author: PRESIDING JUSTICE ROMITI JUSTICE ROMITI

text:
    SALVATORE LOSCHIAVO, Plaintiff-Appellee, v. GRECO CONTRACTORS, INC., Defendant-Appellant.
    First District (4th Division)
    No. 80-358
    Opinion filed March 19,1981.
    Supplemental opinion filed on denial of rehearing June 10,1982.

      Schaffenegger, Watson & Peterson, Ltd., of Chicago (Jack L. Watson, of counsel), for appellant.
    Lucaccioni & Glockstein, of Chicago (Ronald J. Lucaccioni, of counsel), for appellee.
   PRESIDING JUSTICE ROMITI

delivered the opinion of the court:

The plaintiff, Salvatore Loschiavo, was injured on August 7, 1974, at about 3 a.m., while driving along a road under construction when he went across an unpaved portion of the highway. He brought suit against defendant, Greco Contractors, Inc. There was testimony that at the time of the accident there was no barricade at the place where plaintiff entered the highway under construction nor were there any barricades on the new paved portion between the place where the plaintiff entered and the point of the accident although there were barricades with blinking lights on the strip between the open and closed sections of the highway. The trial court believing that the action fell under “An Act to protect workmen and the general public from injury or death during construction * * * of * * * highways within the State of Illinois (Ill. Rev. Stat. 1973, ch. 121, pars. 314.1 through 314.8), ruled that contributory negligence was not a defense and refused to submit that issue to the jury. After the jury found for the plaintiff the defendant appealed. We reverse.

It is clear from the record that the jury could have found the plaintiff guilty of contributory negligence had that issue been submitted to it. Plaintiff testified that he had driven by the road earlier that day while it was still daylight and noticed that the road was under construction. Knowing the road was under construction, he still chose to drive on it at about 3 a.m. He testified that he recalled seeing road equipment and a pile of gravel but he did not take his foot off the gas when he saw them. When he went off the pavement into the gap, his speed was about 35 miles per hour. Furthermore he testified that he had only his dim lights on even though there was no traffic on the highway directly to his left coming towards him and there was no traffic going in his direction in the same lane. There was testimony that after the accident the plaintiff told the investigating officer that he had been cut off by another car.

Accordingly, the only issue before this court is whether the trial court erred in refusing to submit the issue of contributory negligence to the jury. If it did, then the error clearly was prejudicial and the case must be reversed since the burden to prove due care is on a plaintiff (Vandermyde v. Chicago Transit Authority (1979), 73 Ill. App. 3d 984, 392 N.E.2d 48; Podraza v. H. H. Hall Constuction Co. (1977), 50 Ill. App. 3d 643, 365 N.E.2d 944, appeal denied (1977), 66 Ill. 2d 636; Porter v. County of Cook (1976), 42 Ill. App. 3d 287,355 N.E.2d 561), and there was ample evidence from which the jury could have found this plaintiff negligent.

Ordinarily a defendant’s violation of a statute which is designed to protect human life or property but which does not expressly create a cause of action is only prima facie evidence of defendant’s negligence. (Davis v. Marathon Oil Co. (1976), 64 Ill. 2d 380, 356 N.E.2d 93.) In such a case, contributory negligence or assumption of the risk will bar recovery unless the statute provides that these defenses are not available. (Barthel v. Illinois Central Gulf R.R. Co. (1978), 74 Ill. 2d 213, 384 N.E.2d 323.) If a statute expressly creates a cause of action, then proof of a violation of the statute is conclusive proof of defendant’s negligence. (Barthel v. Illinois Central Gulf R.R. Co. (1978), 74 Ill. 2d 213, 384 N.E.2d 323.) However, the supreme court in Barthel also held that ordinarily such a statute did not impose strict liability and did not eliminate the defense of contributory negligence. The court distinguished the statute involved in that case, the Public Utilities Act, which was designed to protect the general public, from such statutes as the Dramshop Act (Ill. Rev. Stat. 1977, ch. 43, par. 94 et seq.), the Structural Work Act (Ill. Rev. Stat. 1977, ch. 48, par. 60 et seq.), and the Child Labor Law (Ill. Rev. Stat. 1977, ch. 48, par. 31.1 et seq.), where the courts have found a legislative intent to impose strict liability, on the ground that those statutes were designed to protect, not the general public, but special classes such as children, intoxicated persons and employees who are unable to protect themselves.

