author: JUSTICE PERLIN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ADAM CUKOJEVIC, Defendant-Appellant.
    First District (2nd Division)
    No. 80-2258
    Opinion filed December 29, 1981.

      Michael D. Monico, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Ruth Stem Geis, and John M. Steed, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE PERLIN

delivered the opinion of the court:

Defendant, Adam Cukojevic, was charged with one count of armed robbery and one count of deviate sexual assault. (Ill. Rev. Stat. 1977, ch. 38, pars. 18—2 and 11—3.) After a jury trial, defendant was found guilty as charged. The court entered judgment on each verdict and sentenced defendant to eight years in the Dlinois Department of Corrections.

On appeal defendant contends that: (1) the State did not prove beyond a reasonable doubt defendant’s guilt of armed robbery and deviate sexual assault; (2) the trial court erred in denying defendant’s motion to suppress statements which he purportedly made while in police custody; and (3) comments made by the prosecutor and the trial court during closing argument were so prejudicial as to deny defendant his due process right to a fair trial.

For the reasons set forth herein, we affirm the convictions of defendant.

At trial the victim testified to the events that occurred on Sunday, October 28,1979. The victim stated that at approximately 5:30 p.m. on the day in question she was standing in a laundromat located on the corner of Montrose and Wolcott in Chicago, Illinois. She was 20 years old at the time and resided in an apartment at 4313 North Wolcott, approximately one-half block from the laundromat.

The victim noticed that there was a man sitting in a car parked on Wolcott, directly outside the laundromat, watching her. She left the laundromat after making a phone call and began walking south on Wolcott toward her apartment. She noticed that the same man who had been watching her earlier was now beckoning to her from his car. This man was later identified by her as defendant.

Defendant motioned to the victim to walk over to his car. She approached the car but remained on the sidewalk. Defendant remained in his car. He asked her if she would like to “have a drink with him,” but she declined. He then asked her if she wanted a ride home and she again declined.

When the victim turned to walk away, defendant suddenly walked up behind her and “grabbed” her arm. Holding a broken bottle in one hand, he forced her into his car. She tried to pull away, but defendant’s grip on her was too strong. Although she was “very scared,” she did not scream because she saw that there was no one else on the street.

Once inside the car, defendant told the victim “not to try anything stupid or scream.” She reached for the door handle on the passenger side of the car and discovered that it was locked. Defendant again warned her, “don’t try to get out of the car, don’t be stupid.”

Defendant drove toward the lakefront. While in the car, the victim looked for a “police car or someone who would definitely help her.” She did not see any police officers. Defendant repeatedly warned her not to scream or attempt to escape.

Near the lakefront on Wilson Drive defendant drove toward a bridge. Several men were standing on the other side of the bridge and when defendant saw these men he made a “U-turn” in his car and drove into a parking lot on Marine Drive. The area was well lit. Approximately a minute later defendant drove out of the parking lot. Throughout this time defendant was holding the broken bottle.

Defendant drove west and pulled into another parking lot. This lot was dark and secluded, and he parked there. Defendant then put his right arm around the victim’s shoulder. He held the broken bottle in his right hand “right next” to the victim’s throat and tried to kiss her. She resisted and tried to push him away, but he increased the pressure of the bottle against her throat. She did not suffer any scratches or bruises.

The victim was shaking. Defendant warned her not to scream. She begged him to take the bottle away from her throat, and he put the bottle in his left hand. He then began to caress her and ordered her to undress. He told her to touch his penis. When she refused his command, he grabbed her hand and placed it there. She told him she could not have intercourse with him because she was menstruating. Defendant said he “didn’t care.”

Defendant then ordered the victim to “suck him.” She resisted and he forced her to perform fellatio upon him. Throughout this incident defendant held the broken bottle in his left hand.

At this point another person drove into the alley behind the parking lot. Defendant told the victim to “leave her purse” and “get out of his car.” She told him that she needed her identification and her keys. He told her to “give him [her] money and to get out of his car.” She gave him $17.

The victim then exited defendant’s car, and as he was driving away she observed his license plate number. (At trial defendant admitted to owning the plate number that the victim had observed.) The victim then ran to a man who was parking his car nearby. When she requested help from him, he took her into a building in which the desk clerk phoned the police.

Officer Russell Mueller, a Chicago police officer assigned to the 20th District, responded to the call reporting the robbery and assault. After arriving at the scene, Mueller conversed with the victim. At trial Mueller testified that he believed that at the time of their initial conversation the victim made a statement to the effect that defendant had produced a broken bottle and ordered her into his car. The victim also told Mueller that she was the victim of a deviate sexual assault and a robbery.

Defendant testified to the following: On October 28, 1979, at approximately 5 p.m., he was alone in his car driving eastbound on Montrose Avenue toward Lake Michigan. At that time he noticed the complainant standing near a laundromat. He “slowed down” and he and the complainant exchanged glances. They had a brief conversation during which she inquired about purchasing marijuana. Defendant agreed to drive the complainant to the lakefront where they could purchase the drug. While driving to the lakefront, they talked, and the complainant told defendant that she had a boyfriend who was a musician.

When they reached the lakefront, the complainant purchased from a group of male Latinos four marijuana cigarettes. They smoked several of the cigarettes and then drove to a parking lot near the lakefront where they continued-smoking. While parked in defendant’s car, defendant and the complainant began kissing and fondling each other. They then had oral sex.

Shortly thereafter defendant told complainant that he had recently moved from his parents’ home and that he had no money. The complainant became angry, swore at defendant and “threw” money at him. She then exited defendant’s car, “slammed” the door and left the scene.

Defendant was arrested on January 13, 1980. Assistant State’s Attorney Ira Raphaelson testified that while in police custody following his arrest, defendant admitted that he had robbed the complainant.

The jury found defendant guilty of one count of armed robbery and one count of deviate sexual assault.

I

Defendant contends that he was not proved guilty beyond a reasonable doubt because the victim’s testimony was rendered incredible by her failure to attempt an escape or to cry out for help, and by the fact that she did not suffer any cuts or bruises. Defendant argues that the victim had the opportunity to attempt an escape or to cry out for help when defendant had to stop at several busy intersections on the way to the lakefront. Defendant also asserts that the absence of physical injury to the victim underscores the defendant’s testimony that no act of armed robbery or deviate sexual assault was perpetrated by force and against the will of the victim.

The State maintains that the clear and convincing testimony of the victim, corroborated by defendant’s admission that he robbed her, clearly establishes that defendant was proved guilty of armed robbery and deviate seuxal assault.

It is the province of the jury to weigh the evidence, judge the credibility of the witnesses and determine the facts. A court of review “will not set aside a jury’s verdict of guilty unless the evidence is so palpably contrary to the verdict or so unreasonable, improbable or unsatisfactory as to cause a reasonable doubt as to the guilt of the accused.” People v. Sumner (1969), 43 Ill. 2d 228, 232, 252 N.E.2d 534; People v. Payton (1980), 84 Ill. App. 3d 181, 184, 405 N.E.2d 18.

A material element of the offense of deviate sexual assault (Ill. Rev. Stat. 1977, ch. 38, par. 11—3) is force or the threat of force. The nature of the force or threat of force which must be proved in a deviate sexual assault case is the same as that for rape. (People v. Anderson (1979), 20 Ill. App. 3d 840, 314 N.E.2d 651; People v. Taylor (1971), 48 Ill. 2d 91, 268 N.E.2d 865.) In rape cases “[t]here is no definite standard fixing the amount of force required and each case must be considered on its own facts.” (Emphasis added.) (People v. Smith (1965), 32 Ill. 2d 88, 92, 203 N.E.2d 879.) Likewise, in determining the degree of resistance required of a victim of deviate sexual assault, each case must be considered on its own facts. (People v. Bendig (1968), 91 Ill. App. 2d 337, 235 N.E.2d 284.) Useless or foolhardy resistance is not necessary. (People v. Green (1976), 38 Ill. App. 3d 289, 347 N.E.2d 224; People v. Robinson (1977), 52 Ill. App. 3d 658, 662, 367 N.E.2d 1034, aff'd (1978), 73 Ill. 2d 192, 383 N.E.2d 164.) There is no duty to cry out for aid where the defendant has a deadly weapon. People v. Garriott (1974), 20 Ill. App. 3d 994, 1000, 313 N.E.2d 189.

The testimony of the victim in the case at bar was clear and convincing. It has been held that the testimony of a single credible witness is sufficient to support a conviction for a sexual offense, even though such testimony conflicts with the testimony of the accused. People v. Sweeney (1977), 46 Ill. App. 3d 858, 865, 361 N.E.2d 344.

The facts in the instant case demonstrate that the victim was clearly in a disadvantageous position so that an attempt to escape or a cry for help would not only have been futile but foolhardy. Such action is not required. Under the circumstances, where the defendant apparently was brandishing a deadly weapon, the victim’s actions in not attempting to cry out or escape do not belie her testimony as to how the incident occurred. Nor does the fact that she sustained no physical injury imply that she consented to defendant’s actions. See People v. Jones (1976), 40 Ill. App. 3d 850, 858, 353 N.E.2d 375; People v. Ware (1973), 11 Ill. App. 3d 697, 701, 297 N.E.2d 289.

In addition, the testimony of the victim was corroborated by the fact that she phoned the police within minutes after the defendant allegedly abused and robbed her. Such “prompt complaint” is a well-recognized form of corroboration in cases involving sexual attacks. People v. DeFrates (1946), 395 Ill. 439, 70 N.E.2d 591, cert. denied (1947), 331 U.S. 811, 91 L. Ed. 1831, 67 S. Ct. 1201; People v. Walsh (1980), 80 Ill. App. 3d 754, 765, 400 N.E.2d 587.

From the clear testimony of the victim, coupled with defendant’s admission to Assistant State’s Attorney Raphaelson that he robbed her, we conclude that the evidence is not so palpably contrary to the verdict, nor so unreasonable, improbable or unsatisfactory as to raise a reasonable doubt as to the guilt of defendant.

