text:
    ELEANOR F. ANDERSON, Plaintiff-Appellant, v. JAMES FERRIS et al., Defendants-Appellees.
    Second District
    No. 2—83—0905
    Opinion filed October 12, 1984.

      Dale W. Bruckner, of Peregrine, Stime, Newman & Ritzman, Ltd., of Wheaton, for appellant.
    A.F. Mannina, of Marco & Mannina, of Downers Grove, for appellees.
   JUSTICE REINHARD

delivered the opinion of the court:

Plaintiff, Eleanor E Anderson, following a bench trial, appeals from the trial court’s denial of her petition to set aside a quit-claim deed dated June 15, 1982, wherein defendant James Ferris transferred his interest in the marital residence to his wife, defendant Ruth N. Ferris. Plaintiff originally filed á separate suit against James Ferris on September 23, 1980, to recover damages in connection with the wallpapering and painting of plaintiff’s home by James and obtained a judgment in her favor of $5,550 plus costs on June 23, 1982. Plaintiff filed her petition instituting this action after attempting to execute on that judgment and learning that James Ferris had no assets with which to satisfy the judgment.

Plaintiff maintains on appeal that the trial court erred in applying the law of fraudulent conveyance to the facts of this case and should have set aside the transfer of James' interest in the marital residence to Ruth because it was made for no consideration and for the purpose of impairing plaintiff’s rights as a creditor. Defendants counter that James had no interest in the property at the time of the transfer because a resulting trust in Ruth’s favor had arisen at the time the property was originally purchased.

The following evidence was adduced at a bench trial. James Ferris, appearing as an adverse witness, stated he and his wife were married in 1947, and the marital residence located at 5627 South Garfield, Hinsdale, in which they still resided, was purchased in 1955. James’ name was on the mortgage and the property title, and the property was jointly held until June 15, 1982. On that date, James, by quit-claim deed, transferred his interest in the residence to Ruth for no consideration. At the time the transfer was made, there was a lawsuit pending against James in which Eleanor Anderson was the plaintiff. On June 23, 1982, there was a judgment rendered in favor of plaintiff in the amount of $5,550 plus court costs. James said that his motivation in quit-claiming his interest in the house was that the “money that was put into the house for the most part was put in by wife, practically all of it, perhaps all of it including the down payments, the house was hers and it was intended to be hers all those years.” James did not want the house to be subject to satisfaction of any judgment that might be rendered against him. He supposed that if plaintiff got a judgment against him, it could be enforced by a sale of the house.

James further testified that his earnings from his self-employment as a painter and decorator were used for business and living expenses, and living expenses included food, shelter, child, and clothing expenses. He did not recall making any mortgage payments himself, and may have or may not have. He often would turn his checks from his business over to his wife, and she would coordinate the family expenditures. There was no segregation of funds between James and Ruth, since James had neither a checking nor a savings account and funds that James turned over to his wife were deposited into her checking account.

On her own behalf, Ruth Ferris testified that a fire in 1979 destroyed all of their records. Around the time the house was purchased, she received several thousand dollars from her mother that she spent on the house. She made the down payment at the time of the purchase. When Ruth attempted to obtain a mortgage from Mid-America, Mid-America would not give a woman a mortgage and insisted that her husband sign the mortgage and that his name be on the deed. Ruth stated that she made all the mortgage payments, and she identified checks drawn on her bank account, signed by her, for house payments that were dated from 1979 to the present. Throughout her working career, Ruth earned more than her husband James. His net earnings for the last four years after expenses ranged from $6,600 to $9,499, while her earnings were from $15,800 to $23,885. Ruth stated that it was her intention to keep her earnings separate from James’ earnings and to keep her property separate from James’ business. Two automobiles, a bank account and credit cards were in her name alone. She explained that the house had always been hers and the transfer in June of 1982 was to keep it separate from her husband’s business. Until she met with counsel, she had understood that she could not take her husband’s name off the property as long as the bank held the mortgage.

On cross-examination, Ruth stated that her husband would give her cash or checks from his business which on a number of occasions she deposited in her account. From her checking account she also would pay some of her husband’s business expenses. While James was not a signator on the account, his name, along with Ruth’s, was printed on the checks. Ruth identified checks which had been drawn by plaintiff and made payable to James for the work previously performed by him. These checks had been endorsed by James and deposited into Ruth’s account, the same account from which mortgage payments were made.

At the close of the testimony, the trial court denied the petition to set aside the conveyance, finding that the evidence clearly showed that the parties never intended the home to be subject to the liability of James’ business; that the intent was accomplished by the conveyance perhaps to the legal detriment of plaintiff; and that there was no evidence that plaintiff at any time relied upon that home as security for her contract with James Ferris.

Plaintiff contends on appeal that the conveyance should be set aside because it was made without consideration and for the purpose of impairing plaintiff’s rights as a creditor. Fraudulent conveyances are those “made with the intent to disturb, delay, hinder or defraud creditors ***.” (Ill. Rev. Stat. 1981, ch. 59, par. 4.) Illinois law distinguishes between conveyance’s that are fraudulent in fact and those fraudulent in law. (First Security Bank v. Bawoll (1983), 120 Ill. App. 3d 787, 791, 458 N.E.2d 193.) In fraud-in-fact cases, actual consideration has been given for the transfer and a specific intent to defraud must be proved. (First Security Bank v. Bawoll (1983), 120 Ill. App. 3d 787, 791, 458 N.E.2d 193.) In contrast, when a conveyance is made for no or inadequate consideration, it is fraudulent in law: fraud is presumed (First Security Bank v. Bawoll (1983), 120 Ill. App. 3d 787, 791, 458 N.E.2d 193; Harris v. Aimco, Inc. (1978), 66 Ill. App. 3d 60, 62, 383 N.E.2d 631), and intent is immaterial. (Birney v. Solomon (1932), 348 Ill. 410, 415, 181 N.E. 318; Till v. Till (1967), 87 Ill. App. 2d 358, 361, 231 N.E.2d 641.) Here, although defendants’ testimony that the transfer was made to shelter it from James’ business liabilities would be sufficient evidence of intent to constitute fraud in fact, we must decide this case based on the principles of fraud in law, since James acknowledged that the conveyance was made for no consideration. (First Security Bank v. Bawoll (1983), 120 Ill. App. 3d 787, 791, 458 N.E.2d 193.) While the trial court focused on intent in its findings, it was apparently referring to defendants’ intent that the house should not be subject to James’ business indebtedness, which is different than an intent to hinder plaintiff in the satisfaction of the judgment which had been rendered against James. Nevertheless, based on the foregoing analysis, emphasis on intent where the conveyance is fraudulent in law is misplaced.

To prove fraud in law, (1) there must be a voluntary gift; (2) there must be then existing or contemplated indebtedness against the donor; and (3) it must appear the donor did not retain sufficient property to pay his indebtedness. (Mills v. Susanka (1946), 394 Ill. 439, 448, 68 N.E.2d 904.) Here, since James received no consideration for the conveyance of his interest in the home, the transfer is deemed voluntary. (See First Security Bank v. Bawoll (1983), 120 Ill. App. 3d 787, 791, 458 N.E.2d 193; Till v. Till (1967), 87 Ill. App. 2d 358, 361, 231 N.E.2d 641.) Plaintiff’s pending suit against James for monetary damages is clearly a contemplated indebtedness, especially in light of James’ testimony that he was concerned that a judgment against him in plaintiff’s initial suit for damages could be enforced by a sale of the house. Defendants’ answer admitted that James had no assets with which he could satisfy plaintiff’s judgment. Given these facts, the transfer must be presumed fraudulent.

Where the conveyance is made by the debtor to his wife and the debtor is thereby rendered insolvent, the burden of dispelling the implications of fraud as against pre-existing creditors is upon the debtor and his wife. (Thompson v. Williams (1955), 6 Ill. 2d 208, 212, 127 N.E.2d 457.) The presumption of fraud can only be overcome by showing that after the transfer, the debtor retained ample assets to cover the debts (Harting v. Jockers (1891), 136 Ill. 627, 635, 27 N.E. 188; First Security Bank v. Bawoll (1983), 120 Ill. App. 3d 787, 791, 458 N.E.2d 193), or that adequate consideration was given for the transfer (Harris v. Aimco, Inc. (1978), 66 Ill. App. 3d 60, 62, 383 N.E.2d 631), thus requiring that the case be analyzed under fraud-in-fact principles, where actual intent to defraud must be proved. (Till v. Till (1967), 87 Ill. App. 2d 358, 361, 231 N.E.2d 641.) Since defendants admitted in their answer that James did not have ample assets to satisfy the judgment and since James conceded at trial that the transfer was made for no consideration, the presumption of fraud must stand.

Defendants argue, however, that plaintiff’s rights as a creditor were not impaired because James had no real interest in the property which plaintiff could attach. They contend that Ruth paid the down payment on the house and made all the mortgage payments and that James’ name was on the mortgage and the property title only because Ruth could not obtain the mortgage otherwise. Thus, they conclude a resulting trust arose in Ruth’s favor so that James had no ownership interest in the house.

A resulting trust is created by law and arises from the presumed intention of the parties, distilled from their conduct; it comes into being at the instant the title vests or not at all. (Suwalski v. Suwalski (1968), 40 Ill. 2d 492, 495, 240 N.E.2d 677.) A party seeking to establish a resulting trust has the burden of proving it by clear, convincing, unequivocal and unmistakable evidence. (In re Estate of Wilson (1980), 81 Ill. 2d 349, 356, 410 N.E.2d 23; Suwalski v. Suwalski (1968), 40 Ill. 2d 492, 495, 240 N.E.2d 677; Kaibab Industries, Inc. v. Family Ready Homes, Inc. (1983), 111 Ill. App. 3d 965, 975, 444 N.E.2d 1119.) Since the law surrounding resulting trusts was created to enforce the intent of the parties, certain rebuttable presumptions have evolved based on the relationship of the parties. (In re Estate of Wilson (1980), 81 Ill. 2d 349, 356, 410 N.E.2d 23.) For example, a presumption of gift arises where a spouse pays the purchase price but ownership is taken in joint tenancy with the other spouse. (In re Estate of Wilson (1980), 81 Ill. 2d 349, 356, 410 N.E.2d 23; Ludwig v. Ludwig (1952), 413 Ill. 44, 51, 107 N.E.2d 848.) The burden is upon one questioning the gift to overcome the presumption by clear, convincing, unequivocal and unmistakable evidence. In re Estate of Wilson (1980), 81 Ill. 2d 349, 357, 410 N.E.2d 23.