Sections 4 and 6 of “An Act to protect workmen and the general public * * * during construction * * * of * ° * highways” provide:

“Any portion of highway or bridge which is closed to all traffic shall be marked at each place where vehicles have accessible approach to such portion of highway or bridge, and at a sufficient distance from the closed portion of such highway or bridge shall be marked with an adequate number of safe, suitable, and proper warning signs, signals or barricades as set forth in the Manual of Uniform Traffic Control Devices for Streets and Highways published by the Department of Transportation so as to give warning to approaching motorists that such portion of bridge or highway is closed and unsafe for travel.” (Ill. Rev. Stat. 1973, ch. 121, par. 314.4.)
“Any contractor, subcontractor, or his authorized agent or driver of any motor vehicle who knowingly or wilfully violates any provision of this Act, shall be responsible for any injury to person or property occasioned by such violation, and a right of action shall accrue to any person injured for any damages sustained thereby; and in case of loss of life by reason of such violation, a right of action shall accrue to the widow of the person so killed, his heirs, or to any person or persons who were, before such loss of life, dependent for support on the person so killed, for a like recovery of damages sustained by reason of such loss of life.” Ill. Rev. Stat. 1973, ch. 121, par. 314.6.

Since section 6 is clearly designed to protect the general public and not a special class, it would appear that, following Barthel, the plaintiff would be required to prove that he had been in the exercise of due care. However, in the recent case of Kawolsky v. McDougal Hartmann Co. (1980), 84 Ill. App. 3d 410,405 N.E.2d 855, affd (1981), 84 Ill. 2d 461, the Third District Appellate Court in construing this statute held that since section 6 required the violation to be knowing or wilful, contributory negligence was not a defense. In Kawolsky, the trial court had dismissed a complaint which alleged that the defendant knowingly and wilfully violated section 4 of the act but which did not allege that plaintiff’s decedent had been in the exercise of ordinary care. The appellate court reversed.

We need not decide if Kawolsky is a correct statement of Illinois law, since it is not applicable here. The decision in Kawolsky was based on the fact the statute required the violation to be wilful and the complaint so alleged. In the present case, plaintiff merely alleged that defendant was guilty of certain specified “negligent acts and omissions.” There was absolutely no allegation of a wilful violation of the statute. Indeed, the plaintiff did not allege the violation of any statute until the day of the trial. Likewise, at trial the jury was instructed that there was a statute requiring that a closed portion of a highway be marked with an adequate number of warning signs or barricades and that “any contractor or his authorized agent who violates any provision of this Act shall be responsible for any injury to persons occasioned by such violation and a right of action shall accrue to any person injured for damages sustained thereby.” The instruction did not limit liability to occasions where the violation was wilful. Nor did any other instructions require the jury to find defendant’s violation of the statute to be wilful. Indeed, under the instructions the jury could have found for the plaintiff even if the defendant’s failure to maintain barricades at the time of the accident was involuntary and unknowing and the plaintiff was guilty of contributory negligence or even guilty of wilful misconduct. Even Kawolsky did not so hold.

In addition, while the issue was not raised by the defendant, it is doubtful whether there was any evidence presented of any statutory violation. Section 4 of the Act requires the contractor to comply with the requirements set forth in the Manual of Uniform Traffic Control. At trial the contractor was examined as to the requirements set forth in the contract and in certain plans made a part of the contract. There was no evidence that the requirements of the Manual were the same as those set forth in the contract and the plaintiff never argued that the defendant violated any requirements set forth in the Manual. The contract could, of course, create additional duties to the public, but a violation of these duties would not be a violation of sections 4 and 6 of the Act.

It is clear, therefore, that the trial court erred in refusing to submit the question of contributory negligence for jury consideration. Because, as we have already noted, it is not necessary to a disposition of this case, we do not consider whether we believe Kawolsky properly construed section 6 of the Act. We do note, however, that the court in Kawolsky, 84 Ill. App. 3d 410, 415, 405 N.E.2d 855, 859 concluded that: “Neither workmen nor the general public can protect themselves from injury where a highway • * * has been closed without warning signs or devices unless all persons proceed upon all highways * ° * at all times as though construction obstructions are to be expected without warning. To impose such a standard of due care upon all drivers would be totally unrealistic.” This reasoning would seem to be inapplicable where the driver admittedly was aware that the highway was under construction.