II

Defendant next contends that the trial court erred in denying his motion to suppress statements which were purportedly made by him while he was in police custody after his arrest. The statement allegedly made by defendant and admitted into evidence at trial was a confession to the armed robbery charge: “I did not stick a bottle to her throat and force her to suck me off. I just robbed her.”

The day before trial defendant filed a motion to suppress the confession. The prosecutor moved to strike defendant’s motion because in it defendant had not alleged any specific acts by which the State had coerced such confession.

The trial court allowed defendant to amend his motion to suppress. In such amendment defendant stated that he was physically coerced into confessing because he was handcuffed for an extended period of time, but he did not name any persons who allegedly coerced him.

At the pretrial hearing on the suppression motion the State presented three witnesses: Officer Raymond Krull, Investigator Robert Richards and Assistant State’s Attorney Ira Raphaelson. Officer Krull and his partner, Officer Edward Stromberg, were the arresting officers. They transported the defendant from his home to the Area 6 police station. Officer Krull testified that the only conversation he and Officer Stromberg had with defendant was to inform him of their destination. They never struck or abused defendant. When they arrived at Area 6, they took defendant to a second floor interrogation room and handcuffed him to a wall. Several minutes later Investigator Richards arrived. He advised defendant of his constitutional rights.

Investigator Richards testified that while he was in the interrogation room, no one struck the defendant or promised defendant leniency if he would confess. Richards stated that he was not present when defendant made his alleged confession to Assistant State’s Attorney Raphaelson and Investigator Kay Lewis.

Assistant State’s Attorney Raphaelson testified that defendant was not handcuffed when Raphaelson spoke to him. Raphaelson advised defendant of his constitutional rights. Defendant did not complain of any physical deprivation. Raphaelson made no promises to defendant.

Raphaelson stated that Investigator Lewis, the police officer who was present during defendant’s alleged confession, was not in the interrogation room when Raphaelson arrived. Lewis entered the room with Raphaelson and left with him at the conclusion of the interview with defendant. It was during this interview that Raphaelson heard defendant say “ * * * I just robbed her.”

Defendant, at the pretrial hearing, sought to call Investigator Lewis to testify. The trial court stated that it had been informed that Lewis was at home with a broken leg, and that her doctor had specifically ordered that she could not be moved. The trial court noted that her police report and all prior testimony relating to such report were contained in documents which defendant had in his possession, and those documents had been received in evidence on defendant’s motion.

Defendant made no further arguments and produced no witnesses in his own behalf. The trial court denied defendant’s motion to suppress his confession.

In a pretrial hearing on a motion to suppress, the credibility of the State’s witnesses and the weight to be given to their testimony are questions for the trial court, and a court of review will not disturb the trial court’s determination as to the voluntariness of defendant’s statement absent a showing that such determination is contrary to the manifest weight of the evidence. People v. Slaughter (1978), 59 Ill. App. 3d 159, 161-62, 376 N.E.2d 33.

Whether a statement is voluntarily given depends upon the totality of the surrounding circumstances. The test is whether it has been made freely, voluntarily and without compulsion or inducement of any sort or whether the defendant’s will was overcome at the time he confessed. (People v. Prim (1972), 53 Ill. 2d 62, 70, 289 N.E.2d 601.) The voluntariness of a confession must be proven by a preponderance of the evidence. (Lego v. Twomey (1972), 404 U.S. 477, 30 L. Ed. 2d 618, 92 S. Ct. 619; People v. Jackson (1968), 41 Ill. 2d 102, 109, 242 N.E.2d 160; People v. Sizemore (1981), 97 Ill. App. 3d 1088, 1096, 423 N.E.2d 1264.) When the State has made a prima facie showing that a confession was voluntary, the burden shifts to the defense to produce evidence that the confession was involuntary and reverts back to the State only upon such production by the defense. People v. Slaughter (1978), 59 Ill. App. 3d 159, 161-62, 376 N.E.2d 33.

As a general rule, where the voluntary nature of a confession is in issue, the State must produce all material witnesses connected with the taking of the statement or explain their absence. People v. Armstrong (1972), 51 Ill. 2d 471, 476, 282 N.E.2d 712.

In the case at bar the State presented three witnesses who testified that defendant was not coerced into confessing to the armed robbery. All material witnesses to the confession were produced except for Investigator Lewis whose absence was adequately explained. While it may have been preferable to have had the benefit of Lewis’ testimony, its absence in the circumstances of this case is not reversible error. Compare In re Lamb (1975), 61 Ill. 2d 383, 390-92, 366 N.E.2d 753, cert. denied (1976), 425 U.S. 938, 48 L. Ed. 2d 180, 96 S. Ct. 1672.

The only specific contention defendant made concerning coercion was that he had been handcuffed for an extended period of time. This claim was refuted by Assistant State’s Attorney Raphaelson. Further, it has been held that since at certain times it is necessary to leave a defendant alone, the use of handcuffs is not coercive per se. See People v. Slaughter (1978), 59 Ill. App. 3d 159, 163, 376 N.E.2d 33.

We conclude that the State made a prima facie showing of the voluntariness of defendant’s confession. Defendant produced no evidence to the contrary. The trial court’s determination that defendant’s confession was voluntary was not contrary to the manifest weight of the evidence, and its denial of defendant’s motion to suppress such confession was not error.

Ill

Defendant’s final contention is that comments made by the prosecutor and the trial court during closing argument were so prejudicial as to deny defendant his due process right to a fair trial. The prejudicial remarks allegedly made by the prosecutor were not specified in defendant’s motion for a new trial. The State has correctly observed that a defendant’s failure to specify the alleged errors in his motion for a new trial would permit this court to consider the issue waived. People v. Pickett (1973), 54 Ill. 2d 280, 296 N.E.2d 856.

We note, however, that the central purpose of the waiver doctrine is to allow the trial court an opportunity to correct any alleged error. (People v. Lain (1980), 80 Ill. App. 3d 1136, 1137, 400 N.E.2d 1033.) In the instant case defendant’s allegations of error were brought to the attention of the trial court by defendant’s objections at trial. The trial court was thus made aware of the particular remarks of the prosecutor which defendant contends were improper. Defendant’s claims of error were in this manner noted, and this court will consider the merits of defendant’s claims. See People v. Nunez (1974), 24 Ill. App. 3d 163, 320 N.E.2d 462; People v. Gray (1977), 47 Ill. App. 3d 1026, 1032, 365 N.E.2d 501.

Defendant asserts that the prosecutor twice made improper remarks to the effect that defendant was lying when he testified. At one point during closing argument the prosecutor stated:

“When [the defendant] took that stand and testified to you under oath, he committed perjury.”

Defendant asserts that by this remark the prosecutor improperly gave his personal opinion that defendant was lying and accused defendant of a crime (perjury) other than that for which he was on trial.

The State maintains that any error in the comment was cured by defendant’s prompt objection and the trial court’s instruction to the jury to disregard such comment. In response to defendant’s objection after a second remark that defendant was “lying,” the trial court stated: “I believe that is a fair comment. Overruled.”

It is well settled that, although it is improper comment for the prosecutor to call the defendant a “liar,” it is not prejudicial error if such characterizations were based upon evidence or were a reasonable inference which could be drawn from that evidence. People v. Smith (1977), 52 Ill. App. 3d 583, 590, 367 N.E.2d 756, cert. denied (1978), 436 U.S. 961, 57 L. Ed. 2d 1127, 98 S. Ct. 3079: People v. Dotson (1981), 99 Ill. App. 3d 117, 424 N.E.2d 1319.

In the instant case the testimony of the victim was in direct conflict with that of defendant. It is permissible for a prosecutor to comment upon facts and circumstances introduced into evidence at trial and upon legitimate inferences drawn therefrom. Moreover, the trial court’s remark that “I believe that is fair comment” (that defendant lied) was an explanatory comment of the court’s basis for its ruling on defendant’s objection. As such, the court’s comment did not unduly prejudice defendant. See People v. Price (1979), 76 Ill. App. 3d 613, 628, 394 N.E.2d 1256; People v. Rojas (1966), 68 Ill. App. 2d 171, 177, 215 N.E.2d 140.

Defendant further argues that the prosecutor improperly urged the jury that:

“The buck stops right here. * * * You people of the community have to do something about this if you want this type of crime to stop.”

It is not improper for the prosecutor to “dwell on the evil results of crime and urge a fearless administration of the law.” (People v. Wright (1963), 27 Ill. 2d 497, 500-01, 190 N.E.2d 287.) Similar remarks have been found to be insufficient to require a reversal if based on the evidence. People v. Rehhein (1977), 54 Ill. App. 3d 93, 101, 369 N.E.2d 190, aff'd (1978), 74 Ill. 2d 435, 386 N.E.2d 39.

Defendant complains of several other comments made by the prosecutor in closing argument. We have examined these comments and note that in each instance after the prosecutor made the remarks complained of, the trial court sustained defendant’s objections and instructed the jury to disregard such comments. While these measures may not always cure such comments, we do not think that here the prosecutor’s comments, viewed in their proper perspective, were so prejudicial as to constitute a material factor in defendant’s conviction. See People v. Carlson (1980), 79 Ill. 2d 564, 577, 404 N.E.2d 233; People v. Knowles (1979), 76 Ill. App. 3d 1004, 1011, 395 N.E.2d 706.

Defendant also contends that the trial court during defense counsel’s closing argument made remarks in support of the prosecutor’s case which prejudiced the defendant. Defense counsel had stated:

“Adam [defendant] testified in this case. He didn’t have to * * °. Was he impeached at all? * * * The State has the right to call people in rebuttal. Did they call anybody to the stand to say that anything Adam said was not true?”

Following an objection by the prosecutor to this statement by defense counsel, the trial court remarked:

“The State did produce the complaining witness who told a story inconsistent with the defendant’s and there was no other witness present at the time of the occurrence, so that is an improper argument.”