The basic evidence tending to show that defendants intended Ruth to be the sole owner was their testimony that James’ name was on the mortgage and deed only because Ruth could not procure a mortgage otherwise, that they always intended the house to be Ruth’s, and that Ruth paid the down payment and made all the mortgage payments.

However, defendants’ testimony concerning their original intent is not conclusive (see Flynn v. O’Dell (7th Cir. 1960), 281 F.2d 810, 812-15), and where the evidence is contradictory, the factual determinations necessary to decide the case are left to the trial court. (Zack Co. v. Sims (1982), 108 Ill. App. 3d 16, 27, 438 N.E.2d 663.) Those determinations will not be reversed unless they are against the manifest weight of the evidence. Zack Co. v. Sims (1982) 108 Ill. App. 3d 16, 27, 438 N.E.2d 663.

Unfortunately, the trial court did not expressly decide whether a gift had been made or, if the presumption of gift had been rebutted, whether a resulting trust had arisen. However, the necessary result of deciding either of those questions is a determination of whether James had an ownership interest in the marital home, and the trial court did implicitly make a finding as to ownership, which ultimately responds to the defendants’ defense and settles these issues. The trial judge stated that “I think that the evidence is clear that the parties never intended the property to be *** subject of liability to the husband’s business. I think that intent *** was accomplished by the conveyance perhaps to the legal detriment of the Andersons.” (Emphasis added.) We perceive that the trial court indicated by this language that it found James did possess an ownership interest in the property. Otherwise, plaintiff would have suffered no detriment by the conveyance, since James would have had no property interest to attach regardless of whether there had been a conveyance. Therefore, this apparent finding that James had an ownership interest in the property which he conveyed to Ruth to the detriment of plaintiff is supported by the evidence, and we need not reweigh the evidence to draw a different conclusion. See Zack Co. v. Sims (1982), 108 Ill. App. 3d 16, 27, 438 N.E.2d 663.

However, we also conclude from our examination of the record that as a matter of law the defendants have failed to establish their burden by clear, convincing, unequivocal and unmistakable evidence that a resulting trust was intended. The evidence discloses that defendants both lived in the house and held title to it in joint tenancy for over 25 years. James testified that his earnings went toward, among other things, shelter. While he stated he did not recall making any mortgage payments personally, his earnings were often deposited in Ruth’s checking account from which the mortgage payments were made.

Contrary to defendants’ contention that they “exhibited the intent that all family property would be kept separate from the husband and his business,” the evidence of their conduct reveals a consistent commingling of James’ earnings into Ruth’s checking account, the sole checking account of the family, from which mortgage and other family expenses were paid as well as James’ business expenses. James had no separate checking or savings account for his business. It appears that Ruth managed the family financial affairs, including the receipts and disbursements from James’ business. Thus, there is not any segregation of James’ business income and expenses from family expenses which include the mortgage payments. James’ transfer of his interest in the family residence approximately one week before trial of the original action against him and defendants’ consistent conduct of commingling of the business and family financial affairs for 25 years as discussed above so completely refute the trial testimony of the defendants that Ruth was really intended to be the sole owner of the marital residence when originally purchased that, as a matter of law, a resulting trust has not been established by the clear, convincing, unequivocal and unmistakable evidence required.

Plaintiff also seeks an award of attorney fees, relying on Ritter v. Ritter (1943), 381 Ill. 549, 46 N.E.2d 41, Simon J. Carlson & Son, Inc. v. Fricke (1963), 45 Ill. App. 2d 88, 195 N.E.2d 17 (abstract of opinion), and Jones v. People (1885), 19 Ill. App. 300, but upon analysis we believe that these cases are inapposite and do not provide authority for plaintiff’s request. The general rule in Illinois is that in the absence of a statute or an agreement, the successful litigant in a civil action may not recover attorney fees or the ordinary expenses of litigation from his adversary. (Saltiel v. Olsen (1981), 85 Ill. 2d 484, 488-89, 426 N.E.2d 1204; Losurdo Brothers v. Arkin Distributing Co. (1984), 125 Ill. App. 3d 267, 274-75, 465 N.E.2d 139.) There is no applicable statute providing for attorney fees and, of course, no agreement here between the parties for such fees. While it has been stated that when an award of punitive damages is authorized, expenses and attorney fees may be considered in estimating the amount of damages but are not allowable in addition to the sum assessed as exemplary damages (Russow v. Bobola (1972), 2 Ill. App. 3d 837, 843, 277 N.E.2d 769), this complaint neither specifically sought punitive damages nor has plaintiff cited us any Illinois authority which would authorize such damages for this type of action. Plaintiff is therefore not entitled to attorney fees.

For the foregoing reasons, we reverse the judgment and remand to the trial court for the limited purpose of voiding the conveyance and granting plaintiff such other relief as necessary to implement this decision.

Reversed and remanded with directions.

LINDBERG and HOPF,. JJ., concur.


source: Caselaw Access Project

author: JUSTICE HOPF

license: Public Domain

text:
    IRENE SILVA WIMMER, Special Adm’r pendente lite for the Estate of Judith Ann Silva, Deceased, et al., Plaintiffs-Appellants, v. LAWRENCE KOENIGSEDER et al., Defendants-Appellees.
    Second District
    No. 2—83—0891
    Opinion filed October 19, 1984.

      James J. DeSanto, of Waukegan, and Thomas M. P. Hannigan, of Mundelein, for appellants.
    Steven L. Larson and William A. Holmquist, both of Wildman, Harrold, Allen & Dixon, of Waukegan, for appellees.
   JUSTICE HOPF

delivered the opinion of the court:

Plaintiff, Irene Silva Wimmer, individually and as special administrator pendente lite for the estate of Judith Ann Silva, appeals from an order granting defendants’ motion to dismiss plaintiff’s complaint for lack of personal jurisdiction. Defendants include Gilbert, Rita, Christopher and Mark Meisgeier, as well as two foreign corporations, Rock-It North and Horsin’ Around, and Lawrence Koenigseder. The trial court also granted defendant Koenigseder’s motion for transfer to McHenry County.

On appeal, plaintiff contends that the trial court erred in dismissing the complaint for want of jurisdiction and erred in denying her motion for discovery into the jurisdictional facts raised by defendants’ motion to dismiss. For the reasons discussed below, we believe the trial court must be reversed.

The first-amended complaint alleged that on July 17, 1982, while a passenger in a car driven by Lawrence Koenigseder, Judith was injured in an accident in McHenry County, Illinois. She died from these injuries on July 26,1982.

Prior to the accident 19-year-old defendant Koenigseder and 17-year-old Judith had been served intoxicating liquors at the defendants’ taverns, the Rock-It North and Horsin’ Around in Trevor, Wisconsin. Both taverns were approximately two-tenths of a mile north of the Wisconsin-Illinois line. Both Koenigseder and Judith were Illinois residents. The complaint alleged that defendant Koenigseder became intoxicated at the aforesaid clubs and that the car he was operating left the road and collided with a utility pole.

The plaintiff commenced this action against Koenigseder and the other defendants seeking recovery under the Wrongful Death and Survival Act (Ill. Rev. Stat. 1981, ch. 70, pars. 1, 2.1), and the Illinois Dramshop Act (Ill. Rev. Stat. 1981, ch. 43, par. 135). The Meisgeiers were served in Wisconsin, filed special appearances and moved to quash service for want of jurisdiction. Their affidavits stated they are not Illinois residents and do not do business in Illinois as claimed in the complaint. Plaintiff’s complaint also alleged that defendants’ negligence was the direct and proximate cause of the injuries and subsequent death of plaintiff’s minor decedent.

Affidavits of the plaintiff’s attorneys were filed in accordance with Supreme Court Rule 191(b) (87 Ill. 2d R. 191(b)). These affidavits revealed, among other things, that Gil Meisgeier met with police authorities of border towns, Antioch, Winthrop Harbor, Zion, and the Lake County sheriff’s office for the purpose of discussing the problem of selling liquor to Illinois residents under the age of 21. He assured the local officials he would remind his patrons to drive safely. Defendant also appeared before the Wisconsin legislature to speak in opposition to the raising of the drinking age to 21. He argued that it would be detrimental to Wisconsin tourism. He also said his waitresses serve nonalcoholic spacers to curb excessive drinking. It was also alleged that the defendant taverns handed out maps and fliers to its Illinois patrons that directed patrons to the back roads of Illinois which are not heavily patrolled by police.

In his deposition, Antioch Police Chief Charles Miller stated that in making a study for the Illinois Department of Transportation, he checked the parking lots of the two taverns in question in December 1982 and January 1983 and approximately 90% of the vehicles in the parking lots had Illinois license plates. Miller also stated that the number of drunk driving arrests increased dramatically after Illinois raised its drinking age to 21, with most arrests occurring on the southbound lane of Route 83. These people were Illinois residents under the age of 21 returning from the defendant taverns.

Plaintiff filed other documents which, she contends, establish the basis for personal jurisdiction over the defendants in accordance with the Illinois long-arm statute. (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 209.) These documents alleged the following facts: Gil and Rita Meisgeier own real property in Illinois; defendants advertised in the Illinois Entertainer, a monthly newspaper published in Mount Prospect, Illinois. They had advertisements appearing in the May, July, August, and October 1982 editions. The ads stated that the taverns are located on “ROUTE 83 JUST NORTH OF THE ILLINOIS STATE LINE” and “YOU NEED ONLY BE 18 TO BLAST OFF AT ROCK-IT NORTH.” The June 1983 issue contained the statement “Entertainment Management by ARK (312) 932-7535 and Rock-It North” at the bottom of the advertisement. This telephone number is an Illinois exchange through which bookings may have been arranged.

Defendants’ motion to dismiss was granted, and the motion for rehearing was denied. Plaintiff appeals.

The jurisdictional issue presented in the instant case has not been decided in Illinois. Thus, we are faced with the question of whether the defendants committed acts which subjected them to in personam jurisdiction under the Illinois long-arm statute, which provides in pertinent part:

“(a) Any person, whether or not a citizen or resident of this State, who in person or through an agent does any of the acts hereinafter enumerated, thereby submits such person, and, if an individual, his or her personal representative, to the jurisdiction of the courts of this State as to any cause of action arising from the doing of any of such acts:

(1) The transaction of any business within this State;

(2) The commission of a tortious act within this State; ***.” Ill. Rev. Stat. 1981, ch. 110, pars. 2 — 209(a)(1), (2).

Plaintiff argues that defendants both committed a tort in Illinois and transacted business so as to justify the assertion of jurisdiction.