Accordingly the judgment of the trial court is reversed and the case remanded for further proceedings in accordance with this opinion.

Reversed and remanded.

JIGANTI and LINN, JJ., concur.

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING

JUSTICE ROMITI

delivered the opinion of the court:

Plaintiff has filed a motion for rehearing relying on the Supreme Court’s affirmance of Vegich v. McDougal Hartmann Co. (1981), 84 Ill. 2d 461, 419 N.E.2d 918. We are, of course, bound by the Illinois Supreme Court’s holding that the statute creates strict liability if the conditions laid down in the statute are present. However, as we held in our initial opinion, the statute is at present inapplicable in this case for the reasons set forth in that opinion. Plaintiff contends that he did, in fact, amend his complaint to set forth the statutory action. This may be true, but this court is bound by the record. (2 Ill. L. & Prac. Appeal ir Error secs. 511, 514 (1953).) We have searched the record and have been unable to find therein any amended complaint alleging a statutory cause of action. In any event, as we held in our original opinion, plaintiff failed to produce evidence establishing the statutory cause of action or submit appropriate instructions adequately and accurately setting forth the provisions and requirements of the statute, including the knowing or wilful violation thereof.

Petition for rehearing denied.

JIGANTI and LINN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE McGLOON

license: Public Domain

text:
    BARTON CHEMICAL CORPORATION, Plaintiff-Appellee, v. PENNWALT CORPORATION, Defendant-Appellant.
    First District (1st Division)
    No. 81-941
    Opinion filed May 17,1982.

      Steven D. McCormick and Stanley L. Ferguson, both of Kirkland & Ellis, of Chicago, for appellant.
    Allen C. Engerman and Barry A. Erlich, both of Engerman, Erlich & Berman, Ltd., of Chicago, for appellee.
   JUSTICE McGLOON

delivered the opinion of the court:

Barton Chemical Corporation (Barton) brought an action against Pennwalt Corporation (Pennwalt), alleging that Pennwalt overcharged on its sales of industrial chemicals to Barton during 1976. Barton argued that its contract with Pennwalt was a fixed-price contract. Pennwalt maintained that the contract was price adjustable. The trial court, sitting without a jury, awarded Barton damages of $65,000, the difference between the contract price and market price which Barton paid to Pennwalt and another chemical company during 1976 for chemicals for use in its internal manufacturing business. In addition, the trial court awarded Barton damages of $27,723 for hypothetical lost profits on additional chemicals Barton claims it would have purchased and resold if the agreed upon prices had been charged. Pennwalt now appeals. Barton cross-appeals.

On appeal, Pennwalt argues that: (1) the trial court’s ruling that Pennwalt was required to charge 1975 prices for sales to Barton during 1976 was against the manifest weight of the evidence; and (2) the trial court erred in awarding Barton damages for hypothetical lost profits. In its cross-appeal, Barton claims that the trial court should have based its damages award, on the maximum quantities of chemicals Barton was entitled to purchase under the contract.

We affirm in part, as modified, and reverse in part.

Barton purchases industrial chemicals for use in manufacturing bleach and other household and automotive products. Additionally, it purchases chemicals and resells them in bulk. Barton began purchasing chemicals from Pennwalt in 1970. In December of 1973, Barton and Pennwalt entered into written contracts for the sale of liquid chlorine and caustic soda for the calendar years 1974 and 1975.

On October 21, 1974, Pennwalt’s regional sales manager, Robert Rowe, wrote a letter to Barton’s president, Jerome Engerman, confirming that the contract would be extended through 1976. The letter stated that on November 1,1974, Pennwalt would raise the price of liquid chlorine to $92.50 per ton and caustic soda to $100 per ton. The quantity terms for chlorine and soda were raised to 3,000 tons per year and 3,800 tons per year respectively. Further, the letter stated that “all other terms and conditions of our current contract [will remain] unchanged [for 1976].” In the contract referred to in the letter, a clause giving Pennwalt the right to adjust prices had been stricken.