Defendant argues that this statement by the trial court was “wrong” because rebuttal witnesses did in fact exist. Defendant does not, however, identify any of these purported witnesses, and the record does not indicate the presence of any such witness to the occurrence. Thus it is clear that the remark of the trial court, heretofore quoted, was in response to defense counsel’s closing argument and explained the court’s ruling on the prosecutor’s objection.

Defendant further contends that the trial court during the prosecutor’s rebuttal made improper comments regarding the testimony of Investigator Richards. Richards had testified that he went to defendant’s home approximately one week before defendant was arrested. While at defendant’s home, Richards spoke with defendant’s grandparents and asked them if defendant resided at home and if defendant was in fact at home at that time.

In closing argument defense counsel had argued that the fact that defendant was residing at home indicated defendant’s innocence:

“* 0 * Just as it is the actions of an innocent man to drive with his license plates, to register them to his home, to live at his home. After Richards says he’s been there to tell his parents that they are looking for him, that’s what Richards said. He went there and talked to his grandparents and he told them that he was looking for him, and what does he do? Adam is living there. That’s what Adam is doing. That’s the conduct of an innocent man. Not a man who committed a crime.” (Emphasis added.)

In rebuttal the prosecutor argued:

“Mr. Monico then discussed the 990 actions of an innocent man. He said the police had been to Adam’s house a week prior, and Adam is an innocent man. The actions of an innocent man. If he was so innocent [why didn’t he] say hi, are you looking for me—?”
DEFENDANT: Objection.
THE COURT: That’s invited comment. 9 9 9 He said he told him we’re looking for him.” (Emphasis added.)

The court overruled defendant’s objection.

In this instance the trial court was merely restating what defendant had already told the jury regarding Richards’ testimony. The court did not express a personal opinion concerning the credibility of such testimony, and its remarks did not indicate any prejudice to defendant. See People v. Hine (1980), 88 Ill. App. 3d 671, 679, 410 N.E.2d 1017.

Moreover, the court instructed the jury that through its rulings the court was expressing no opinion as to what the facts were, and that it was the jury’s duty to determine the facts. (Illinois Pattern Jury Instructions, Criminal, No. 1.01 (2d ed. 1968).) Such an instruction sufficiently alleviates any prejudice that the trial court’s comments may have caused. See People v. Pittman (1973), 55 Ill. 2d 39, 61, 302 N.E.2d 7; People v. Price (1979), 76 Ill. App. 3d 613, 628, 394 N.E.2d 1256.

For improper comments by the prosecutor or the trial court to be sufficient to merit reversal they must be of a substantial magnitude when viewed in light of the entire record and argument. (People v. Martinez (1977), 45 Ill. App. 3d 939, 943, 360 N.E.2d 495; People v. Odum (1972), 3 Ill. App. 3d 538, 279 N.E.2d 12.) Improper remarks do not constitute reversible error unless they result in substantial prejudice to the accused. (People v. Nilsson (1970), 44 Ill. 2d 244, 248, 255 N.E.2d 432.) Where the improper comments do not constitute a material factor in the conviction or are of such a minor character that prejudice to the defendant is not their probable result, the verdict will not be disturbed. People v. Martinez (1977), 45 Ill. App. 3d 939, 943; People v. Berry (1960), 18 Ill. 2d 453, 165 N.E.2d 257.

After carefully reviewing the record in the case at bar, we conclude that the remarks made by the prosecutor and the trial court during closing argument were not so prejudicial as to constitute reversible error.

Accordingly we affirm the convictions of defendant.

Affirmed.

HARTMAN, P. J., and DOWNING, J., concur.

       During trial, defense counsel conversed with Lewis by phone, and by stipulation this conversation was reported to the jury. Defense counsel told the jury that Investigator Lewis stated that during the interview with defendant at the time of his arrest she heard him say that he “took” the victim’s money, but did not hear him say that he “robbed” her.

       The “material witness rule” is designed to assist the court in determining whether or not a confession is voluntary. If a trial judge is satisfied that a confession is voluntary, it is within his discretion not to require that all material witnesses be called. Such a decision by the trial judge will not be reversed absent a clear abuse of discretion. See People v. Terrell (1974), 18 Ill. App. 3d 911, 914, 310 N.E.2d 791, 794, aff’d (1975), 62 Ill. 2d 60, 338 N.E.2d 383.

       Defendant also contended that he was prejudiced because the .trial court denied his request for a postponement of the trial so that he could call Investigator Lewis to testify as to the voluntariness of defendant’s confession. Defendant’s motion was filed, as the trial court noted, after the jury had been selected and the trial was ready to begin. Investigator Lewis would not have been available for four to six more weeks.
      Defendant was allowed to use the report prepared by Lewis in his cross-examination of the witnesses. Moreover, the assistant state’s attorney and defendant entered into a lengthy stipulation, after defendant conversed with Lewis by phone, which stipulation was read to the jury. This stipulation removed any necessity for a continuance. 111. Rev. Stat. 1979, ch. 38, par. 114—4(b)(3).


source: Caselaw Access Project

license: Public Domain

text:
    LORRAINE JENSEN GRAU, Claimant-Appellee, v. VIRGINIA P. DOOLEY, Adm’r of the Estate of James A. Dooley, Deceased, Respondent-Appellant.
    First District (2nd Division)
    No. 80-2590
    Opinion filed December 29, 1981.
    Boodell, Sears, Sugrue, Giambalvo & Crowley, of Chicago (Barnabas F. Sears and Wayland B. Cedarquist, of counsel), for appellant.
    Cherry & Flynn and William J. Harte, Ltd., both of Chicago (Myron M. Cherry, Peter Flynn, and William J. Harte, of counsel), for appellee.
   JUSTICE PERLIN

delivered the opinion of the court:

This appeal concerns a claim against the estate of the late James A. Dooley, a justice of the Illinois Supreme Court, who died intestate on March 5, 1978, in Bal Harbour, Florida. Decedent’s widow, Virginia P. Dooley, was appointed administrator on March 10,1978. On September 8, 1978, Lorraine Jensen Grau, a longtime friend and employee of decedent, filed a claim against the estate for delivery of 13,000 shares of the capital stock of Farmers Group, Inc. This claim was based on an “Assignment Separate From Certificate” which Grau stated decedent had executed and delivered to her shortly before his death. The estate disputed the claim, and Grau brought suit. After a three-day bench trial, the trial court upheld Grau’s claim and entered judgment in her behalf for 13,000 shares of the stock. In an amended final order, the court ordered the estate to transfer to Grau 13,000 shares, together with the dividends paid or accrued on the stock since February 25, 1978, which the court previously had determined was the date on which decedent had signed and delivered the assignment. The estate’s motion for a rehearing was denied, and this appeal followed.

The estate has advanced four arguments in support of its request for reversal or, in the alternative, a new trial. Upon our review of the briefs and argument in this cause, however, we believe that the estate’s appeal presents a single issue: whether the trial court’s judgment was against the manifest weight of the evidence. For the reasons which follow, we affirm the judgment of the trial court.

Grau testified that she had worked for decedent on a regular basis between 1943 and 1945, between 1950 and 1953, and from early 1976 until his death in 1978. Throughout their acquaintance, Grau did occasional work for decedent and maintained a social relationship with him. In January 1976 Grau became involved with decedent’s campaign for the supreme court, worked long hours on his behalf and acted as his campaign manager. During the summer of 1976, Grau also resumed her former duties as decedent’s personal secretary. In that capacity she took care of “all the details, all the minutia[e]” of decedent’s office at 111 West Washington and handled the secretarial and administrative chores relating to his law firm and his property “Yellow Bayou.” Grau kept track of decedent’s personal affairs, chauffeured him, saw to it that routine bills were paid according to decedent’s instructions and performed a multitude of other tasks for him. Grau often worked late for decedent, sometimes until 2 or 3 a.m., and regularly dined with him on business at the Chicago Athletic Association, a fact which was confirmed by the association’s headwaiter, Stanley Nadvodnik.

After decedent was elected to the supreme court in November 1976, he moved his law office from a large suite at 111 West Washington to a small space in the offices of attorney Leonard Ring at the same address. Decedent sold his practice and Grau worked at that location in helping him with his personal matters and in winding up his practice. Decedent’s court chambers were located at the Chicago Civic Center.

According to both Grau and several other witnesses, decedent prized her dedication, loyalty and integrity and considered her his friend and “right arm” as well as his employee. In the four years before his death, decedent made at least four gifts of expensive jewelry to Grau (a solid gold ring and necklace, a pair of diamond earrings and a diamond brooch) and attempted to name her one of the beneficiaries of his interest in his law firm’s pension plan.

One of decedent’s assets consisted of 11,681 shares of common stock in Farmers New World Life Insurance Company. Late in 1977 Farmers New World announced to its stockholders a proposed merger into Farmers Group, Inc., another insurance company, which offered 2.3 shares of its stock in exchange for each share of Farmers New World. Under the terms of the merger, decedent would receive 26,866 shares of Farmers Group stock. When Grau informed decedent of the merger notification in December 1977, decedent “quite casually” told her, “I’ll give you some of that.”

On January 19, 1978, after the merger had been approved, Grau prepared a list of decedent’s certificates of stock in Farmers New World. Hermina Brandt, a secretary at Paine, Webber, Jackson & Curtis, a brokerage house with offices in Chicago, testified that on January 20, 1978, Grau personally delivered to Paine, Webber decedent’s 26 certificates of stock in Farmers New World so that the new share certificate in Farmers Group could be issued.

On or about January 19, Grau advised decedent that he was to receive approximately 26,000 new shares in exchange for his 11,000 old shares. According to Grau, decedent said, “ ‘I’ll give you half.’ Then he dropped it.” Grau was “ecstatic” and “could hardly believe it” because decedent also informed her that he had named her one of .the beneficiaries of his pension fund. Grau said, “Jim, this is fantastic,” and he replied, “You deserve it.” Grau, however, did not pursue the matter further with decedent because she did not think that he had made á firm commitment to her and she did-not want to appear to be “begfging] for a gift.”