The determination of whether a nonresident defendant has performed acts sufficient to have submitted to the jurisdiction of the forum State is based upon due process notions of whether certain “minimum contacts” exist between the defendant and the forum such that requiring him to defend there is reasonable and does not offend “traditional notions of fair play and substantial justice.” (World-Wide Volkswagen Corp. v. Woodson (1980), 444 U.S. 286, 292-93, 62 L. Ed. 2d 490, 498, 100 S. Ct. 559, 564-65; International Shoe Co. v. Washing ton (1945), 326 U.S. 310, 316, 90 L. Ed. 95, 102, 66 S. Ct. 154, 158.) The fair play and substantial justice statements were narrowed somewhat by the requirement of Hanson v. Denckla (1958), 357 U.S. 235, 253, 2 L. Ed. 2d 1283, 1298, 78 S. Ct. 1228, 1240, wherein the court stated:

“[I]t is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.”

Another critical concern is that some relationship exists among the defendants, the forum and the litigation to make subjecting the defendants to suit reasonable. (Shaffer v. Heitner (1977), 433 U.S. 186, 204, 53 L. Ed. 2d 683, 698, 97 S. Ct. 2569, 2580.) Thus, the determination of the sufficiency of minimum contacts is a flexible one which focuses on the nature of defendant’s activities within the forum in the context of the circumstances presented. International Shoe Co. v. Washington (1945), 326 U.S. 310, 319, 90 L. Ed. 95, 104, 66 S. Ct. 154, 160; Braband v. Beech Aircraft Corp. (1978), 72 Ill. 2d 548, 382 N.E.2d 252, cert. denied (1979), 442 U.S. 928, 61 L. Ed. 2d 296, 99 S. Ct. 2857.

Until 1981, Illinois courts followed this approach and interpreted the long-arm statute so as to permit the assertion of jurisdiction over nonresident defendants to the extent permitted by the due process clause. (Nelson v. Miller (1957), 11 Ill. 2d 378, 389, 143 N.E.2d 673; Coca-Cola Co. v. A. Epstein & Sons, International, Inc. (1980), 89 Ill. App. 3d 253, 257, 411 N.E.2d 917.) Then, beginning with Green v. Advance Ross Electronics Corp. (1981), 86 Ill. 2d 431, 427 N.E.2d 1203, the Illinois Supreme Court made it plain that it would not necessarily expand the Illinois long-arm statute to the full extent the due process clause would allow. (Green v. Advance Ross Electronics Corp. (1981), 86 Ill. 2d 431, 436-37, 427 N.E.2d 1203; Cook Associates, Inc. v. Lexington United Corp. (1981), 87 Ill. 2d 190, 197, 429 N.E.2d 847.) Thus, we must first consider whether defendants’ conduct falls within the meaning of the long-arm statute, and, more importantly, whether there are sufficient “minimum contacts” to justify the exercise of jurisdiction by the Illinois courts over the defendants in compliance with due process safeguards. Veeninga v. Alt (1982), 111 Ill. App. 3d 775, 777, 444 N.E.2d 780; see Deluxe Ice Cream Co. v. R.C.H. Tool Corp. (7th Cir. 1984), 726 F.2d 1209, 1214.

It has been held that the mere solicitation for business does not constitute the doing of business in Illinois. In Loggans v. Jewish Community Center (1983), 113 Ill. App. 3d 549, 447 N.E.2d 919, a Wisconsin summer camp placed an advertisement in Illinois papers and agreed to allow 20 Illinois adults to use the camp every year. These activities were not sufficiently substantial to constitute the doing of business in Illinois. Loggans involved an injury to a plaintiff who was visiting the camp eight years after she worked there. The court held that in order for plaintiffs claim to succeed, it must be one which “lies in the wake of the commercial activities by which defendant submitted to the jurisdiction of Illinois courts.” (Loggans v. Jewish Community Center (1983), 113 Ill. App. 3d 549, 557, 447 N.E.2d 919, 925.) Because eight years had passed between plaintiff’s employment and her injury, the court held that her claim did not “lie in the wake” of the defendant’s commercial activities.

However, under other circumstances the solicitation of business inside Illinois has been found to be a sufficient basis for sustaining personal jurisdiction over a nonresident defendant. (Clements v. Barney’s Sporting Goods Store (1980), 84 Ill. App. 3d 600, 602, 406 N.E.2d 43; Morton v. Environmental Land Systems, Ltd. (1977), 55 Ill. App. 3d 369, 373, 370 N.E.2d 1106; cf. Colnar v. Baldknobbers (1982), 107 Ill. App. 3d 234, 239, 437 N.E.2d 718.) The cases plaintiff cites illustrate a variety of activities in which jurisdiction has been found, although none is factually similar to the present case. In Connelly v. Uniroyal, Inc. (1979), 75 Ill. 2d 393, 389 N.E.2d 155, appeal dismissed (1980), 444 U.S. 1060, 62 L. Ed. 2d 738, 100 S. Ct. 992, a product liability action, a foreign corporation was found to be doing business in Illinois because its products regularly entered Illinois in substantial amounts. In Braband v. Beech Aircraft Corp. (1978), 72 Ill. 2d 548, 382 N.E.2d 252, cert. denied (1979), 442 U.S. 928, 61 L. Ed. 2d 296, 99 S. Ct. 2857, the defendant manufacturer was held to be present and doing business in Illinois because it maintained a contractual relationship with an Illinois distributor who, subject to the defendant’s inspection, was authorized to sell and required to service defendant’s products. Defendant also cosponsored an Illinois sales program in Illinois. In contrast, the court found in Cook Associates, Inc. v. Lexington United Corp. (1981), 87 Ill. 2d 190, 429 N.E.2d 847, that as the arrangement of an interview in Chicago played no part in the latter hiring of the applicant to fill a different position, the interview was not a “transaction of business” establishing jurisdiction under the long-arm statute.

Applying the standards utilized in the above cases, the defendants here are amenable to suit under the “transaction of any business” provision of the Illinois long-arm statute. On a motion to dismiss, taking as true the plaintiff’s well-pleaded allegations and affidavits filed in apposition, as well as the deposition of Police Chief Miller, the record shows that the defendants regularly advertised in an Illinois newspaper to make Illinois residents aware of their facilities and the advantage of Wisconsin’s lower legal drinking age. Standing alone, this would be an insufficient basis for the exercise of jurisdiction. However, a significant portion, if not a vast, majority, of defendants’ business consisted of sales to Illinois residents. Under the circumstances presented, it was reasonable for defendants to foresee that serving alcoholic beverages to Illinois residents 18 years old or older might lead to the consequences such as those which resulted here and that those consequences might occur in Illinois. This is especially true where one of the defendants came into Illinois to address the problem of increased drunken driving arrests of underage Illinois residents returning from defendants’ establishments and the defendants having made maps available to Illinois patrons which showed back roads which are not usually patrolled. Additionally, defendants’ use of an Illinois telephone number in its advertising raises a strong inference of its having made business arrangements within Illinois. Therefore, we believe that the plaintiff’s claim “lies in the wake” of defendants’ commercial activity. Loggans v. Jewish Community Center (1983), 113 Ill. App. 3d 549, 557, 447 N.E.2d 919, 925.

Also, the exercise of jurisdiction over the defendants does not violate due process requirements. Defendants had an ongoing business relationship with Illinois. By soliciting business from Illinois residents, by making them aware of their facilities and of the advantage of the lower legal drinking age in Wisconsin, the defendants invoked the benefits and protections of Illinois law during the course of its business dealings. (Clements v. Barney’s Sporting Goods Store (1980), 84 Ill. App. 3d 600, 602, 406 N.E.2d 43; Morton v. Environmental Land Systems, Ltd. (1977), 55 Ill. App. 3d 369, 373, 370 N.E.2d 1106; cf. Colnar v. Baldknobbers (1982), 107 Ill. App. 3d 234, 239, 437 N.E.2d 718.) Although it was not alleged that plaintiff was aware of defendants’ advertising, in view of defendants’ activities in attracting Illinois customers and the profits which defendants regularly reap as a result of such activities, it does not offend traditional notions of fair play and substantial justice to require defendants to defend this action in Illinois. Thus, given the relationship among these defendants, this forum, and this litigation, it is reasonable to subject the defendants to suit in Illinois.

Further, from the facts presented it appears plaintiff’s cause of action arises from the commission of a tortious act by defendants in Illinois within the meaning of subparagraph (2) of the long-arm statute. (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 209(a)(2).) A tortious act under this statute includes any act committed within Illinois which involves a breach of a duty owed to another and makes the person committing the act liable to the other for damages. (In re Estate of Wrigley (1982), 104 Ill. App. 3d 1008, 1019, 433 N.E.2d 995.) For the purposes of the long-arm statute, “physical presence is not necessary for the commission of a tortious act within this State; *** the place of a wrong is where the last event takes place which is necessary to render the actor liable.” (Green v. Advance Ross Electronics Corp. (1981), 86 Ill. 2d 431, 437, 427 N.E.2d 1203; see Gray v. American Radiator & Standard Sanitary Corp. (1961), 22 Ill. 2d 432, 435, 176 N.E.2d 761; Restatement (Second) of Conflict of Laws sec. 37 (1971).) Like Gray, the last event in this case was in Illinois, where the injury to plaintiff’s decedent occurred. The fact that the alleged sale took place entirely in Wisconsin, as defendants point out, is of little consequence in this regard. Further, the nature and quality of the defendants’ activities, as discussed earlier, also satisfy due process requirements.