In January of 1976, Pennwalt refused to sell chemicals to Barton at the prices set forth in the October 21 letter. Barton filed suit against Pennwalt in the circuit court of Cook County but continued to purchase chemicals from Pennwalt throughout the year. Pennwalt charged Barton $122 per ton for chlorine throughout 1976. For soda, Pennwalt charged between $139.50 and $160 during 1976. Barton purchased some of its chlorine from another chemical company, F.M.C., for $115 per ton. In 1976, Barton did not resell any of its chemicals in bulk.

Simply stated, the trial court ruled that the parties had agreed to a firm price provision and Pennwalt, therefore, should have charged Barton 1975 prices for deliveries during 1976. The trial court awarded Barton a total of $92,723 in damages. Sixty-five thousand dollars ($65,000) of the award represents the actual tonnage quantities of liquid chlorine and caustic soda purchased during 1976 from Pennwalt and F.M.C. multiplied by the difference between the prices charged by Pennwalt and F.M.C. during 1976 and the prices quoted in the letter of October 21, 1974. The remaining $27,723 of the award represents the profits Barton claimed it would have made on resales if Pennwalt had charged the agreed upon price. The trial court computed the average percentage of liquid chlorine and caustic soda resold during the previous five years, multiplied the average annual percentage by the actual tonnage quantities purchased by Barton in 1976 and awarded as damages the difference between the contract prices and market prices for the quantities purchased. Pennwalt appeals. Barton cross-appeals only with respect to the amount of damages awarded.

First, Pennwalt argues that the trial court’s ruling that Pennwalt was required to charge 1975 prices for chemical sales during 1976 was against the manifest weight of the evidence. Pennwalt claims that the parties’ past dealings show that they intended that there would be price adjustments during 1976. It maintains that Barton is entitled to no damages. Barton argues that under the terms of the 1976 agreement, it was not required to agree to any price increases. In its cross-appeal, Barton claims that the trial court should have based its award of damages on the maximum quantity amounts available under the contract, rather than on the amounts it actually purchased from Pennwalt and F.M.C. during 1976.

In the October 21, 1974, letter from PennwHlt’s regional sales manager to the president of Barton, the terms of the agreement for 1975 shipments of liquid chlorine and caustic soda were set forth. This letter also stated that the contract terms would be extended through 1976. The letter provided that Pennwalt would charge $92 per ton for liquid chlorine and $100 per ton for caustic soda. Further, it provided that Barton could purchase a maximum of 3,000 tons per year of liquid chlorine and 3,800 tons per year of caustic soda. Additionally, the letter specifically stated that “all other terms and conditions of our current contract remain unchanged.” The contract referred to in the letter had been entered into in January of 1974. In that contract, a clause giving Pennwalt the right to raise prices had been stricken.

Testimony given by witnesses at trial indicates that because of rapidly fluctuating prices in the chemical industry, sales agreements in the industry are characteristically “loose” agreements. Prices often are adjusted to reflect market conditions. On numerous occasions between 1970 and 1975, the president of Barton had voluntarily agreed to price increases when he deemed them appropriate. In fact, during 1974 Barton twice accepted price increases despite the firm price term contained in the contracts.

Because of their prior business dealings, Pennwalt assumed that Barton would continue to agree to its suggested price increases. Because the price adjustable clause had been stricken from the contract, however, it was Barton’s prerogative to refuse to purchase the chemicals at the higher prices. The fact that Barton in the past had agreed to price adjustments did not obligate it to agree to increases during 1976. We believe that Pennwalt was bound by the terms of its agreement to deliver Barton’s requirements at the agreed upon prices. The trial court’s ruling that Pennwalt was required to charge 1975 prices for deliveries of chemicals during 1976 was not against the manifest weight of the evidence.

Second, Pennwalt argues that the trial court erred in awarding Barton damages for hypothetical lost profits. The trial court accepted Barton’s argument that if Pennwalt had sold the chemicals to Barton at the contractually agreed upon prices, Barton would have purchased and resold additional chemicals. The trial court computed the percentage of liquid chlorine and caustic soda which Barton had purchased from Pennwalt for resale purposes in the previous five years. It then multiplied the average annual percentage by the quantities Barton purchased in 1976 and awarded as damages the difference between the contract prices and average market prices for the quantities purchased. Barton urges that the trial court should have applied the damage formula to the maximum number of tons of chemicals that Barton had been entitled to purchase under the contract.