Shortly after this conversation, decedent went to San Francisco for a meeting of the International Academy of Trial Lawyers. He caught cold and went to Florida to visit his wife, Virginia, from whom he had separated in 1973, and their adopted daughter, Ginny.

In June 1977 Virginia P. Dooley had filed a praecipe and summons for dissolution of their marriage. A complaint for dissolution was prepared but never filed. In these proceedings decedent was represented by his longtime friend, John Cusack, who took Virginia Dooley’s deposition in January 1978.

Decedent returned to Chicago on February 20, 1978. John Cusack testified that on February 21, 1978, decedent told him, “I have got 26,000 shares of that Farmers Group Stock, and I am going to give Lorraine [Grau] 13,000 shares.” Although Cusack was not aware of the value of the stock, he told decedent, “that’s a very gracious gift,” or words to that effect, because, in Cusack’s opinion, “13,000 shares of anything is gracious

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Cusack testified further that on February 22,1978, decedent said, in substance, that he had asked Grau to prepare the assignment for the stock. Cusack could not recall whether he had seen an assignment on that day. His testimony that he had a meeting with decedent on February 22 was corroborated by an entry in his appointment book which was introduced into evidence. At the time of trial, Cusack had two claims pending against the estate for $115,000 in legal fees. He expected Grau to testify in support of one and possibly both of his claims.

Grau testified that on Thursday evening, February 23, 1978, she had dinner with decedent at the Chicago Athletic Association. Decedent asked Grau, “Did you write up that certificate yet.” Grau replied that she had not prepared the assignment because he had not yet instructed her to do so. Decedent said, “Get it and I’ll sign it before I leave.” Decedent planned to fly back to Florida on Saturday, February 25.

Grau testified that she typed the assignment on a Paine, Webber “Assignment Separate From Certificate” form (which was necessary because the new stock certificate in Farmers Group was still in transit) at her home on the morning of February 24,1978. Several weeks before that date, Grau had taken some Paine, Webber forms to her home in order to process an unrelated transaction of her own. In typing the assignment, Grau did not include either the certificate number, which she did not know until March 3, 1978, or decedent’s account number at Paine, Webber.

Grau’s testimony at trial regarding the details of how and where she typed the assignment was impeached by her deposition testimony. At her deposition Grau stated that she had typed the entire assignment, including the new certificate number (FBU 27770) and decedent’s account number (CG-76510), at one sitting in her office at 111 West Washington on February 24. Grau and the estate, however, stipulated to excerpts from the deposition of an examiner of questioned documents, David J. Purtell, which established that the certificate and account numbers, although aligned with each other, were not in alignment with the rest of the characters appearing on the assignment and therefore could not have been typed at the same time. Documents obtained from Paine, Webber indicated that the share certificate in Farmers Group (containing the new certificate number) did not arrive at Grau’s office until March 3, 1978. After Grau reviewed Purtell’s deposition and the Paine, Webber documents, she remembered that she had not prepared the assignment at one sitting and corrected her deposition so that it accorded with her new recollection.

Since decedent had informed Grau that he was going to give her half of the approximately 26,000 new shares, Grau typed “13,000” on the form. The new certificate showing the exact number of shares had not yet arrived, and Grau testified that she “didn’t want to be greedy and figure it out to the last percentage point.”

Later in the morning on February 24, 1978, Grau brought the typed assignment to the 111 West Washington office with her. She took the original and a copy to decedent at his chambers, together with other papers he had requested, but decedent was not then available. She left the copy at his chambers and kept the original to be signed when she met him the next day.

John Cusack testified that he met with decedent in his chambers later in the afternoon of February 24. Decedent told Cusack that “he had Lorraine prepare a stock assignment covering the thirteen thousand (13,000) shares of the Farmers Group stock that he was giving her.” Decedent showed Cusack the unsigned copy of the assignment which Grau had left with him. At trial Cusack remembered three things about the assignment—the name of the donee, “Lorraine Jensen Grau,” the identification of the stock, “Farmers Group, Inc.,” and the number of shares, “13,000.” Cusack could not recall whether the assignment was dated or contained a stock certificate number. Cusack’s appointment book noted a 4:30 p.m. meeting with decedent “re: Lorraine stock gift.”

John Cusack’s brother, Circuit Court Judge Robert Cusack, who had been a very close friend of decedent for many years and had met Grau, through decedent, in the early 1950’s, also testified. Cusack stated that he had a lengthy private conversation with decedent in Cusack’s car outside of decedent’s Harbor Point Towers apartment late in the evening on February 24,1978. In the course of that conversation, depedent mentioned his marital problems to Cusack, who assured him that his friends would stand by him. Cusack told decedent that Grau “was always ready, willing and able to help” him and characterized her as “the best friend in the world anybody could ever have had ° ° Decedent replied, “I know that,” and asked Cusack, “You know, that Farmers?” Cusack answered, “Yes,” understanding decedent to be referring to his stock in Farmers New World Life Insurance Company about which he had often bragged to Cusack. According to Cusack, decedent said, “Well, I gave her a hunk of it.” Cusack said, “Fine.” Cusack testified that he thought decedent had already given her the stock.

Cusack did not memorialize this conversation or mention it to anyone until he was interviewed by one of Grau’s attorneys near Easter 1980. Cusack testified that he never discussed what decedent confided in him with anyone, not even his brother.

Grau testified that per decedent’s instructions, she brought the assignment and some other papers with her when she picked him up on the morning of February 25 to drive him to the airport. Decedent signed the assignment in Grau’s car outside his apartment while his housekeeper, Charlotte Thon, was assembling his luggage. Thon testified that she remembered decedent signing something as he sat in Grau’s car but she did not see what it was. The parties stipulated that the signature on the assignment was genuine, and the assignment was admitted into evidence.

Grau took the executed assignment, which was complete except for the new certificate number and account number, and placed it in the office desk drawer where she also kept index cards showing decedent’s investment holdings. On or about March 1, 1978, she was notified that Paine, Webber’s Chicago office had received the new Farmers Group certificate. At decedent’s suggestion, Grau advised Paine, Webber to mail the certificate to his office. Hermina Brandt confirmed the details of this conversation.

The certificate arrived on March 3,1978. Grau typed out a new index card reflecting the new certificate, and also typed out the certificate number and decedent’s Paine, Webber account number on the assignment. In a telephone conversation that evening, Grau advised decedent that the certificate had come in and that she had typed the numbers on the assignment.

Grau did not show the gift on the new index card. She testified that this was because the stock covered by the new certificate—of which only part was Grau’s—was still in decedent’s name on the Farmers Group books. For the same reason, although Grau took the assignment home with her, she left the certificate in the office’s locked file cabinet together with other stocks and bonds.

Decedent died two days later, on March 5, 1978, and his widow, Virginia P. Dooley, immediately instructed both Grau and attorney Leonard Ring that Grau was not to touch anything in decedent’s office at 111 West Washington or enter the office until further notice. On March 6, 1978, Ring informed Grau that he would be counsel for the estate. Grau did not mention the gift to Ring because she was “still in a state of shock” over decedent’s unexpected death. Ten or twelve days after the funeral, however, she showed the assignment to John Cusack who told her that she would have to file a claim and advised her to inform the estate. Grau rejected this advice and decided to retain a lawyer before she notified the estate of her claim. According to Grau, selecting an attorney required a substantial amount of time because most of the lawyers she knew were personal injury specialists who were not necessarily conversant with probate matters.

Grau knew that she had six months within which to file her claim against the estate. On June 30, 1978, which was more than two months before Grau filed, the guardian of the estate of decedent’s daughter, Virginia Ann Dooley, brought suit against Grau and others attacking decedent’s designation of beneficiaries to his pension plan.

Grau also called the administrator, Virginia P. Dooley, who testified that she had no information with which she could dispute the making of the gift. She also stated that in the late 1960’s decedent had brought 225 stock powers to their home and signed them in blank in her presence. Grau had no access to these powers and, to the administrator’s knowledge, was not aware of their existence. Over Grau’s objection, these powers, which did not include any Paine, Webber forms (the form on which the assignment was executed), were introduced into evidence. Grau testified that she did not know that decedent kept any stock powers signed in blank and had never seen any.

The estate presented no witnesses but introduced a series of exhibits purporting to demonstrate that Grau had signed, assisted in preparing or tacitly approved various documents which failed to disclose the existence of the gift.

After hearing' all the evidence, the trial court entered judgment in favor of Grau. At the time the gift was made, the stocks had a market value of approximately $300,000.

The estate’s appeal presents, in substance, a single issue: whether the trial court’s judgment was against the manifest weight of the evidence. When a survivor claims that a person, now deceased, made a gift of valuable property in his lifetime, the survivor must prove by clear, satisfactory, unequivocal and convincing evidence that the decedent intended to make the gift and that he delivered the gift. (Dudley v. Uptown National Bank (1960), 25 Ill. App. 2d 514, 521, 167 N.E.2d 257.) In our judgment both intent and delivery were established by the requisite degree of proof.

The evidence that decedent intended to give Grau a substantial portion of his stock in Farmers Group was clear and convincing. Grau testified that on three different occasions decedent told her he was going to make a gift of the stock to her. According to Grau, decedent said he would give her half of the approximately 26,000 shares he expected to receive through the corporate merger. Two other witnesses, Robert Cusack and John Cusack, also testified that decedent had expressed an intention to give Grau some of his stock in Farmers. John Cusack testified that decedent specifically advised him on February 21, 1978, that he had 26.000 shares of Farmers Group stock and that he was going to give Grau 13.000 shares. He also stated that on February 24,1978, decedent told him that he had instructed Grau to prepare an assignment for the 13,000 shares and showed him an unsigned copy of the assignment on which Grau’s name, the identification of the stock and the number of shares appeared.