Supportive of plaintiff’s position are a number of out-of-State cases which are factually similar to the present case and which dealt with the question of jurisdiction being asserted over an out-of-State liquor vendor who sold alcoholic beverages to underage forum residents which ultimately led to an accident occurring in the latter State. (Cf. West American Insurance Co. v. Westin, Inc. (Minn. 1983), 337 N.W.2d 676; Young v. Gilbert (1972), 121 N.J. Super. 78, 296 A.2d 87; Hart v. McCollum (1977), 249 Pa. Super. 267, 376 A.2d 644.) Because no Illinois court has been confronted with the situation presented in this case, the decisions in West American and Hart are instructive here. In West American, the Minnesota Supreme Court cautioned that the close proximity of the foreign State to the State in which the alleged sale occurred, the convenience or reasonability of requiring an out-of-State defendant to defend in' the foreign State, or the difference in laws between the forum and the State where the sale occurred, meaning that the only remedy available is in the forum State, is not sufficient to establish minimum contacts. (West American Insurance Co. v. Westin, Inc. (Minn. 1983), 337 N.W.2d 676, 679-81.) The court held that the defendant’s only substantial contact with the forum State, the plaintiff’s “unilateral activity” in driving back into the forum State, was not sufficient to support jurisdiction in the forum. (337 N.W.2d 676, 681.) The court emphasized that in light of World-Wide Volkswagen Corp. v. Woodson (1980), 444 U.S. 286, 62 L. Ed. 2d 490, 100 S. Ct. 559, and Rush v. Savchuk (1980), 444 U.S. 320, 62 L. Ed. 2d 516, 100 S. Ct. 571, the critical concern in any jurisdictional analysis should be not on the plaintiff’s interest in having a case decided in a particular forum, but on the defendant’s interests and contacts with the forum State. (337 N.W.2d 676, 680.) In fact, the court noted, the nonresident defendant’s contacts must be such that it is able to reasonably anticipate being haled into the forum’s State court. (World-Wide Volkswagen Corp. v. Woodson (1980), 444 U.S. 286, 62 L. Ed. 2d 490, 100 S. Ct. 559.) The court found that there must be “purposeful and deliberate contact” with Minnesota in order to invoke jurisdiction. It determined that the defendant’s only demonstrable contact was the plaintiff’s unilateral activity of driving to Minnesota. By contrast, in the case at bar, defendants’ contacts included advertising, speaking to police authorities in communities affected by defendants’ activities and the distribution of maps so defendants' patrons could take back roads and avoid police contact. We believe that this situation, together with the inference which arises from defendants’ Illinois phone number on its advertising, constitutes a purposeful and deliberate contact with Illinois, far more intimate than the “unilateral activity” of driving into Illinois. An additional contact was defendants’ ownership of Illinois real estate. While standing alone this would not establish minimum contacts, it can be considered along with other factors. Rush v. Savchuk (1980), 444 U.S. 320, 328, 62 L. Ed. 2d 516, 525, 100 S. Ct. 571, 577.

Defendants also argue that under the Dramshop Act its liability is not based on tort but on a purely statutory regulation of its status, which imposes liability without regard to fault. Such position is erroneous. An action brought under the Dramshop statute and its predecessors has long been considered an action in tort and is a legislative creation of new rights founded on tortious conduct. Morgan v. Kirk Brothers, Inc. (1982), 111 Ill. App. 3d 914, 917, 444 N.E.2d 504, 506.

Thus, the exercise of jurisdiction over these defendants in Illinois is both in accord with Illinois law and within the confines of due process under both subparagraphs (1) and (2) of the Illinois long-arm statute. Ill. Rev. Stat. 1981, ch. 110, pars. 2 — 209(a)(1),(2).

Plaintiff’s final contention is that the trial court improperly refused her motion for a discovery deposition of defendant, Gil Meisgeier, on the issue of jurisdiction. Because the jurisdictional issue has been resolved, we need not address this contention.

For the reasons stated, the judgment of the circuit court of Lake County is reversed and this cause is remanded for proceedings consistent with this opinion.

Reversed and remanded.

SEIDENFELD, P.J., and NASH, J., concur.


author: JUSTICE WHITE

text:
    JAMES C. BANKSTON, Plaintiff-Appellee, v. CHESAPEAKE & OHIO RAILWAY COMPANY, Defendant-Appellant.
    First District (3rd Division)
    No. 82—1243
    Opinion filed October 10, 1984.
    Rehearing denied November 26, 1984.

      Cornelius P. Callahan, of Chicago, for appellant.
    Corboy & Demetrio, of Chicago (Jeffrey A. Kripton, Robert A. Clifford, and Dean A. Robb, of counsel), for appellee.
   JUSTICE WHITE

delivered the opinion of the court:

Plaintiff, James C. Bankston, brought this action for damages against defendant, Chesapeake & Ohio Railway Company (hereinafter C&O) under the Federal Boiler Inspection Act (45 U.S.C. sec. 22 et seq. (1982)), alleging that he sustained injuries in a fall on the outside catwalk of a locomotive. The jury returned a $300,000 verdict in favor of Bankston and against the C&O. The C&O now appeals, contending that the trial court erred in giving the jury two instructions, each of which concerned the violation of a Federal regulation.

Both instructions were relevant to the issue of liability and not the issue of damages. On the issue of liability, Bankston testified that on October 18, 1977, he was working as an engineer for the C&O. On that day, he was assigned to take a freight train from Charlevoix, Michigan, to Petoskey, Michigan. He had two locomotives, and he and Calvin Cornett, the head brakeman, were on the first locomotive. Bankston positioned the locomotives to “tie into” the train, and when the locomotives reached the standing train cars, Cornett got off the first locomotive to attach the cars. After doing so, Cornett returned to the first locomotive. The train then moved a short distance, but it developed a brake problem. Cornett left the first locomotive to correct the problem. While Bankston waited for Cornett to return, he decided that he would need power from both locomotives to make the trip to Petoskey. Since the second locomotive was running but not supplying power, he decided to go back to the second locomotive to put it “on line” so that it would supply power. Bankston then exited a cab door of the first locomotive and took about two or three steps on an exterior catwalk which ran the entire length of the locomotive. At that point, he slipped on “something” and fell.

Cornett witnessed Bankston’s fall. He testified that as he returned to the first locomotive from correcting the brake problem, he saw Bankston take two or three steps on the catwalk and then saw Bankston slip and fall on the catwalk. Cornett looked at the catwalk where Bankston had fallen and saw a puddle of oil. The puddle was approximately one foot by one foot in area.

There was a considerable amount of evidence in the court below concerning the nature of the injuries that Bankston suffered as a result of his fall. We need not consider this evidence here, however, because it is not relevant to the issues concerning the propriety of the instructions given to the jury.

The C&O first contends that the trial court erred by instructing the jury regarding a possible violation of 49 C.F.R. sec. 230.203(a). The instruction read as follows:

“There was in force in the United States of America, at the time of the occurrence in question, a Federal regulation, which provided that:
Each locomotive unit when used in road service shall be inspected at least every 24 hours, except locomotive units operated on through runs exceeding 24 hours may be inspected at the next crew change point immediately beyond the point at which the 24-hour period expires.
If you decide that defendant violated that Federal regulation on the occasion in question, then you may consider that fact together with all the facts and circumstances in evidence in determining whether or not defendant violated the Federal Boiler Inspection Act before and at the time of the occurrence.”

According to the C&O, it was reversible error to give this instruction in this case because the uncontroverted evidence in the court below showed that the C&O did inspect the locomotive on which plaintiff claimed he was injured. It was undisputed that Bankston’s fall occurred at 7:05 p.m. on October 18, 1977. Defendant’s exhibit No. 7, the official inspection report for the locomotive on which Bankston was injured, showed that that locomotive had been inspected at 11 o’clock on October 17, 1977. In addition, Richard LaMange, a road foreman and assistant trainmaster for the C&O, testified concerning the inspection report. He testified, both on direct examination and cross-examination, that the locomotive had been inspected at 11 p.m. on October 17, 1977. No other testimony was introduced as to the time of the inspection. Since Bankston’s fall occurred within 24 hours of the inspection, there is no evidence in the record from which the jury could have found a violation of the regulation set forth in the instruction.

“Instructions concerning violations of a statute or ordinance should not be given unless the evidence is adequate to support a finding that a violation actually occurred.” (Illinois Pattern Jury Instructions, Civil, No. 60.00, Introduction, at 250 (2d ed. 1971); Figarelli v. Ihde (1976), 39 Ill. App. 3d 1023, 1026, 351 N.E.2d 624.) This rule is equally applicable to an instruction concerning the violation of the Federal regulation in question. Since we have held that there is no evidence adequate to support a violation of the regulation, the giving of the instruction was error.

Bankston contends, however, that we should not even reach the question of the propriety of this instruction because the C&O never objected to this instruction at the instruction conference in the court below on the basis that Bankston presented no evidence of periodic inspections. (See Brown v. Decatur Memorial Hospital (1980), 83 Ill. 2d 344, 350, 415 N.E.2d 337.) He concedes, however, that the C&O did object to the instruction on the basis that it had presented evidence of an inspection within 24 hours prior to the accident. We think that this objection was sufficient to preserve this issue for review.

Bankston further Contends that the instruction was proper because the inspection report itself does not indicate whether the report was made at 11 a.m. or 11 p.m. on October 17, 1977. He argues that given this circumstance the time of the inspection was a proper question for the jury. This argument, however, ignores Richard LaMange’s uncontroverted testimony that the inspection occurred at 11 p.m. There was no evidence to the contrary, and plaintiff’s counsel never challenged LaMange’s testimony on this point. Moreover, in order to justify giving an instruction, there must be some evidence in the record to support the theory set out in the instruction. (Figarelli v. Ihde (1976), 39 Ill. App. 3d 1023, 1028; see also Shelton v. Sunniday Chevrolet (1981), 97 Ill. App. 3d 543, 551, 422 N.E.2d 993; Darby v. Checker Co. (1972), 6 Ill. App. 3d 188, 196, 285 N.E.2d 217.) We do not believe that an inspection report which does not indicate whether it was prepared at 11 a.m. or 11 p.m. constitutes “some evidence” that the inspection occurred at 11 a.m., where a witness gives uncontradicted testimony that the inspection occurred at 11 p.m. Accordingly, we do not believe that there was some evidence of a violation of the regulation.

We do, however, agree with Bankston that the giving of this instruction was harmless error. We base this conclusion upon our reading of the Federal Boiler Inspection Act. Section 23 of the Act (45 U.S.C. sec. 23 (1982)) provides:

“It shall be unlawful for any carrier to use or permit to be used on its line any locomotive unless said locomotive, its boiler, tender, and all parts and appurtenances thereof are in proper condition and safe to operate in the service to which the same are put, that the same may be employed in the active service of such carrier without unnecessary peril to life or limb, and unless said locomotive, its boiler, tender, and all parts and appurtenances hereof have been inspected from time to time in accordance with the provisions of sections 22 to 29 and 31 to 34 of this title and are able to withstand such test or tests as may be prescribed in the rules and regulations hereinafter provided for.”

In Lilly v. Grand Trunk Western R.R. Co. (1943), 317 U.S. 481, 485-86, 87 L. Ed. 411, 415, 63 S. Ct. 347, 351, the United States Supreme Court stated:

“Negligence is not the basis for liability under the [Boiler Inspection] Act. Instead it ‘imposes upon the carrier an absolute and continuing duty to maintain the locomotive, and all parts and appurtenances thereof, in proper condition, and safe to operate *** without unnecessary peril to life or limb.’ [Citations.] Any employee engaged in interstate commerce who is injured by reason of a violation of the Act may bring his action under the Federal Employers’ Liability Act, charging the violation of the Boiler Inspection Act. [Citations.] The Act *** is to be liberally construed in the light of its prime purpose, the protection of employees and others by requiring the use of safe equipment. [Citations.]”