We reject Barton’s suggestion that the computation of damages should have been based on the maximum allowable tonnage. The parties’ contract was a partial requirements contract under which Barton was not obligated to purchase any chemicals. Barton had been purchasing chemicals from Pennwalt for five years. In none of these five years did Barton purchase the maximum tonnage available. In fact, in 1975 it purchased less than 20 percent of the contract maximum.

In 1976, all of the liquid chlorine and caustic soda which Barton purchased was used by Barton for its internal manufacturing process. None was resold in bulk. Barton’s vice-president of sales, John Deamer, testified that the company would have purchased and resold a substantial amount of chemicals in bulk if Pennwalt had not refused to supply the chemicals at the contract prices. A review of the record indicates that Barton made significant chemical resales in only one year of its corporate existence. In 1974, approximately two-thirds of the tonnage of liquid chlorine and caustic soda which Barton purchased was resold in bulk quantities. In 1975, Barton resold less than 10% of the quantity of chemicals it had resold in 1974.

Under Illinois law, lost profits may be an appropriate item of damages where the amount can be determined with reasonable certainty. (See Evra Corp. v. Swiss Bank Corp. (N.D. Ill. 1981), 522 F. Supp. 820; Rivenbark v. Finis P. Ernest, Inc. (1976), 37 Ill. App. 3d 536, 346 N.E.2d 494.) Given the fact that Barton’s resale business varied greatly from year to year, it is impossible to determine whether Barton would have resold chemicals during 1976 if Pennwalt had sold said chemicals at the contract prices. Barton produced no proof of preexisting resale contracts or orders. Nor did Barton produce any evidence regarding the expenses it would have incurred in reselling the product. Without such evidence, it is impossible for us to determine with reasonable certainty the amount of profits which Barton would have realized in its resale business during 1976. We find, therefore, that an award of damages for hypothetical lost profits was improper.

We now turn to the question of the amount of damages to which Barton is entitled. The agreement between the parties, as stated in the letter of October 21,1974, was that Pennwalt would sell liquid chlorine at $92.50 per ton and caustic soda at $100 per ton. Pennwalt delivered 440 tons of chlorine to Barton and charged $122 per ton. Barton also purchased 380.6 tons of chlorine from F.M.C. at $115 per ton.

During 1976, Pennwalt charged Barton three different prices for caustic soda. Barton purchased 34.89 tons of soda at $160 per ton; 234.55 tons at $140 per ton; and 591.21 tons at $139.50. Under section 2 — 713(1) of the Uniform Commercial Code, Barton is entitled to the differences between the prices it actually paid and the contract price for each of its purchases. (Ill. Rev. Stat. 1979, ch. 26, par. 2 — 713(1).) Barton therefore is entitled to damages in the amount of $21,543.50 on its purchases of liquid chlorine and $34,828.20 on its purchases of caustic soda, for a total of $56,371.70. In addition, Barton is entitled to costs plus interest. The interest is to run on the amount of $56,371.70 from March 15,1981, the date on which the original order was entered.

In sum, we find that Barton is entitled to damages in the amount of $56,371.70, the difference between the contract prices and market prices for the quantities of liquid chlorine and caustic soda actually purchased during 1976. In this regard, the trial court award is affirmed, as modified. Additionally, we find that Barton was entitled to no damages for its hypothetical losses in its resale business. On this issue, the trial court’s ruling is reversed.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed in part, as modified, and reversed in part.

Judgment affirmed in part, as modified, and reversed in part.

CAMPBELL, P. J., and GOLDBERG, J., concur.

       Purchases from Pennwalt:
      440 x ($122 - $92.50) = $12,980.00
      Purchases from F.M.C.:
      380.6 x ($115 - $92.50) = 8,563.50
      $21,543.50

       Purchases from Pennwalt:
      34.89 x ($160 - $100) = $ 2,093.40
      234.55 x ($140 - $100) = 9,382.00
      591.21 x ($139.50 - $100) = 23,352.80
      $34,828.20


author: JUSTICE KASSERMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. LESTER WALLACE, Defendant-Appellee.
    Fifth District
    No. 81-202
    Opinion filed May 17, 1982.
    Donald Weber, State’s Attorney, of Edwardsville (Martin N. Ashley and Raymond F. Buckley, Jr., both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
    Dunham, Boman & Leskera, of East St. Louis (John W. Leskera and Russell K. Scott, of counsel), for appellee.
   JUSTICE KASSERMAN

delivered the opinion of the court:

On July 17,1980, the defendant, Lester Wallace, was indicted for the offense of arson. The State alleged that on June 18, 1978, the defendant burned a residence located at 3128 West Point, Collinsville, Illinois, with intent to defraud an insurer.