Grau testified that decedent signed the assignment while he was sitting in her automobile on the morning of February 25,1978. The estate stipulated to the genuineness of the signature. While Grau did not in so many words testify that decedent handed her the assignment, delivery of the executed assignment reasonably may be inferred from Grau’s testimony that she locked the signed assignment into her desk drawer at decedent’s personal office. Grau’s possession of the executed assignment itself raises a presumption that it was delivered to her, a presumption which has been applied even where the article in question “was accessible to [the donee who] might have purloined it * * (Martin v. Martin (1897), 170 Ill. 18, 33, 48 N.E. 694; O’Connor v. Messenger (1913), 183 Ill. App. 1, 11; In re Estate of Hill (1963), 42 Ill. App. 2d 396, 400-02, 405-06, 192 N.E.2d 429.) The estate presented no evidence to rebut this presumption.

The estate attacks the credibility of Grau and the Cusacks on a number of grounds, most of which do not warrant individual comment since they are unrelated to the material issues of intent and delivery. (Kapraun v. Kapraun (1957), 12 Ill. 2d 348, 355, 146 N.E.2d 7.) The estate points to the inconsistencies between Grau’s trial testimony and her deposition testimony regarding where she typed the assignment and whether the certificate number and account number were typed at the same time as the rest of the assignment. Grau, however, offered a reasonable explanation for these inconsistencies.

Grau testified that her memory is not “infallible” and that at the time of the deposition it did not seem significant to her to remember every detail of how and where the assignment was typed. Grau characterized the deposition as “rough” and stated that there was a “great deal of arguing back and forth.” She “became more nervous” as the deposition progressed and even cried during it. We note, however, that once Grau’s recollection was refreshed by the knowledge that the numbers were not typed at the same time as the rest of the assignment, Grau was able to recall the precise circumstances and corrected her deposition so that it conformed to the facts as she then remembered them. Although the estate argues that in reviewing a deposition a deponent may correct only a court reporter’s errors and that Grau’s corrections were therefore improper alterations of her testimony, we cannot agree.

Supreme Court Rule 207(a) provides, in part, that “[a]ny changes in form or substance which the deponent desires to make shall be entered upon the deposition by the officer with a statement of the reasons given by the deponent for making them.” (Emphasis added.) (Ill. Rev. Stat. 1979, ch. 110A, par. 207(a).) In permitting a deponent to make changes in the substance of a deposition, Rule 207(a) accords with prior practice in Illinois (see Harrison v. Thackaberry (1911), 248 Ill. 512, 518, 94 N.E. 172) and with the interpretation Federal courts have given Rule 30(e) of the Federal Rules of Civil Procedure from which our rule was derived. Allen & Co. v. Occidental Petroleum Corp. (S.D.N.Y. 1970), 49 F.R.D. 337, 340; Colin v. Thompson (W.D. Mo. 1954), 16 F.R.D. 194; see generally Manus, Correcting The Deposition: Deponent’s Rights, 66 Ill. B. J. 648 (1978).

Even if we accept that there were inconsistencies between Grau’s deposition testimony and her testimony at trial, “[t]he fact that a witness, either a party or otherwise, has made out-of-court statements inconsistent with [her] sworn testimony, does not per se destroy the probative value of [her] testimony” or “render [her] testimony nugatory.” (Haynes v. Chicago Transit Authority (1978), 59 Ill. App. 3d 997, 1003, 376 N.E.2d 680; Reed v. Knol (1972), 7 Ill. App. 3d 163, 287 N.E.2d 238.) This is particularly true where, as here, the inconsistencies are not material to the principal factual issues of the case.

What is critical is that Grau testified that at the time decedent signed the assignment everything which now appears on it was present then except for the new stock certificate number, which was not known until March 3, 1978, and the Paine, Webber account number which, presumably, Grau did not have at home where she typed the assignment. John Cusack’s testimony corroborated Grau’s testimony that the name ,of the donee, the .identification of the stock and the number of shares had been typed on the assignment before decedent signed it. On all material issues Grau’s testimony and that of the Cusacks was clear and convincing.

A significant portion of the estate’s attack on Grau’s credibility focuses on her silence after decedent’s death and her preparation or tacit approval of documents on which the entire 26,866 shares of Farmers Group, Inc., were listed as decedent’s assets.

Following decedent’s death, Grau did not notify either his widow or the estate’s attorney of her claim because, according to Grau, she was still in a state of shock over his death. Ten to twelve days later Grau mentioned the gift to John Cusack but rejected his advice to inform the estate immediately of her claim. Grau knew that she had six months in which to file a claim and spent part of that period attempting to locate counsel experienced in probate.

The estate also introduced into evidence five exhibits purporting to demonstrate that Grau failed to disclose the gift after decedent’s death. We have examined these exhibits and have reviewed the testimony pertaining to them and find that they do not possess the probative significance the estate claims for them. Exhibit R-2(2) is a partial list of decedent’s assets which does not include his stocks and bonds. Exhibit R-3, a ledger of dividends on decedent’s stocks which Grau maintained, merely attributes to decedent two dividends on the Farmers Group stock which were declared before the gift was made. Exhibit R-4 is the inventory of decedent’s estate which the administrator filed with the probate court on July 26, 1978. Grau did not prepare the inventory and testified that she did not recall seeing it before it was filed. Exhibit R-5 is a list of stocks and bonds compiled by representatives of the estate on May 2, 1978. Grau was provided with a Xerox copy of this list on May 2 but was not asked to review it. Grau received another copy of this list from the estate’s attorneys late in August 1978, by which time the estate had already been informally apprised of Grau’s claim. Exhibit R-2(l) is a Paine, Webber valuation of decedent’s stocks and bonds as of February 28,1978, prepared at the request of Grau and decedent’s accountant who had been asked to make a list of decedent’s assets in connection with the pending divorce proceedings. In April 1978 Grau noted on the list some differences between her records and Paine, Webber’s but did not then comment on Paine, Webber’s attribution of the entire 26,866 shares to decedent. As of the February 28 valuation date, the certificate was, as the list indicated, still in decedent’s name on the books of the insurance corporation,

Neither Grau’s silence nor her failure to correct or object to documents on which her gift was not listed precludes a finding that decedent made the gift. In In re Estate of Toigo (1969), 107 Ill. App. 2d 395, 246 N.E.2d 68, both the donee and the principal witness had signed and formally filed a sworn inventory showing the stock in question to be part of the donor’s estate. Both witnesses denied reviewing the inventory before signing it. The gift was not asserted until more than a year after the donor’s death. “At no time ° * * was there a disclosure that a gift of the stock had been made” and the donee had “remained silent about the gift” even during negotiations with relatives and “legal representatives of the estate of Harry Toigo” concerning other stock in the same family-owned company. The appellate court held that, this “testimony of a negative nature,” consisting of “inference and innuendo” could not defeat the gift. (107 Ill. App. 2d 395, 401.) Nor, in our opinion, should such inference and innuendo defeat the claim in the present case.

The evidence adduced at trial established the elements of a gift by the required measure of proof. Upon a review of that evidence, it cannot be said that the trial court’s judgment in favor of Grau was against the manifest weight of the evidence. Accordingly, the judgment of the trial court is affirmed. ■

Affirmed.

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

       We note that another division of this court has affirmed a trial court’s judgment declaring the alleged 1978 beneficiary assignment in favor of Grau and others to be invalid and ineffective because of decedent’s failure substantially to comply with the formalities required by the plan. (Dooley v. James A. Dooley Associates Employees Retirement Plan (1981), 100 Ill. App. 3d 389, 426 N.E.2d 1028.) That opinion, however, leaves no doubt that decedent had taken the initial steps to change the designation of his beneficiaries.

       We cannot accept the estate’s contention that John Cusack’s testimony was not entitled to credence simply because another trial court may have found unpersuasive Cusack’s testimony on an unrelated matter concerning decedent’s attempt to change the designation of beneficiaries of his retirement plan. (See Dooley v. James A. Dooley Associates Employees Retirement Plan (1981), 100 Ill. App. 3d 389, 395-96, 426 N.E.2d 1028.) In this case the trial court accepted Cusack’s testimony. As in Dooley, “[t]he credibility of witnesses in a bench trial is a matter within the province of the trial court which saw and heard them, and its findings will not be disturbed unless against the manifest weight of the evidence. [Citations.]” 100 Ill. App. 3d 389, 395-96.

       At oral argument, the estate conceded that the inclusion of the new share certificate number was not necessary to effect a valid assignment of the stock. Once decedent delivered the executed assignment to Grau, she had an irrevocable right to “do the things necessary in completing the transfer.” In re Estate of Hill (1963), 42 Ill. App. 2d 396, 400, 192 N.E.2d 429; see also Home for Destitute Crippled Children v. Boomer (1941), 308 Ill. App. 170, 187. 31 N.E.2d 812.


author: PRESIDING JUSTICE HARTMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHARLES STANLEY JOHNSON, Defendant-Appellant.
    First District (2nd Division)
    No. 80-2691
    Opinion filed December 29, 1981.

      Jerome Rotenberg, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Michele A. Grimaldi, and Lester M. Joseph, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE HARTMAN

delivered the opinion of the court:

Defendant was charged with murder and armed violence relating to the death of Albert Owens on October 8, 1979. On June 5, 1980, he was found guilty of all charges after a bench trial and subsequently was sentenced to 20 years imprisonment. Defendant appeals. The dispositive issues presented on review are whether the trial court erred in denying defendant’s motion to quash arrest and suppress evidence which had been denied prior to trial but after an evidentiary hearing; and whether the oral admission made by defendant should have been suppressed. For the reasons which follow, we reverse.

Pursuant to defendant’s motion to suppress, the following evidence was adduced: Dorothy Riñes, defendant’s “common-law wife,” testified that there was a knock on the door of their apartment, second floor in the 6800 block of South Normal Street, in Chicago, between 7:15-7:30 a.m. on October 13,1979. She asked who was there and a voice said that it was the police and that she should open the door. Upon opening the door, she saw a policeman standing in the outside hall with a gun pointed at her. Three other policemen were standing in the hall, one armed with a rifle. The police entered the apartment. Riñes asked whether they had a search warrant, and a policeman said that the only warrant he needed was in his hand, indicating the gun. She did not consent to the police entering the apartment. One officer walked to the back of the apartment, opened the back door and let in other policemen. There were then six policemen in the apartment altogether. When she opened the door, defendant was in the living room seated on a couch. When he started walking from the living room, the police told him to stand still and not move. The closet in the hallway leading to the front door was searched, and a handgun and two rifles were taken from it. The closet door had been closed.