The Supreme Court further stated: “Conditions other than mechanical imperfections can plainly render equipment unsafe to operate without unnecessary peril to life or limb.” (317 U.S. 481, 488, 87 L. Ed. 411, 416, 63 S. Ct. 347, 352.) Lilly and later cases make it clear that the jury in this case had a right to find a violation of the Federal Boiler Inspection Act, regardless of whether there was a violation of any Federal regulation, by reason of the presence of oil on the exterior catwalk of the locomotive. See also Whelan v. Penn Central Co. (2d Cir. 1974), 503 F.2d 886, 888-91; Calabritto v. New York, New Haven & Hartford R.R. Co. (2d Cir. 1961), 287 F.2d 394, 395-97, cert. denied (1961), 366 U.S. 928, 6 L. Ed. 2d 387, 81 S. Ct. 1649 (“dangerous conditions caused by foreign substances give rise to liability under section 23.”).

Since the evidence is uncontroverted that there was oil on the catwalk and that Bankston slipped on it, we believe the jury would have found that the C&O was liable to Bankston despite the erroneous instruction. Indeed, the jury was given an instruction informing it that the Federal Boiler Inspection Act “is violated when a locomotive, catwalk or passageway either is not in proper condition or is not safe to operate in the service to which it is put, and if, when used in the active service of the railroad, such use results in unnecessary peril to life or limb” and that if Bankston was injured and his “injury resulted in whole or in part from a violation of the duty imposed by this statute, *** the railroad shall be liable in damages for the injury.”

Since this latter instruction was not objected to by the C&O and the evidence clearly supported a finding of liability under this instruction, we are of the opinion that the jury’s finding of liability was clearly right upon the facts. Accordingly, we hold that the trial court’s decision to give the instruction based on violation of 49 C.F.R. sec. 230.203(a), although erroneous, was harmless, because the result reached by the jury on the issue of liability was not affected thereby and was the only one warranted by the evidence. If we were to reverse and remand for a new trial on the basis of the erroneous instruction, we believe that the new trial would once again result in a verdict and judgment for Bankston.

The C&O’s second contention is that the trial court erred by instructing the jury regarding a possible violation of 49 C.F.R. sec. 230.229(d). The instruction reads as follows:

“There was in force in the United States of America, at the time of the occurrence in question, a Federal regulation which provided that:
Deck plates and floors of cabs, passageways, and compartments shall be kept free from oil, water, waste, or any obstruction that will create unnecessary peril.
If you decide that defendant violated that Federal regulation on the occasion in question, then you may consider that fact together with all the other facts and circumstances in evidence in determining whether or not defendant violated the Federal Boiler Inspection Act before and at the time of the occurrence.”

According to the C&O, it was reversible error to give this instruction in this case because the regulation in question does not apply to an exterior locomotive catwalk.

Bankston contends that the C&O is barred from raising this objection in this court because it never advanced this objection to the instruction at the instruction conference in the court below. We have reviewed the transcript of the instruction conference and agree that the objection was not made at that time. The C&O contends, however, that the waiver rule should not be applied to preclude consideration of the propriety of the instruction because Bankston did not tender the instruction until immediately before the case went to the jury, Bankston’s amended complaint did not mention any Federal regulations, and neither Bankston’s counsel nor the court below had a copy of Federal regulation 230.229 at the jury instruction conference. We do not decide whether the waiver rule should be relaxed under these circumstances, because we believe that, in any event, the giving of the instruction did not constitute reversible error.

The C&O relies on subsection (a) of 49 C.F.R. sec. 230.229 to argue that subsection (d) of that regulation, the relevant part of which is quoted in the instruction, is only applicable to the inside of a locomotive cab. Subsection (a) provides:

“(a) Definition. The word ‘cab’ as used in the rules and instructions in this subpart means that portion of the superstructure utilized for housing the enginemen and parts and appurtenances of the locomotive and through which a passageway is provided for the use of the enginemen.”

The C&O’s argument that the word “passageways” in subsection (d) refers only to passageways within locomotive cabs appears to be erroneous. Since subsection (d) clearly applies to cabs, and subsection (a) defines a cab to include an interior passageway, there would be no need to refer to the word “passageways” in subsection (d) if the interior passageway was all that was intended to be covered by subsection (d). We do not think that the word “passageways” in subsection (d) should be construed so that it becomes superfluous. Moreover, we observe that the Federal Boiler Inspection Act applies to situations involving the presence of foreign substances outside of the cab of a locomotive. (See Lilly v. Grand Trunk Western R.R. Co. (1943), 317 U.S. 481, 486, 87 L. Ed. 411, 415, 63 S. Ct. 347, 351; Whelan v. Penn Central Co. (2d Cir. 1974), 503 F. 2d 886, 889; Calabritto v. New York, New Haven, & Hartford R.R. Co. (2d Cir. 1961), 287 F. 2d 394, 394.) The C&O does not cite any authority requiring the regulation to be construed more narrowly than the statute, and we decline the opportunity to do so here.

The C&O argues that if we construe the regulation to apply to exterior passageways, we would be imposing a duty on the railroad to keep all rain off outside passageways. Such an impossible requirement, it contends, was not intended by the regulation. The regulation, however, refers to “unnecessary peril,” and we need not decide here whether rain is an “unnecessary peril.”

Even if we were to assume that the Federal regulations were inapplicable to the facts of this case, we think that for the same reason that the giving of the instruction concerning a possible violation of the Federal regulation on inspection was harmless error, the giving of this instruction relating to oil on passageways, if error, was harmless error.

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

Affirmed.

RIZZI, RJ., and McNAMARA, J., concur.

      The word “once” is contained in 49 C.F.R. sec. 230.203(a) but was omitted from the quotation of the regulation contained in the instruction. The regulation provides for inspections “at least once every 24 hours.”


author: JUSTICE O’CONNOR

text:
    FLORAL CONSULTANTS, LTD., Plaintiff-Appellant, v. THE HANOVER INSURANCE COMPANY et al., Defendants-Appellees.
    First District (1st Division)
    No. 83—2632
    Opinion filed October 15, 1984.
    Cherry & Flynn, of Chicago (Peter Flynn and Bruce Rose, of counsel), for appellant.
    Paul J. Wisner, Ltd., and Garbutt and Jacobson Associates, both of Chicago (Richard D. Heytow and Edward Berman, of counsel), for appellees.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Plaintiff, Floral Consultants, Ltd., filed a class action suit against defendants, the Hanover Insurance Company (Hanover), Caifa Pacchini Insurance, Inc. (Calfa), and George J. Pistoresi (Pistoresi), seeking to enjoin defendants from the continued use of an alleged misleading sales brochure in the selling of Han-O-Flora insurance policies and to recover damages suffered by it and other members of its class as a result of their reliance on the brochure’s alleged fraudulent misrepresentations. The trial court granted defendants’ motion to dismiss for failure to state a claim upon which relief can be granted and allowed plaintiff 21 days within which to file an amended complaint. Subsequently, the trial court granted Hanover’s motion to strike certain counts of plaintiff’s verified amended complaint and dismissed Hanover as a defendant in the suit. Shortly thereafter, on a similar motion filed by Calfa and Pistoresi, the trial court struck the remaining counts of the amended complaint and dismissed the lawsuit. On appeal, plaintiff contends that the trial court erred in holding that: (1) as a matter of law, plaintiff’s possession of the actual insurance policy precluded his right to rely on the sales brochure and to predicate an action, for fraud or negligence on the brochure; (2) defendant’s sales brochure and insurance application were not misleading; and (3) Pistoresi was not acting as Hanover’s agent at the time he sold the insurance policy to plaintiff. A determination as to class certification was not made by the trial court and is not at issue on this appeal. For the reasons that follow, we affirm the trial court.

The facts giving rise to this action are undisputed. On March 16, 1981, Pistoresi, an insurance agent, met with Pizzo, president of plaintiff corporation, and presented Pizzo with a sales brochure and application for Han-O-Flora insurance, sold by Calfa and underwritten by Hanover. The brochure consisted of a two-page typewritten document which contained the following introductory language:

“COMPARE *** FOR IT’S YOUR ASSETS YOUR [sic] SEEKING TO PROTECT. WHEN YOU COMPARE INSURANCE COVERAGE, CONSIDER THE FOLLOWING:

1. The TERMS , and CONDITIONS for Coverage being provided.

2. The Quality of the Insurance Carrier underwriting Coverage, and its ability to perform in your behalf.

3. The Professional Expertise and Attitude of the Agent with whom you shall be dealing with [sic], considering whom the Agent represents.

4. Cost and Convenience of Payment.

THE FOLLOWING REPRESENTS A COMPARISON OF DIFFERENCES WORTH NOTING, THAT CAN AFFECT YOU, IN COMPARING THE INSURANCE PACKAGE PROGRAMS DESIGNED BY TWO INSURANCE CARRIERS FOR THE FLORA-CULTURE INDUSTRY.”

The brochure then presented a comparison between certain provisions of the Han-O-Flora policy and the Flor-a-Matic policy. The insurance application presented seven coverage categories, under each of which were subcategories with a corresponding space to indicate the dollar amount of coverage desired for each. Other than Pistoresi’s assurances to Pizzo that the sales brochure and application accurately depicted and described the Han-O-Flora coverage, Pistoresi made no additional verbal representations regarding the coverage. In reliance upon the brochure and application, Pizzo purchased the Han-O-Flora insurance coverage, effective for one year, commencing March 16, 1981. Approximately three months later, Pizzo received the actual insurance policy, which consisted of a 27-page “Special Businessowners Policy” and a one-page “Han-O-Flora Endorsement” which served to tailor the general coverage provisions to the more specialized needs of the floral industry. On pages four and five of the policy, a section entitled “PERILS AND EXCLUSIONS,” the headline for which was printed in large bold-face capital letters, set forth an indented, itemized outline of 16 exclusions, printed in capital letters. The exclusion pertinent to the facts at bar states:

“THE COMPANY SHALL NOT BE LIABLE FOR LOSS:
* * *
2. CAUSED BY OR RESULTING FROM POWER, HEATING OR COOLING FAILURE OR DUE TO CHANGE IN TEMPERATURE OR HUMIDITY UNLESS THE CHANGE RESULTS FROM PHYSICAL DAMAGE TO THE BUILDING OR TO EQUIPMENT CONTAINED THEREIN CAUSED BY A PERIL NOT OTHERWISE EXCLUDED; ***.”

