were not on the roadway, that is, that portion of the highway used for vehicular traffic (Ill. Rev. Stat. 1979, ch. 95%, par. 1 — 179) and also therefore not within an intersection. (Ill. Rev. Stat. 1979, ch. 95%, par. 1 — 132.) Moreover, violation of the safety statute is not negligence per se, but evidence of negligence only, and may be rebutted by proof that the party acted reasonably under the circumstances despite the violation. Davis v. Marathon Oil Co. (1976), 64 Ill. 2d 380, 390.

In her post-trial motion, defendant alleged that the jury improperly considered that plaintiff would probably incur attorney’s fees and added that to its verdict. Attached to the motion was an affidavit by the jury foreman that “the jury believed that plaintiff Jon Allen would be forced to incur attorney’s fees of approximately one-third of the amount awarded to him 999 [and] increased the damages by such an amount.” The trial court granted plaintiff’s motion to strike the affidavit and denied the motion for a new trial. We find no error in this ruling. It is clearly established that the use of affidavits of testimony to show the motive, the method or process by which a jury has reached its verdict is not permitted. (Chalmers v. City of Chicago (1982), 88 Ill. 2d 532, 537. See also People v. Preston (1979), 76 Ill. 2d 274, 288; People v. Holmes (1978), 69 Ill. 2d 507, 511-12.) The affidavit alleges no outside influence or extraneous information but merely makes conclusionary statements about the motive, method or process by which the jury reached its verdict as to damages and what the jury considered, believed and felt. Such conclusions about the jurors’ mental and decisional processes are plainly inadmissible.

The claimed error in the court’s refusal to grant a mistrial arises from the following facts. The plaintiff attempted to introduce into evidence two estimates prepared by auto body shops after the accident of the damage done to defendant’s car. The trial court, on defense counsel’s objection, ruled the damage estimate inadmissible, reasoning that the photographs of the car in evidence adequately depicted the extent of the damage and that the price of the repairs to the car was not material to the case.

Before his re-cross-examination of State Trooper Watson, who investigated the scene, plaintiff’s attorney asked defendant’s attorney for two exhibits “of the damage estimate.” He then asked Watson questions while holding the damage estimate in front of him. The gist of the questions was whether or not the officer knew what a “header panel” or a “hinge plate” is with reference to defendant’s automobile. The court sustained defense counsel’s objection at this point and defendant moved for a mistrial, arguing that the questioning was an improper attempt to impeach Watson’s testimony about the damage to defendant’s car by using documents previously ruled inadmissible. Defendant urges that the questioning was prejudicial misconduct on a crucial issue which dealt with the relative location of Allen, his motorcycle, defendant’s car, the edgeline and the roadway. We do not so conclude. It appears unlikely that the questions caused the jury to denigrate Watson’s testimony as to the damage he saw or disregard the photographic evidence. Furthermore, Watson’s testimony was only one of numerous factors the jury had to consider in deciding whether plaintiff was on the roadway; and whether plaintiff was in the roadway was only one of several factors involved in the question of plaintiff’s contributory negligence. Whether to grant a new trial based on alleged misconduct by counsel was a matter for the discretion of the trial court, which will not be disturbed absent a clear abuse. Ferenbach v. DeSyllas (1977), 45 Ill. App. 3d 599, 602-03.

The judgment is affirmed.

Affirmed.

UNVERZAGT and VAN DEUSEN, JJ., concur.