Defendant testified at the hearing on his motion to suppress. He was on the couch in the living room when he heard a knock on the door. His wife went to answer it. When he heard some hollering, he walked toward the front door. The police, upon meeting him coming from the front room, told him to stand still, and said they wanted to question him about a murder. Their guns were drawn. They asked him his name. He told them “Charles Stanley Johnson,” and they handcuffed him. They then seated him on the couch in the front room while they searched the apartment. The closet door was closed. They found rifles hidden behind clothes on the floor of the closet. He knew nothing about the pistol.

Chicago Police Officer James Higgins testified that at 5:30 a.m., he knocked on the back door of the apartment, which was opened by Investigator William Foley. He walked through a hallway, and saw, through an open closet, two rifles and a pistol. The closet was 10 feet from the front door. He had no warrant. He did not remember whether the closet had a door.

Chicago Police Investigator Richard Sólita testified that on October 12, 1979 at 2-2:30 p.m., he received information from an informant that the two men who committed the homicide he was investigating lived at the Normal Street address in Chicago, one in the basement and one on the second floor. The informant had given him information leading to arrests four times in the past. He went to the address to make the arrest at 7:30 a.m. on October 13, 1979. The informant had given a full physical description of the men and said that the one living on the second floor at that address was named Stan. Officer Sólita knocked on the basement door and two male occupants of the apartment answered the door and admitted him. At the same time, the other investigators who had been stationed in front of the building arrested two individuals who were climbing through a small basement window attempting to flee. One of the men matched one of the descriptions provided by the informant, but the other did not. Sólita then asked the residents of the basement apartment whether anyone living in the building matched the description of the remaining suspect, which was a description of defendant. One of the men said that a person fitting that description lived on the second floor. Sólita then knocked on the door of the apartment on the second floor and announced his office. A woman “started screaming and acting hysterical.” She opened the door, ran out of the hallway past the police, stopped, went back into the apartment, grabbed a baby and ran past the police. The door was left open. The police looked inside and observed defendant standing there. He was placed under arrest.

After closing arguments, defendant’s motion to suppress was denied.

At trial, the following testimony was heard. Chicago Police Officer James Nelson testified that the victim, Albert Owens, was found lying in the street in the 7100 block of South Halsted Street, Chicago, on October 8,1979, at about 11 p.m.

Testimony of Richard Sólita and James Higgins comported with their statements at the hearing on the motion to suppress. Higgins further testified that he later saw defendant in an interview room at Area 3 Homicide Headquarters. When first asked about the shooting of Owens, defendant denied any knowledge thereof. Later when he was told that the weapon found in his closet was matched through ballistics to the weapon that had fired a bullet found in Owens, defendant said that he wanted to tell the truth and he gave an oral statement. He admitted that he shot at Owens with his .38 pistol and that a Michael Head also shot Owens.

The medical examiner, Dr. Mitra Kaalelkar, testified that the victim died of multiple gunshot wounds. There was a stipulation that if Donald E. Smith, firearms examiner of the Chicago Police Department, were to testify he would state that the .38-caliber bullet taken from the victim’s body was fired by the .38-caliber revolver recovered from defendant’s closet. It was also stipulated that a .38-caliber bullet found on the sidewalk in the 7100 block of South Halsted Street was also fired from this weapon.

Investigator Craig Cegielski also testified relating to the oral statement made by defendant. The admissions were made by him at about 12 noon. Defendant originally denied any knowledge of the death of Owens. Defendant was left basically alone by police other than for routine questions until about noontime. Investigator Higgins returned from the crime laboratory at 12 noon and related to defendant the findings of the ballistics examination. He then gave his oral statement.

Defendant testified as the only defense witness at trial. He never saw the pistol before it was removed from his closet and he denied any knowledge of the murder of Owens. The police told him that Michael Head had made a statement that he, defendant, had shot Owens, and that the police had also told him of the findings of the ballistics examiner. The police were kicking, hitting and slapping him in an effort to get him to sign a statement. They told him that they were going to charge his brother with the crime whom they knew was on parole and that they could charge his wife as an accessory and place his children with Family Services. He denied making any oral admissions. He finally told an Assistant State’s Attorney that he would say anything if they left him alone and stopped harassing him. He made an oral statement to the assistant State’s Attorney and admitted that he said, “Okay, I will admit to it.”

I

Defendant first argues the trial court erred in denying his motion to quash arrest and suppress evidence because the police officers lacked probable cause to arrest him without a warrant. He contends that the information given to police by their informant was insufficient in that it did not satisfy the requirements prescribed by Aguilar v. Texas (1964), 378 U.S. 108, 114, 12 L. Ed. 2d 723, 729, 84 S. Ct. 1509, 1514. The Supreme Court there held that information provided by an informant, in order to constitute probable cause, must be supported by underlying circumstances showing the basis of the informant’s conclusions, as well as his. reliability. Defendant in the present case does not question the informant’s reliability, but claims that no facts were presented which would support the informant’s conclusion that defendant had committed the homicide. Defendant relies upon: People v. Odom (1980), 83 Ill. App. 3d 1022, 404 N.E.2d 997, in which information provided police that two men in a pickup truck were selling marijuana was deemed insufficient where there was no showing regarding the basis of the informant’s conclusion that the plastic bag containing a leafy substance which he observed contained marijuana; People v. Palanza (1978), 55 Ill. App. 3d 1028, 371 N.E.2d 687, where no underlying facts were presented from which an informant • could have concluded he observed cocaine; and People v. Barker (1979), 72 Ill. App. 3d 466, 391 N.E.2d 214, and People v. Harshbarger (1974), 24 Ill. App. 3d 335, 321 N.E.2d 138, in both of which police suspicion of marijuana use was improperly supported by their belief that they smelled it (Harshbarger) or observed marijuana “joints” (Barker).

The State relies upon an alternative to the “basis of knowledge” prong of the Aguilar test set forth in Spinelli v. United States (1969), 393 U.S. 410, 21 L. Ed. 2d 637, 89 S. Ct. 584, which holds that although an informant’s tip may be devoid of underlying circumstances showing the basis of his knowledge, subsequent corroboration may lend support to the informant’s reliability so that his information may provide probable cause. The State argues that in the instant case, the informant’s knowledge was confirmed by the fact that his descriptions of the offenders and their. locations were ultimately corroborated and by one suspect’s attempt to flee. In Odom, the court rejected a similar argument that the informant’s . monition was sufficient because it was corroborated by the fact that the officer observed, subsequent to receiving the information, two males in a blue pickup truck in the designated place. (83 Ill. App. 3d 1022, 1026.) Further, the fleeing suspect here was never charged with the homicide. In ' addition, the fact that defendant’s physical appearance corresponded to a description furnished by the informant is not by itself a sufficiently corroborating factor, since all that it tended to prove was that the informant knew defendant; it did not link defendant to the crime. (People v. Sturdivant (1981), 99 Ill. App. 3d 370, 425 N.E.2d 1046, appeal denied (1981), 85 Ill. 2d 581.) The corroborating information must support the conclusion that the arrestee and no other person was the individual who had committed the offense. People v. Sturdivant; People v. Andreat (1979), 76 Ill. App. 3d 948, 951, 395 N.E.2d 728.

The State’s reliance in this regard upon People v. Scarpelli (1980), 82 Ill. App. 3d 689, 402 N.E.2d 915, and McCray v. Illinois (1967), 386 U.S. 300, 18 L. Ed. 2d 62, 87 S. Ct. 1056, is misplaced. In both cases, the fact that defendants there attempted to flee when confronted by police was one factor which was held to justify their subsequent arrest. In both cases, however, defendants were observed, prior to their arrest, acting suspiciously while attempting to commit the crime later charged. Further, in both cases, the activities of defendants themselves aroused suspicion, rather than that of another suspect. Further Scarpelli did not involve an informant. Although McCray was so involved, the informant there was purported to have actually observed defendant engage in criminal activity. McCray, 386 U.S. 300, 304, 18 L. Ed. 2d 62, 66-67, 87 S. Ct. 1056, 1058-59.

We hold, under the foregoing circumstances, that the police lacked probable cause when they arrested defendant without a warrant. His arrest was therefore unlawful and should have been quashed, and the items seized in his apartment should have been suppressed. Under this posture of the case, we need not consider the question of whether defendant’s warrantless arrest was improper under Payton v. New York (1980), 445 U.S. 573, 63 L. Ed. 2d 639, 100 S. Ct. 1371, which proscribes a warrantless arrest of a suspect in his home absent exigent circumstances.

II

Defendant next contends that his inculpatory oral statement should have been suppressed as the fruit of his unlawful arrest, since there were no intervening circumstances between the arrest and the statement which served to dissipate the taint of the arrest. He relies upon People v. Williams (1977), 53 Ill. App. 3d 266, 368 N.E.2d 679, which in turn, was decided on the basis of principles enunciated in Brown v. Illinois (1975), 422 U.S. 590, 45 L. Ed. 2d 416, 95 S. Ct. 2254, and Wong Sun v. United States (1963), 371 U.S. 471, 9 L. Ed. 2d 441, 83 S. Ct. 407. In Williams, the court held that although Miranda warnings were given, the causal connection between the improper arrest and the confession is not broken and the inquiry must extend to: the temporal proximity of the arrest and the statement; the existence or absence of intervening circumstances; and the purpose and flagrance of police misconduct in making the arrest. The court in Williams found the fact of defendant’s illegal arrest without probable cause for investigative purposes sufficient evidence of police misconduct and also observed that defendant was arrested and immediately taken to the police station to be questioned.