On or about January 9, 1982, due to extreme cold weather conditions, plaintiff’s heating system malfunctioned, resulting in the destruction of plaintiff’s entire inventory of growing plants. Plaintiff’s timely claim for damages in the amount of $3,661.60 was denied by Hanover on the grounds that it fell within exclusion No. 2 of the policy. In filing its claim for injunctive and other relief, plaintiff argued that because the brochure did not contain the above exclusion, and the actual policy was not available at the time the application was executed, plaintiff was fraudulently induced to purchase a policy which it believed covered all perils to growing crops. In response, defendants argue that the brochure was never meant to be a synopsis of the policy, it was merely an invitation to compare specific differences between two competitors; that plaintiff never requested a copy of the actual policy prior to making its decision; and that, upon receiving the policy in June, plaintiff had ample time to review it and to seek additional coverage if necessary.

We first address plaintiff’s contention that the trial court erred in holding that, because it was in possession of the insurance policy for several months prior to the cold weather damage, it was bound, as a matter of law, to know the contents of the policy and could not now complain that the policy did not contain the type of coverage it assumed it to contain. Plaintiff argues that this “rigid rule” is not the law in Illinois and that such a law would be unwise and contrary to public policy. Further, plaintiff contends that the insurance policy was a complex 27-page document which was not only unavailable at the time the contract was executed, but which defendants knew plaintiff would not read, and if it were read, no one would understand it and, consequently, would rely solely on the brochure and the application for a description of the coverage.

The law in Illinois regarding coverage disputes under insurance policies follows two distinct paths. The first concerns insurer-insured cases in which one of the parties attempts to deny the effectiveness of a part of the policy. In this situation, a duty is imposed upon the insured to have read the policy and to have informed the insurer of any discrepancy prior to the time of filing a claim. (Hofeld v. Nationwide Life Insurance Co. (1975), 59 Ill. 2d 522, 527, 322 N.E.2d 454; Foster v. Crum & Forster Insurance Cos. (1976), 36 Ill. App. 3d 595, 598, 345 N.E.2d 49; County of Williamson v. Standard Accident Insurance Co. (1961), 32 Ill. App. 2d 363, 366, 178 N.E.2d 149.) The second line of cases concerns the insured-agent relationship where, in order to prevail on his claim, the insured must prove that the agent negligently performed his duty to procure a specified policy. In this situation, while the insured’s failure to read the policy may amount to contributory negligence, it does not operate as a bar to relief as a matter of law. Black v. Illinois Fair Plan Association (1980), 87 Ill. App. 3d 1106, 1111, 409 N.E.2d 549.

In the present case, plaintiff attempts to place its fact situation in the second line of cases- and to apply the Black court’s analysis to support his contention that because plaintiff had no absolute duty to read the policy, the trial court erred in dismissing the suit. In Black, the court addressed the question of the insurer's and agent’s liability for issuing a defective fire insurance policy. After purchasing a house located adjacent to property already owned and occupied by them as their residence, plaintiffs contacted the insurance broker in order to procure fire insurance on the new property. In filling out the application, the broker inserted plaintiff’s residence address rather than the new address, and plaintiffs signed the application without noticing the error. When plaintiffs later received the actual policy, they glanced at it, but again failed to notice the mistake. As a result of the error, plaintiff’s subsequent claim for damages resulting from a fire on his new property was denied. As these facts indicate, the situation presented in Black clearly follows the second line of cases wherein the agent has failed to follow the insured’s instructions to procure a specific policy. In these circumstances, the insured’s failure to detect the error does not serve to bar recovery as a matter of law. Instead, it becomes a question of contributory negligence for consideration in the determination of damages.

The facts in the present case are in distinct contrast to Black. Plaintiff does not allege that Pistoresi negligently performed his duty to procure a specific policy which it had requested. Pizzo ordered the Han-O-Flora policy on plaintiff’s behalf, and Pistoresi procured the Han-O-Flora policy, a copy of which plaintiff received seven months prior to the cold weather damage. The problem arises because plaintiff never took the time to read the policy. He just assumed it provided him with the coverage he wanted, based upon the brochure. It is especially noteworthy that plaintiff does not claim that the brochure contained untrue statements. Rather, it claims fraud by omission of a provision it now considers relevant. In light of the fact that the brochure was merely an invitation to compare “differences worth noting,” we do not find that the omission of the temperature-extreme exclusion was tantamount to fraudulent misrepresentation. Had Pizzo read the policy when he received it, he would have had no difficulty in ascertaining which perils were excluded. Contrary to plaintiff’s allegations, the policy succinctly sets forth the exclusions under the boldface heading “PERILS AND EXCLUSIONS” on page four of the policy. There is no attempt to hide the exclusions under superfluous rhetoric or to bury them at the back of the policy. Based on these facts, we conclude that the present case follows the first line of insurer-insured cases and, accordingly, find Foster v. Crum & Forster Insurance Cos. (1976), 36 Ill. App. 3d 595, 345 N.E.2d 49, dispositive of the issue.

In Foster, defendant sent plaintiffs a letter advising them of the new no-fault insurance law, explaining the provisions of Basic Personal Injury Protection (Basic) as well as an optional program, Excess Personal Injury Protection (Excess). In addition, the letter contained a three-page endorsement for Basic and a brief description of Excess. Based on the letter and brief description, plaintiffs decided to purchase the Excess coverage and, in doing so, named themselves and their son as the insureds. Shortly thereafter, plaintiffs received an endorsement for Excess which indicated that survivors’ benefits were limited to a surviving spouse or, if no spouse, to surviving minor children of decedent. Plaintiff renewed the policy once in its same form. Subsequent to the renewal, plaintiff’s son was killed in an automobile accident. Predicated upon the limitation provision in the endorsement, defendant refused to pay survivors’ benefits to decedent’s parents.

In their suit for payment of benefits, plaintiffs alleged that they purchased Excess in reliance upon the “broader language of coverage” contained in defendant’s original letter and that defendant should be bound by those representations. In its order granting defendant’s motion for summary judgment, the trial court stated, “ ‘The policy in this case was issued approximately two (2) years prior to the death of Russell Foster, and the plaintiff had possession of the original policy. Policies of insurance are contracts in writing, so that a party cannot be heard to say that he did not know what was in the contract.’ ” (36 Ill. App. 3d 595, 597.) In affirming the decision of the trial court, the appellate court acknowledged that if the accident had occurred in the effective period of the first endorsement, a serious question as to liability would have been presented because of the broader coverage offered in the original letter as opposed to that offered in the endorsement. However, because the policy was renewed twice before the accident and plaintiff had possession of the more restrictive endorsement at the time of each renewal, new contracts were formed at each renewal based upon the endorsement language. Thus, the court concluded that, “Although we recognize *** that laymen may not, as a common practice, read insurance policies, we cannot excuse plaintiffs from their burden of knowing the contents of insurance policies and bringing alleged discrepancies to the attention of the company.” 36 Ill. App. 3d 595, 598.

Admittedly, the facts in the present case differ from those in Foster to some extent, particularly with respect to the renewals. However, we find that there is sufficient similarity between the situations to provide a framework for our analysis. In its attempt to dismiss the applicability of Foster, plaintiff focuses on the court’s statement that if the accident had occurred prior to the renewal, the outcome may have been different. Plaintiff interprets this to mean that because there were no renewals in the present case, the outcome should be opposite that of Foster, where the appellate court affirmed the insurer’s denial of benefits. We disagree with plaintiff’s analysis for the primary reason that the initial documents presented by the insurer to the insured for the purpose of inducing purchase were markedly different in each case. In Foster, plaintiffs were presented with a letter and a description of the policy, i.e., offer to purchase. In our case, plaintiffs were presented with an invitation to compare “differences worth noting” between the two policies. Thus, the right to rely was present in the former and lacking in the latter. As the appellate court stated, the subsequent renewals in Foster negated reliance on the initial letter and placed the burden of knowledge of the policy contents on the insured. In the present case, there was no shift of reliance because the brochure was never meant to constitute an offer to purchase. Thus, the burden of knowledge was on the insured as soon as he had possession of the policy. The pivotal similarity between Foster and the present case lies in the fact that the insureds had possession of the actual policies in sufficient time to review them and to procure different or amended insurance coverage, if necessary. Illinois law clearly places a burden on insureds to know the contents of their policy when it is within their capabilities to do so. To hold otherwise would seriously undermine the sanctity of binding legal contracts. Accordingly, we concur with the trial court’s holding that, as a matter of law, plaintiff is charged with knowledge of the contents of his policy and had no right to rely on the sales brochure or the application.

Our decision regarding plaintiff’s right to rely obviates the need to discuss the remaining issues concerning alleged fraudulent misrepresentations in the brochure and the relationship between Calfa-Pistoresi and Pistoresi-Hanover. Therefore, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

McGLOON and CAMPBELL, JJ., concur.


author: JUSTICE McGLOON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. GARY ELLIS et al., Defendants-Appellees.
    First District (1st Division)
    Nos. 83—547, 83—723, 83—1629, 83—2192
    Opinion filed October 15, 1984.
    Neil F. Hartigan, Attorney General, of Springfield (Mark L. Rotert, Assistant Attorney General, of counsel), for the People.
    George S. Spataro, of Chicago, for appellee Udora Washington.
    Steven Clark and Elizabeth Clarke, both of State Appellate Defender’s Office, of Chicago, for appellee Elgena Saddler.
    James J. Doherty, Public Defender, of Chicago (John T. Moran, Assistant Public Defender, of counsel), for appellee Valerie Coleman.
    Louis B. Garippo, of Louis B. Garippo, Ltd., and Thomas A. Moore, both of Chicago, for other appellees.
   JUSTICE McGLOON

delivered the opinion of the court:

The Attorney General of the State of Illinois appeals from orders entered by the circuit court of Cook County dismissing felony theft indictments against 13 defendants. The appeals have been consolidated by this court because they concern a common issue: whether information protected from disclosure by statute can serve as the basis of a felony theft indictment.

We affirm.

Defendants were employed by the Chicago Transit Authority (CTA) prior to being laid off from their jobs in late 1981 and early 1982. After applying for benefits under the Unemployment Insurance Act (Act) (Ill. Rev. Stat. 1983, ch. 48, par. 300 et seq.), they began receiving benefit checks issued by the Illinois Department of Labor as unemployment compensation. In March 1982 the CTA reinstated defendants to their former status as paid employees. Thereafter, they continued to receive benefit checks. Upon receipt of each check, the recipient certified that he or she was unemployed. Each of the defendants received between $148 and $198 every two weeks for at least six weeks after reinstatement.

Proceedings were conducted before the Cook County grand jury in September and October of 1982. During these proceedings, testimony was heard concerning each defendant’s application for and receipt of unemployment benefits. The testimony was based on information supplied to the Department of Labor by the individual defendants pursuant to the Act. Indictments were returned charging each defendant with one count of felony theft over $300 in violation of section 16 — 1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1983, ch. 38, par. 16 — 1).