On October 29,1980, the defendant filed a motion to suppress a tape recorded conversation between himself and his son-in-law, Wayne L. Colter. Mr. Colter, while serving a sentence for armed robbery at the Vienna Correctional Center, had told agents of the Illinois Division of Criminal Investigation that the defendant had paid him to set fire to the residence on West Point Street. In order to obtain evidence, the investigating agents equipped Mr. Colter with broadcasting and recording devices and on May 15,1980, recorded a conversation between Mr. Colter and the defendant. After hearing the evidence, the trial court denied the defendant’s motion to suppress, finding that (1) there was no violation of the defendant’s constitutional rights and (2) the State had complied with the statutes regulating the use of eavesdropping devices (Ill. Rev. Stat. 1979, ch. 38, par. 108A — 1 etseq.).

On May 4,1981, the defendant filed a motion in limine which sought to exclude evidence of other fires and insurance claims mentioned in the taped conversation. Defendant stipulated at the hearing on the motion that a 26-page transcript presented by the State accurately reflected the conversation. The defendant argued that the taped conversation was irrelevant and prejudicial and, therefore, should be excluded. The State urged that (1) the taped conversation was admissible because the defendant’s silence constituted an admission regarding the charged offense and (2) the discussion concerning arson for profit demonstrated the relationship of the parties, the defendant’s knowledge of the fires, and the existence of a continuing scheme. The trial court granted the defendant’s motion in limine and excluded the conversation in its entirety stating:

“The Court finds that the matters are not relevant. The prejudicial effect of that tape would deprive the Defendant of a fair trial, and from a careful review of the tape it is in the Court’s opinion a discussion of hypothetical situations or matters, and not admissions.”

Pursuant to Supreme Court Rule 604(a)(1) (73 Ill. 2d R. 604(a)(1)), the State appeals this ruling.

The defendant contends that the order excluding the taped conversation is an evidentiary ruling which the State may not appeal under Supreme Court Rule 604(a)(1). (People v. Van De Rostyne (1976), 63 Ill. 2d 364, 349 N.E.2d 16.) However, our supreme court has held that “Rule 604(a)(1) allows an interlocutory appeal by the State of a pretrial suppression order whenever the prosecutor certifies to the trial court that the suppression substantially impairs the State’s ability to prosecute the case.” (People v. Young (1980), 82 Ill. 2d 234, 247, 412 N.E.2d 501, 507.) We find Young to be dispositive of this contention; therefore, we hold that the State may appeal the exclusion order entered in the instant case.

While recognizing that Young extended the State’s right to appeal from a pretrial order excluding evidence, the defendant argues that its holding is limited to orders involving constitutional or statutory considerations and that the State may not appeal from pretrial orders which, as here, are based solely upon evidentiary considerations. We disagree. In deciding that it is not necessary to restrict interlocutory appeals to search and seizure questions, the court in Young observed that refusing to allow an interlocutory appeal from an order suppressing admissible evidence may seriously impair the State’s ability to present its case and further expressed concern that without the guidance and uniformity imposed by reviewing courts, erroneous interpretations and rulings may proliferate at the trial court level. (82 Ill. 2d 234, 246-47, 412 N.E.2d 501, 507.) The reasoning and concerns of the Illinois Supreme Court in Young compel the conclusion that the court intended to permit the State to appeal from pretrial exclusion orders involving evidentiary questions, as well as statutory and constitutional considerations. Therefore, we reject the defendant’s attempt to distinguish Young on this ground.

The State contends that the trial court erroneously suppressed the taped conversation between the defendant and Mr. Colter. In support of this contention the State advances two theories. First, it is argued that a portion of the conversation can be construed as a tacit or implied admission of guilt on the part of the defendant. The State also argues that portions of the conversation alluding to other fires were admissible as showing motive, modus operandi, and the relationship between the parties.