It is evident here that defendant became the object of the police investigation on the basis of the informant’s tip and that the arrest was made by virtue of that information. Defendant was arrested and taken to the police station immediately, where he was questioned intermittently until he made the admission. A direct causal relationship between the arrest and the admission was thus established, which precludes any conclusion that defendant’s statement may be dissociated from the effects of the illegal arrest. The admission should have been suppressed.

For the foregoing reasons, defendant’s conviction must be reversed.

Reversed.

DOWNING and PERLIN, JJ., concur.


text:
    BETTY JANE PLOCAR et al., Plaintiffs-Appellants, v. DUNKIN’ DONUTS OF AMERICA, INC., et al., Defendants-Appellees.
    First District (2nd Division)
    No. 80-2788
    Opinion filed December 29, 1981.

      Phillip L. Kotula, of Roselle, for appellants.
    Jenner & Block, of Chicago (Howard R. Barron and Ruben Castillo, of counsel), for appellee Elizabeth Bennett.
    Rothbart, Stein & Moran, of Chicago (Thomas E. Moran, of counsel), for appellee Dunkin’ Donuts of America, Inc.
   JUSTICE PERLIN

delivered the opinion of the court:

This is an appeal from an order of the circuit court of Cook County which dismissed with prejudice, for failure to state a cause of action, the complaint of the plaintiffs, Betty Jane Plocar (Betty Jane) and Joseph Plocar, Sr. (Joseph, Sr.), upon motions of the defendants, Dunkin’ Donuts of America, Inc. (Dunkin’ Donuts) and Elizabeth Bennett, a district manager for Dunkin’ Donuts. The trial court’s dismissal of the action for intentional infliction of emotional distress, loss of consortium and violation of a franchise contract was based solely on the pleadings.

The following issues are presented for review: (1) whether Betty Jane sufficiently alleged a cause of action against Elizabeth Bennett for intentional infliction of emotional distress; (2) whether Betty Jane sufficiently alleged a cause of action against Dunkin’ Donuts on the basis of the alleged actions of Elizabeth Bennett; (3) whether Joseph, Sr., sufficiently alleged a cause of action against Elizabeth Bennett and Dunkin’ Donuts for loss of consortium or intentional infliction of emotional distress; (4) whether plaintiffs properly alleged a cause of action against Dunkin’ Donuts for violation of a franchise contract; and (5) whether the trial court abused its discretion by dismissing with prejudice plaintiff’s second amended complaint.

For the reasons hereinafter set forth, we affirm the order of the trial court.

Plaintiffs filed three complaints in this action, all of which alleged that Betty Jane was a franchisee of Dunkin’ Donuts, and that Elizabeth Bennett was a district manager for that company.

Betty Jane’s first complaint was filed on December 28, 1979, in the circuit court of Will County, Illinois. Subsequently the parties agreed by stipulation to transfer the cause to the circuit court of Cook County. Dunkin’ Donuts and Elizabeth Bennett then filed motions to dismiss the complaint based on Betty Jane’s failure to state a cause of action for injury to her business and intentional infliction of emotional distress and her failure to set forth, as required by section 36 of the Civil Practice Act, an alleged written agreement between her and Dunkin’ Donuts.

On May 28,1980, after a full hearing, the trial court entered an order granting defendants’ motions to dismiss the complaint. The court also granted plaintiff 28 days in which to file an amended complaint.

On July 11, 1980, Betty Jane moved the court for leave to file an amended complaint and to add Joseph Plocar, Sr., as a party plaintiff. Defendants renewed their motions to dismiss the complaint for failure to state a cause of action. After reviewing plaintiff’s amended complaint and hearing argument from all parties, the trial court ordered that plaintiff’s amended complaint be stricken. The court granted plaintiff seven days to file a second amended complaint and granted plaintiff’s motion to add the additional party plaintiff.

On July 16, 1980, plaintiffs filed their second amended complaint. That complaint is the subject of this appeal.

Plaintiffs’ second amended complaint was comprised of four counts. Count I alleged that defendant Elizabeth Bennett had “unlawfully, wilfully and contemptuously insulted, disturbed, disquieted and threatened the plaintiff (Betty Jane) by the use of indecent language and proposals when she knew or should have known that such conduct was likely to cause the plaintiff the injuries herein described.” It was averred that Bennett, a district manager and agent of Dunkin’ Donuts, became romantically involved with Betty Jane’s son, who was also her store manager. Due to Mrs. Plocar’s disapproval of the relationship between Bennett and her son, Bennett “threatened” Mrs. Plocar that if she did not stay out of her store, Bennett would cause her to lose the store by making false reports to the franchisor.

It was also asserted that Bennett, as district manager for Dunkin’ Donuts, possessed “great power over the operation and success of the franchises within her district and the plaintiff was at all times in great emotional fear of losing her store if she did not comply with the defendant’s requests.” Bennett allegedly offered to Mrs. Plocar’s son another franchise operation for a price below the reasonable market value. Bennett also allegedly caused Mrs. Plocar’s son to absent himself from the store for hours, disrupting Mrs. Plocar’s business.

Plaintiffs also claimed that Bennett’s wrongful acts, words and proposals caused Mrs. Plocar to become “ill, excited and nervous; her moral sensibilities and ideals of decency and propriety were shocked and she suffered a nervous breakdown, and great pain, anguish and humiliation.” Moreover, Bennett’s acts allegedly caused Mrs. Plocar to be “nervous, irritable, and unable to perform her necessary duties” and that Mrs. Plocar was institutionalized as a result. Mrs. Plocar’s health was allegedly “permanently injured” and she was “forced to expend large sums for doctor bills and medicine.”

It was further charged that Bennett “exhibited letters and made statements to the plaintiff referring to the plaintiff’s son which included explicit and sexual connotations, all of which were calculated to severely traumatize and emotionally distress the plaintiff.” Plaintiffs sought judgment against Elizabeth Bennett for $200,000, punitive damages in the amount of $200,000 and costs of the suit.

Count II of plaintiffs’ second amended complaint alleged that Elizabeth Bennett had acted with the implied and apparent authority of Dunkin’ Donuts and that Dunkin’ Donuts had thus negligently caused Mrs. Plocar to suffer “mental and emotional distress and anxiety” despite its being aware of the problem between Bennett and Mrs. Plocar. A judgment was sought against Dunkin’ Donuts in the amount of $300,000 plus costs of the suit.

Count III of plaintiff’s second amended complaint alleged an action on behalf of Joseph Plocar, Sr., the husband of Betty Jane Plocar, for loss of his wife’s consortium. It was alleged further that “by being forced to witness the suffering endured by his wife, whereby his own nerves and health have been seriously and permanently shocked, weakened and impaired * * Mr. Plocar was deprived of the care and companionship of his wife. This count sought judgment against defendants in the amount of $75,000.

Count IV of the second amended complaint alleged that Dunkin’ Donuts, at the time it sold a franchise to Mrs. Plocar, both orally and in writing agreed to repair faulty equipment existing on the franchise premises. It was asserted further that Dunkin’ Donuts “refused and still refuses to” repair such equipment, and that as a “direct and proximate cause, plaintiff has been damaged in the amount of” $3,057. Plaintiffs sought judgment against Dunkin’ Donuts in the same amount, plus costs of the suit.

Both defendants, Dunkin’ Donuts and Elizabeth Bennett, filed motions to dismiss plaintiffs’ second amended complaint on the grounds that: (1) counts I and II failed to properly set forth facts that would support a cause of action for intentional infliction of mental and emotional distress because no bodily injury or physical impact was alleged and because the alleged facts did not show any extreme or outrageous conduct; (2) count III failed to properly set forth facts which would support the allegation that defendants were liable for the injuries allegedly sustained by Mrs. Plocar and thus Mr. Plocar would have no cause of action against defendants for loss of his wife’s consortium; (3) count IV failed to state a cause of action against Dunkin’ Donuts because plaintiffs did not set out in their complaint, as required by section 36 of the Civil Practice Act, the agreement allegedly breached by Dunkin’ Donuts.

On September 25,1980, a hearing was held on the respective motions of Elizabeth Bennett and Dunkin’ Donuts to dismiss plaintiffs’ second amended complaint. Following the hearing, the trial court entered an order granting defendants’ motions to dismiss and dismissed “with prejudice as to all defendants” plaintiffs’ second amended complaint.

On October 24, 1980, plaintiffs filed a timely notice of appeal from the order of the trial court.

I

The first1 issue presented is whether Betty Jane, in count I of her second amended complaint, sufficiently alleged a cause of action against Elizabeth Bennett for intentional infliction of emotional distress. Defendants argue that this count of Mrs. Plocar’s complaint is unsupported by allegations of specific facts that would give rise to an action for intentional infliction of emotional distress, and thus the trial court’s order granting defendants’ motion to dismiss count I was proper.

To state a cause of action for intentional infliction of emotional distress a plaintiff must allege facts to establish: (1) that the conduct of the defendant was extreme and outrageous; (2) that the emotional distress suffered by plaintiff was severe; and (3) in cases such as the instant one where plaintiff alleges that defendant’s conduct was “reckless,” that defendant’s conduct was such that defendant knew that severe emotional distress would be certain or substantially certain to result. See Public Finance v. Davis (1976), 66 Ill. 2d 85, 360 N.E.2d 765.

With respect to the first element, the nature of defendant’s conduct, “[liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency ° ° (Restatement (Second) of Torts §46, comment d (1965).) Extreme and outrageous conduct may arise from an abuse of position or a relation with another which gives the actor actual or apparent authority over the other or power to affect his interests.

With respect to the second element, the severity of the distress suffered by the plaintiff, “[t]he law intervenes only where the distress inflicted is so severe that no reasonable man could be expected to endure it. The intensity and duration of the distress are factors to be considered in determining its severity.” Restatement (Second) of Torts §46, comment j (1965); see also Prosser, Law of Torts §12, at 54 (4th ed. 1971).

Finally, as to the recklessness of defendant’s conduct, liability extends to situations in which there is a high degree of probability that severe emotional distress will follow and the actor goes ahead in conscious disregard of it. Restatement (Second) of Torts §46, comment i (1965); Prosser, Torts §12, at 60 (4th ed. 1971).