Motions to dismiss the various indictments were filed on behalf of the individual defendants. In each case, the trial court granted the defendants’ motions. The trial courts’ rulings were based on either a finding that the Act prohibits disclosure of information to the grand jury regarding unemployment compensation, or a finding that the benefit checks could not be aggregated to reach the statutory felony amount.

On appeal, the State contends that the legislature did not intend to cloak the fraudulent conduct alleged in the indictments with a privilege of confidentiality. It argues that the purpose of the privilege is to protect only honest disclosure of financial information and that the Act allows disclosure of fraudulent representations made to the Department of Labor. We disagree.

Resolution of the issues presented by this consolidated appeal depends on the proper interpretation of section 1900 of the Act (Ill. Rev. Stat. 1983, ch. 48, par. 640), which provides:

“Disclosure of information — Privileged communications. Except as is hereinafter provided in this Section, information obtained from any individual or employing unit pursuant to the administration of this Act shall be confidential and shall not be published or be open to public inspection, nor be used in any court in any action or proceeding pending therein, nor be admissible in evidence in any action or proceeding other than one arising out of the provisions of this Act. ***”

It is a primary rule of statutory construction that the intention of the legislature be given effect. (People v. Robinson (1982), 89 Ill. 2d 469, 433 N.E.2d 674.) The statutory language itself is the best source for determining the intent of the drafters. (People ex rel. Gibson v. Cannon (1976), 65 Ill. 2d 366, 357 N.E.2d 1180.) Where the language used is clear and unambiguous, the proper function of the judiciary is to enforce the law as enacted by the legislature. (People ex rel. Gibson v. Cannon (1976), 65 Ill. 2d 366, 357 N.E.2d 1180.) Finally, in construing an Illinois statute, decisions of other States construing similar statutes are entitled to respect and consideration. In re Marriage of Hunt (1979), 78 Ill. App. 3d 653, 397 N.E.2d 511.

The only Illinois case construing section 1900 is Smith v. Illinois Valley Ice Cream Co. (1959), 20 Ill. App. 2d 312, 156 N.E.2d 361. In Smith, this court refused to allow the use of information regarding plaintiffs receipt of unemployment compensation benefits as evidence in a civil suit. While our research has disclosed no other Illinois cases on point, the privileged nature of unemployment insurance records has been upheld in other jurisdictions. (Simpson v. Oil Transfer Corp. (N.D. N.Y. 1948), 75 F. Supp. 819; Andrews v. Cacchio (1942), 264 App. Div. 791, 35 N.Y.S.2d 259; Clegg v. Bon Temps, Ltd. (1982), 114 Misc. 2d 805, 452 N.Y.S.2d 825; Goggins v. Hoddes (D.C. App. 1970), 265 A.2d 302.) The New York statute, which is similar to the Illinois statute, has consistently been interpreted as an absolute proscription against disclosure, designed to insure confidentiality of the unemployment insurance system. Clegg v. Bon Temps, Ltd. (1982), 114 Misc. 2d 805, 452 N.Y.S.2d 825; Herald Co., Inc. v. Weisenberg (1981), 115 Misc. 2d 426, 454 N.Y.S.2d 354, rev’d on other grounds (1982), 89 App. Div. 2d 224, 455 N.Y.S.2d 413, affd (1983), 59 N.Y.2d 378, 452 N.E.2d 1190, 465 N.Y.S.2d 862; Breuer v. Bo-Craft Enterprises, Inc. (1957), 8 Misc. 2d 736, 170 N.Y.S.2d 631.

An argument analogous to appellant’s argument in the instant case was rejected by a Federal district court in Simpson v. Oil Transfer Corp. (N.D. N.Y. 1948), 75 F. Supp. 819. There, plaintiff argued that the privilege from disclosure is a limited privilege which is destroyed by actual malice. The court examined the public policy underlying enactment of the statute and concluded that information relating to unemployment benefits could not be used as evidence in collateral litigation. In so holding, the court reasoned that “[t]he Act may only be properly administered when interpreted so as to encourage full, free and honest reports from both employer and employee ***. Practical considerations, the public good, and the public policy as expressed and as interpreted in the decisions of state courts all lead to [this] conclusion ***.” 75 F. Supp. 819, 822.

We find the reasoning of these cases persuasive. The legislative mandate as expressed in the statute itself is clear and unambiguous. Information obtained in accordance with the Act shall not be used in any court in any action. (Ill. Rev. Stat. 1983, ch. 48, par. 640.) Section 1900 contains no exceptions allowing disclosure of fraudulent misrepresentations, and we will not infer such an exception.

In conclusion, we find that section 1900 of the Act was violated when testimony based on questionnaires completed by defendants and submitted to the Department of Labor was presented to the grand jury. The information is privileged and cannot be disclosed. Consequently, the dismissals of the indictments were proper. Having determined that the dismissals were proper, we need not address the other issues raised by the parties.

Judgment affirmed.

CAMPBELL and O’CONNOR, JJ., concur.


author: JUSTICE DOWNING

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LARRY EUGENE MOSS, Defendant-Appellant.
    First District (2nd Division)
    No. 83—2394
    Opinion filed October 23, 1984.

      James J. Doherty, Public Defender, of Chicago (Linda J. Seeley and Ronald P. Alwin, Assistant Public Defenders, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Timothy J. Joyce, and Kevin Sheehan, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE DOWNING

delivered the opinion of the court:

Defendant, Larry Eugene Moss, and two codefendants who are not parties to this appeal were charged by information with armed robbery (Ill. Rev. Stat. 1981, ch. 38, par. 18 — 2), unlawful restraint (Ill. Rev. Stat. 1981, ch. 38, par. 10 — 3), and armed violence (Ill. Rev. Stat. 1981, ch. 38, pars. 33A — 2, 10 — 3). Defendant was tried separately before a jury and was found guilty as charged. He was subsequently sentenced to concurrent terms of 13 years’ imprisonment for the armed robbery conviction and three years’ imprisonment for the unlawful restraint conviction. On appeal, defendant’s sole contention is that the cause should be remanded for a new trial because the trial court failed to allow him to excuse a juror with a peremptory challenge.

The record shows that at approximately 7 a.m. on January 23, 1983, Frank Curry, the owner of the Juneway Shell station located at 7740 North Sheridan Road in Chicago, entered the main building of his service station. After he unlocked the door and proceeded to the car wash area inside, he was surprised by a lone gunman wearing a rubberized Halloween mask which covered his entire face. The man pointed a sawed-off shotgun at Curry and threatened to kill him if he did not cooperate. The questions posed and directions given by this man led Curry to believe that he was familiar with the operation of the station; however, Curry did not recognize him to be a present or former employee.

The police were called to the scene by an employee who, upon arrival at work that morning, became aware that a robbery had taken place. The gunman, however, whose identity remained unknown, had already fled with approximately $500.

During the police investigation which followed, Caleb Colton, an employee who was on duty at the booth outside the gas pumps when the incident occurred, and a former employee, Perry Mack, who had been discharged the week before, were arrested and charged in connection with the crime. The investigation subsequently focused on locating a person known by the streetname of “Pac Man.” Colton’s fiancee told police that she was familiar with a person by that name and that he had visited her home during the previous holiday period wearing a scary blue mask. She later identified a photograph of the defendant as “Pac Man”; thereupon, he was arrested and charged with the crimes of unlawful restraint, armed robbery and armed violence.

Following his arrest, defendant gave police a written statement in which he not only admitted his participation in said offenses, but implicated Colton and Mack as well. His version of the robbery mirrored that given by the owner of the station. But he also added that he had thrown both the mask he was wearing and his gun into a garbage can as he fled.

Defendant’s pretrial motion for severance was granted, and he was tried separately by a jury while the charges against his codefendants were still pending. The record reveals that before jury selection began, the court advised opposing counsel that once a side accepted a juror and tendered that panel to the other side, that side could not come back and dismiss a juror who had previously been accepted. Despite defense counsel’s objection to this method of selection, the rule was put into effect.

After two panels of veniremen had been accepted and sworn, the State accepted a panel which included Ms. Terry Lach. The defense excused a venireman from this panel, accepted another and tendered this panel of four, including Ms. Lach, to the State. The State then excused one venireman, added another, then tendered the panel to the defense. At this point, defense counsel sought to excuse Ms. Lach. Defense counsel explained that since a different person had been added, he felt that the composition of the panel had changed and he wished to excuse Ms. Lach. The court denied his request, citing the method of procedure which had been established before jury selection began. The court then stated that it invoked this procedure under the present rules which placed jury selection in its discretion and for the purpose of avoiding “gamesmanship.” Counsel acknowledged the admonition but entered his continuing objection to the procedure instituted by the court.

Defendant was then tried by the jury, found guilty as charged and sentenced to a concurrent term of 13 years’ imprisonment. On appeal, defendant questions the propriety of the trial court’s ruling which, he asserts, deprived him of his right to exercise a peremptory challenge.

Prior to being amended in January 1980, section 115 — 4(f) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1977, ch. 38, par. 115 — 4(f)) provided in pertinent part that: “After examination by the court the jurors shall be examined, passed upon, accepted and tendered as a panel of 4 commencing with the State.” As amended, the statute provides that opposing counsel may examine, pass upon, accept and tender the jurors as provided by the Supreme Court Rules. (Ill. Rev. Stat. 1981, ch. 38, par. 115 — 4(f).) Supreme Court Rule 434 provides that:

“In criminal cases the parties shall pass upon and accept the jury in panels of four, commencing with the State, unless the court, in its discretion, directs otherwise.” (87 Ill. 2d R. 434, eff. April 1, 1982.)

Accordingly, this court has held that the trial court is now vested with discretion in determining the manner in which peremptory challenges may be exercised. People v. Robinson (1984), 121 Ill. App. 3d 1003, 1012, 460 N.E.2d 392, appeal denied (1984), 101 Ill. 2d 550.

Defendant asserts, however, that Rule 434 merely allows the trial court to establish a method of choosing jurors other than in panels of four, and says nothing about limiting the parties’ ability to exercise peremptory challenges in a given panel. Since the trial court did not elect to depart from the statutory procedure of selecting jurors in panels of four (Ill. Rev. Stat. 1981, ch. 78, pars. 21, 23), it is now maintained that the court remained governed by the procedures previously approved, including the general rule that until both sides have accepted a panel of four jurors, either side may exercise a peremptory challenge to eliminate a juror previously tendered to the other side. People v. Murray (1966), 73 Ill. App. 2d 376, 220 N.E.2d 84, relying on People v. Schanda (1933), 352 Ill. 36, 185 N.E. 183, and People v. Gray (1911), 251 Ill. 431, 96 N.E. 268.