All of the above elements were delineated in Public Finance wherein the Illinois Supreme Court ruled that a cause of action for either intentional or reckless infliction of emotional distress was not adequately set forth. The court stated:

“The liability clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions or trivialities.” (66 Ill. 2d 85, 89-90.)

The court cited Knierim v. Izzo (1961), 22 Ill. 2d 73, 174 N.E.2d 157, the case in which intentional infliction of emotional distress was recognized as a separate tort in Illinois. In Knierim the court cautioned:

“It has not been suggested that every emotional upset should constitute the basis of an action [(for intentional infliction of emotional distress)]. Indiscriminate allowance of actions for mental anguish would encourage neurotic overreactions to trivial hurts * * “.
<* fc fc
There is no inclination to include all instances of mere vulgarities, obviously intended as meaningless abusive expressions.” 22 Ill. 2d 73, 85-86.

In the instant case we do not consider that the alleged conduct of defendant Bennett amounted to more than mere insults, indignities, threats or annoyances. Specifically it was alleged that Bennett “insulted, disturbed, disquieted and threatened the plaintiff (Betty Jane Plocar) by the use of indecent language and proposals”; that she told plaintiff to “stay out of the store” and threatened to make false reports regarding plaintiff to Dunkin’ Donuts. Bennett also allegedly exhibited to plaintiff letters and statements with explicit sexual connotations in reference to plaintiff’s son.

Although Bennett’s actions, as described by her counsel, may have been “hasty and unfortunate,” the complaint alleges no facts that would raise these actions to the level of extreme and outrageous conduct. Even if it is true that Bennett threatened to file false reports about Mrs. Plocar to Dunkin’ Donuts, Mrs. Plocar never alleged that these threats were carried out or that she was reasonably in fear of losing her store. Although Bennett’s relationship to Mrs. Plocar gave her actual or apparent authority to adversely affect Mrs. Plocar’s franchise interest, such relationship, standing alone, does not relieve Plocar of the burden of alleging the extreme and outrageous nature of Bennett’s conduct. “Conduct which otherwise amounts to no more than insults or indignities will not be deemed to be extreme and outrageous simply by virtue of some special relationship which exists between the parties.” Farnor v. Irmco Corp. (1979), 73 Ill. App. 3d 851, 856, 392 N.E.2d 591, 596.

We conclude that the trial court properly dismissed for failure to state a cause of action count I of plaintiffs’ second amended complaint.

II

The second issue presented is whether Betty Jane Plocar sufficiently alleged a cause of action against Dunkin’ Donuts on the basis of the alleged actions of Elizabeth Bennett. Plaintiffs argue that Dunkin’ Donuts is liable for its “willfull or intentional or reckless failure to restrain its agent defendant Bennett.”

Plocar argues that Illinois law imposes liability on a corporation “for negligently entrusting improper people with the ability to adversely effect [sic] others.” Plocar cites as an “analogous” case Rosenberg v. Packerland Packing Co. (1977), 55 Ill. App. 3d 959, 370 N.E.2d 1235.

In Rosenberg the court stated:

“[Defendant Packerland wilfully, wantonly, or intentionally entrusted its truck to a driver it knew or should have known was emotionally and mentally unstable and unsuitable, had a disposition for intentional conduct which would cause or strike fear into other persons using roadways reserved for the general public, and was probably insane.” (55 Ill. App. 3d 959, 964.)

We find no analogy between the actions of an employer in allowing an emotionally and mentally unstable person to drive a truck with which he could injure or kill others, and the actions of Dunkin’ Donuts in allowing Bennett to continue in her job as a district manager for the company after she had allegedly insulted and threatened Mrs. Plocar. Moreover, there is no allegation in Mrs. Plocar’s complaint that Dunkin’ Donuts knew or should have known that Bennett was “emotionally and mentally unstable.”

Plaintiffs’ second theory of Dunkin’ Donuts liability is predicated on the doctrine of respondeat superior. The rule in Illinois with respect to respondeat superior is:

° ° [T]he 000 employer is liable for the negligent, wilful, malicious, or criminal acts of its employees when such acts are committed during the course of employment and in furtherance of the business of the employer; but when the act is committed solely for the benefit of the employee, the employer is not liable to the injured third party.’ ” Hoover v. University of Chicago Hospitals (1977), 51 Ill. App. 3d 263, 266-67, 366 N.E.2d 925, 929.

The theory of respondeat superior clearly does not apply to the instant case since nowhere in count II of plaintiffs’ second amended complaint is it alleged that the actions of Bennett were taken in furtherance of Dunkin’ Donuts’ business nor that such actions were within the scope of Bennett’s employment. If the allegations of the complaint are taken as true, the most that can be said is that Bennett’s acts were committed solely for her own benefit, i.e., to put an end to Mrs. Plocar’s interference in Bennett’s relationship with Plocar’s son. Under the rule enunciated in Hoover, Dunkin’ Donuts would not be liable for Bennett’s alleged acts. We hold therefore that the trial court properly dismissed, for failure to state a cause of action, count II of plaintiffs’ second amended complaint.

Ill

The third issue presented is whether Joseph Plocar, Sr., sufficiently alleged a cause of action against Elizabeth Bennett and Dunkin’ Donuts for loss of consortium or intentional infliction of emotional distress.

Defendants argue that if it is determined that Mrs. Plocar failed to state a cause of action against defendants for intentional infliction of emotional distress, and cannot recover damages from defendants for her injuries, then her husband cannot recover from defendants for his loss of consortium or intentional infliction of emotional distress.

It is generally held that a right of action against a third party for loss of consortium as a result of injuries to a spouse is dependent upon the establishment of the third party’s liability for the spouse’s injuries. See Tjaden v. Moses (1968), 94 Ill. App. 2d 361, 237 N.E.2d 562; Clark v. Carson Pirie Scott & Co. (1950), 340 Ill. App. 260, 91 N.E.2d 452.

Since we find that Betty Jane Plocar has failed to establish that defendants are liable to her for intentional infliction of emotional distress, then it follows that Joseph Plocar, Sr., has no right of action against defendants for loss of consortium. Moreover, since Mrs. Plocar has failed to state a cause of action for intentional infliction of emotional distress, Mr. Plocar cannot base his own action for intentional infliction of emotional distress on injuries which his wife has failed to establish. We conclude that the trial court properly dismissed count III of plaintiff’s second amended complaint.

IV

The fourth issue presented is whether plaintiffs properly alleged a cause of action against Dunkin’ Donuts for violation of a franchise contract. In count IV Mrs. Plocar alleged that Dunkin’ Donuts did agree “in writing” to repair existing damage on the store premises. The damages were set forth by Mrs. Plocar in Exhibit B attached to her complaint. She did not, however, attach to her complaint a copy of the written “repair” agreement.

Section 36 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 36) requires that if a claim is founded upon a written instrument, a copy thereof must be attached to the pleadings as an exhibit or recited therein. Since plaintiffs did not comply with this requirement, the trial court properly dismissed count IV of their second amended complaint.

V

The final issue presented is whether the trial court abused its discretion by dismissing with prejudice plaintiffs’ second amended complaint.

Section 45(4) of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 45(4)) provides in part:

“(4) After rulings on motions, the court may enter appropriate orders either to permit or require pleading over or amending or to terminate the litigation in whole or in part.”

A trial court has discretion to allow the amendment of pleadings or to finally terminate litigation, and the refusal of the trial court to allow amendment is reversible error only if there is an abuse of discretion. (See City of Des Plaines v. Pollution Control Board (1978), 60 Ill. App. 3d 995, 377 N.E.2d 114.) The test to be applied in determining whether discretion was properly exercised in denying an amendment to the pleadings is whether it furthers the ends of justice. In this regard the court may determine the ultimate efficacy of a claim in passing on a motion to amend and whether plaintiff had previous opportunities to assert his claim. Ennis v. Illinois State Bank (1969), 111 Ill. App. 2d 71, 76, 248 N.E.2d 534.

In the instant case the trial court afforded the plaintiffs three opportunities to state a cause of action: once in their complaint, a second time in an amended complaint, and a third time in a second amended complaint. Section 45 and the cases which have construed it clearly hold that a party does not have a right to unlimited amendments. The trial court may bring the litigation to an end when it believes that further amendments to pleadings will not further the interests of justice. Beresky v. Teschner (1978), 64 Ill. App. 3d 848, 381 N.E.2d 979.

Plaintiffs had a fair opportunity to attempt to state a cause of action against the defendants, but in the course of twice amending their complaint they were apparently unable to allege specific facts to support an actionable wrong. We conclude, therefore, that the trial court did not abuse its discretion in terminating the litigation by dismissing with prejudice plaintiffs’ second amended complaint.

For the reasons stated, the order of the circuit court of Cook County is affirmed.

HARTMAN, P. J., and DOWNING, J., concur.

       Plaintiff also alleges that Bennett’s conduct was reckless in that Bennett knew such conduct would result in severe emotional distress to plaintiff. This allegation is unsupported by specific facts and appears to be merely a conclusion. See Tobolt v. Allstate Insurance Co. (1979), 75 Ill. App. 3d 57, 62-63, 393 N.E.2d 1171, 1175.

       In reviewing count I and defendant’s motion to dismiss, we note that although such motion admits all facts well pleaded together with all reasonable inferences which can be drawn from those facts, it does not admit conclusions of law or conclusions of fact unsupported by specific facts upon which such conclusions rests. Pierce v. Carpentier (1960), 20 Ill. 2d 526, 169 N.E.2d 747.

       Section 36 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 36) provides:
      “If a claim or defense is founded upon a written instrument, a copy thereof, or of so much of the same as is relevant, must be attached to the pleading as an exhibit or recited therein, unless the pleader attaches to his pleading an affidavit stating facts showing that the instrument is not accessible to him. ° ° (Emphasis added.)
      Plaintiffs did not attach such an affidavit.