Based on the interpretation of Rule 434 set forth in Robinson, we initially find that the trial court had discretionary power to determine the method in which peremptory challenges would be exercised. We do not believe that the court’s decision to select the jurors in panels of four alters this determination. Thus, the question we must resolve is whether the court abused its discretion and unduly restricted defendant’s right to exercise a peremptory challenge by the procedure invoked.

Under the former statutorily mandated procedure for selecting a jury, the rule developed that once both sides accepted a panel of jurors, it was too late for either side to exercise a peremptory challenge to any member of that panel previously tendered to the other side. This held true unless, of course, the party seeking to challenge a specific juror demonstrated the reception of new information which, if previously known, would have prompted an exercise of a peremptory challenge. (People v. Robinson (1984), 121 Ill. App. 3d 1003, 1013, citing People v. Scheidt (1983), 113 Ill. App. 3d 632, 447 N.E.2d 536, appeal denied (1983), 96 Ill. 2d 548.) In the instant case, defense counsel did not predicate his challenge to the previously accepted juror on any new information; rather, he merely stated that he was seeking to excuse her because he felt that the composition of the panel had changed.

During voir dire, Ms. .Lach and the other prospective jurors were questioned extensively by the court. The record shows that Ms. Lach did not express any hesitation about sitting as a juror, and there is nothing in her responses which would indicate bias on her part or call into question her ability to act as an impartial juror. (See People v. Villa (1981), 93 Ill. App. 3d 196, 200-01, 416 N.E.2d 1226.) Notwithstanding this appraisal, it is clear that counsel could have excused her with a peremptory challenge at this time, but chose not do so. Instead, he accepted her and tendered the panel to the State. When the State returned the panel with a new member, counsel did not challenge the person who, when added, apparently tipped the balance in counsel’s estimation; rather, he sought to excuse the previously-accepted Ms. Lach, thereby running afoul of the rule invoked by the court. In denying his request to exercise a peremptory challenge to Ms. Lach at this time, the court stated that it was acting under the present rules “in spite of the older case of People v. Gray,” and it reminded counsel that both sides had been forewarned. Counsel acknowledged his awareness of the rule but once again objected to it.

It is our opinion that the trial judge here acted in accordance with his discretionary power by invoking a proper procedure for the exercise of peremptory challenges in the selection of the jury and advising the parties of such procedure before the process began. Moreover, the record indicates that the procedure did not unduly restrict the exercise of these challenges. We further stress that defendant did not predicate his challenge on any newly discovered information. Therefore, under Robinson, we find no abuse of discretion in the trial court’s denial of defense counsel’s peremptory challenge.

For the reasons set out herein, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

STAMOS and BERLIN, JJ., concur.


author: JUSTICE JOHNSON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. HARRY R. GOSSAGE et al., Defendants-Appellees.
    First District (4th Division)
    Nos. 83—317, 83—318
    Opinion filed October 18, 1984.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Jane E. Liechty, and Pamela Martin, Assistant State’s Attorneys, of counsel), for the People.
    Julius Lucius Echeles, of Chicago, for appellees.
   JUSTICE JOHNSON

delivered the opinion of the court:

Plaintiff appeals the dismissal of an information charging defendants, Harry R. Gossage and David Gossage, also known as David Glosson, with possession of cannabis. The sole issue presented for review is whether the trial court properly dismissed the information on the ground that the State was estopped from prosecuting defendants where the latter agreed to participate in a drug abuse prevention program in exchange for. the State’s Attorney’s agreement not to prosecute.

We reverse.

On October 1, 1981, Chicago police officer Thomas Zievencoe, accompanied by five other policemen, went to the apartment of David Glosson with a warrant for his arrest based on battery. Glosson opened the door; the police announced their office, arrested Glosson and advised him of his constitutional rights. The officers observed a quantity of crushed green plant on a table. They asked to whom the plant belonged, and defendants replied that it belonged to both of them. Gossage was then placed under arrest and advised of his rights. When Officer Zievencoe accompanied Glosson to the kitchen to get his shirt, he (Zievencoe) observed more marijuana.

Defendants disputed Officer Zievencoe’s account of their arrests. According to Glosson, when Gossage turned the knob to open the door, the police pushed their way into the apartment, immediately handcuffed them, and began to search the premises without their consent. The police did not have a search warrant and did not announce their office. There was no crushed green plant on the table or in the kitchen sink. The police found the crushed green plant in the refrigerator in the vegetable bin. Gossage testified that a marijuana cigarette was on the table.

Assistant State’s Attorney William Merritt testified that he interviewed, defendants to see whether they were eligible to participate in the State’s Attorney’s Program for the prevention of Drug Abuse (the Program). It is a pretrial diversion program for first offenders under age 30 charged with possessing, in the case of marijuana, 100 or fewer grams of the substance. A defendant found eligible for the Program may move for and usually receives a three-month continuance. During this period, the defendant is required to attend five classes on Saturday mornings. Upon completion of the Program, the State’s Attorney would move to nol-pros the charge pending against a defendant.

Merritt asked defendants whether the amount of marijuana they were charged with possessing was 100 grams or less; they replied in the affirmative. Ultimately, a laboratory report revealed that the amount of marijuana in defendants’ possession was 748.2 grams. Defendants claimed that they were never individually interviewed by Merritt. The arrest report for defendants indicated that a “large quantity” of marijuana was discovered in their possession. Merritt admitted that he did not inspect this report. The complaint for preliminary examination did not indicate the amount of grams seized.

At a hearing on October 2, 1981, an assistant State’s Attorney reported to the trial court that both defendants qualified for the Program. The trial judge asked defendants whether they wanted to participate and they agreed. Neither defendant was represented by counsel at the hearing. Both defendants signed (1) an agreement to participate in the Program; (2) an acknowledgement of waiver of notice and waiver of summons to appear; and (3) defendants’ motion for continuance, waiver of notice, and waiver of summons to appear.

In a letter dated October 6, 1981, addressed to his employer, Gossage stated that he did not know the amount of marijuana found in his possession, but that at the time of his arrest police told him it was two or three pounds.

When assistant State’s Attorney Merritt discovered that the amount of marijuana defendants were charged with possessing exceeded 100 grams, he notified them that he would withdraw the offer of participation in the Program.

At a hearing on January 2, 1982, the trial court denied defendants’ motion to suppress evidence. The case was continued several times until January 4, 1983, when the trial court conducted a hearing on defendants’ motion to dismiss, on the basis of estoppel, an information charging them with possession of marijuana (Ill. Rev. Stat. 1979, ch. 56V2, par. 704(e)). The trial judge sustained defendants’ motion, holding that they gave up rights when they accepted the offer to attend the Program and that the State was estopped from further prosecution. The State appeals.

The State makes several arguments that the trial court erred in dismissing the information. First, it contends that the advancement of the charge against defendants was a proper exercise of its authority to initiate and manage criminal litigation. Such authority allowed it to create the Program and, once created, allowed it to advance the cases of defendants admitte°d but later found ineligible. Next, the State claims that defendants were not prejudiced by the advance of the charge against them and gave up no rights in agreeing to participate in the Program. The State did not mislead defendants; rather, defendants misrepresented the amount of marijuana confiscated.

Defendants advance several arguments in favor of the proposition that the information charging them with possession of marijuana was properly dismissed. First, they argue that it is unconscionable to place upon a defendant, unrepresented by counsel, the burden of determining his own eligibility for the Program. Secondly, they contend that the common practice of charging a defendant with possession of an amount of contraband less than the amount actually confiscated negates the State’s claim that defendants willfully misrepresented the amount of marijuana they were charged with possessing. Thirdly, defendants claim that they gave up substantial rights upon entering the Program in reliance upon the State’s representations — the right to counsel with respect to making the decision whether to enter the Program and the right to a speedy trial during the three-month continuance granted to participants of the Program.

Finally, defendants contend that the State is chargeable with knowledge of the amount of marijuana possessed by defendants. When defendants were invited into the Program, the State had actual or constructive knowledge that a police report characterized the quantity of marijuana seized as “large” and that in a complaint for preliminary examination, dated October 2, 1981, there was a blank space next to the word “grams” which would have given the amount of marijuana. In addition, the word, “felony” appeared in capital letters in the upper right-hand corner of the complaint.

In our opinion, the trial court erred in dismissing the information against defendants. The State’s Attorney has always enjoyed a wide discretion in both the initiation and the management of criminal litigation. That discretion includes the decision whether to initiate any prosecution at all, as well as to choose which of several charges shall be brought. (People ex rel. Carey v. Cousins (1979), 77 Ill. 2d 531, 539, 397 N.E.2d 809, 814.) The decision to nol-pros lies within the nearly unfettered discretion of the State’s Attorney. People v. Sanders (1980), 86 Ill. App. 3d 457, 467, 407 N.E.2d 951, 958.

The State’s Attorney’s Program represents an exercise of his discretion to offer to nol-pros a case. Implicit in the exercise of such discretion is his ability to withdraw an offer when, in his judgment, such action is appropriate. In the instant case, when the assistant State’s Attorney later determined that defendants were in fact ineligible for the Program because they were charged with possessing more than 100 grams of marijuana, he properly exercised his discretion in withdrawing the offer of the Program.

We find meritless defendants’ contentions that they gave up substantial rights upon entering the Program. Defendants cite no authority for the proposition that they were entitled to assistance of counsel in deciding whether they would enter a program that could result in the dismissal of charges against them. They were not prejudiced by signing the agreement to enter the Program. They simply agreed to enter the Program; to attend all sessions; that violation of any law during the term of the Program would disqualify them; that prior to discharge from the Program, they would reveal any additional arrests; and that their understanding was that satisfactory completion of the Program would result in dismissal of the charge.

As a condition of the Program, defendants waived the right to a speedy trial during the three-month period. However, this did not constitute a waiver of the right to a speedy trial on the charges against them. The record contains no formal demand by them for a trial. Moreover, between February 1982 and January 1983, defendants requested and received many continuances. In our opinion, defendants gave up no substantial' rights when they agreed to enter the Program.

It necessarily follows that since defendants waived no substantial rights and were not prejudiced, the State is not estopped from prosecuting them. Further, estoppel against the public is little favored; it is found only in rare and unusual circumstances, and it will not be applied to defeat the effective operation of a policy adopted to protect the public. People ex rel. Fahner v. Colorado City Lot Owners & Taxpayers Association (1982), 108 Ill. App. 3d 266, 279, 438 N.E.2d 1273, 1282.

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

Reversed.

JIGANTI and RQMITI, JJ., concur.