The State maintains that the following excerpt constitutes a tacit admission by the defendant which should have been admitted into evidence:

“C/S [Colter]: Did that fucking insurance ever pay off on that house I burned?
Wallace [Defendant]: No.
C/S: Never paid you nothin’ huh?
Wallace: Never got a dime. Not on mine — Sue got hers.
C/S: No, I’m talking about that one on West Point.
Wallace: Oh, West Point, yeah, we got—
C/S: The one I burned.
Wallace: Yeah, I’m talking about the one out here on Princeton. Hell, we had another one since then, you know.
C/S: What’d you do, get rid of that motherfucker?
Wallace: Huh?
C/S: Did you have that one done?
Wallace: No, hell, no. Somebody burned mine and Sue’s the same damn night. Sue moved out over to Missouri (U/T) to Indiana and Saturday night, I believe it was on Saturday night, hers burnt and an hour and ten minutes later, mine burnt down on Princeton.
C/S: Did you tell Jim that you had me burn that house on West Point?
Wallace: Hell, no.
C/S: I was just wondering ’cause, uh, not too long [ago] I got locked up, (U/T) mention something to me that he thought you had that house burned.
Wallace: Oh, fuck no.
C/S: And I said I didn’t know and he said you was going to be in for a surprise ’cause the insurance wasn’t going to pay off or something.
Wallace: The insurance did pay off.
C/S: It did pay off?
Wallace: It took nine months or so to get it through. They didn’t think it would (U/T).
Wallace: It finally paid off.
C/S: I didn’t think you told anybody.
Wallace: Oh, why you know I ain’t that full of shit to tell nobody. I don’t know shit. I don’t know who done that. As far as me knowing, I don’t even know, I don’t know that you did that or somebody else (U/T).
C/S: All you did was stand there and watch them, didn’t you?
Wallace: Shoot, nobody’s gonna know that. They can’t tell me what I know, I don’t know nothin’ man.
Wallace: But this one down here, mine and Sue’s, that was a coincidence there, because I’d swear before man and God I know nothing about that. I was getting ready to move into that house up there. You know the one I’m talking about, 3111, right across from Richard and Donna’s.
C/S: Yeah. That’s the one behind the station.
C/S: Yeah. It burned?
Wallace: Yeah, it burned. Gutted it all out. Practically burned it to the ground. (U/T). Some kids went down there and piled up paper in the basement and set the damn stuff on fire (U/T).”

In the order appealed from, the trial court found that no admission was made during this conversation.

Evidence should be received under the tacit admission rule only when it is clearly admissible. (People v. Aughinbaugh (1967), 36 Ill. 2d 320, 322-23, 223 N.E.2d 117,119; People v. Deberry (1977), 46 Ill. App. 3d 719, 721, 361 N.E.2d 632, 634.) While evasive, equivocal or unresponsive replies to accusations of crime may, like silence, constitute an admission, an unequivocal denial of the charge is not admissible, nor is a strong showing of nonacquiescence in the statement. People v. Morgan (1976), 44 Ill. App. 3d 459, 462-64, 358 N.E.2d 280, 283-84.

We conclude that the above-quoted dialogue is sufficient to constitute an admission of guilt on the part of defendant. Both the accusation of criminality and the defendant’s response are not ambiguous so as to justify a conclusion that the defendant had not admitted his guilt. Indeed, the defendant admitted the offense charged when he responded to Mr. Colter’s remark that he (Colter) did not think defendant had told anyone about the house being set afire. In effect, defendant replied to the inquiry as to whether he had told anyone by saying that he wás.not that dumb. Further, when Mr. Colter remarked to defendant that all he (defendant) did was to stand there and watch them, defendant replied: “Shoot, nobody’s gonna know that. They can’t tell me what I know, I don’t know nothin’ man.” Such statements go beyond silence on the part of a defendant when faced with an accusation of guilt. The substance of the quoted conversation is that defendant and Colter were discussing the burning of a house by Colter for defendant.

Because of our conclusion that the quoted verbal exchange between Mr. Colter and defendant constitutes an admission of guilt on the part of the defendant, we need not consider the State’s assertion that certain other portions of the conversation which concerned the crime of arson for profit were admissible as establishing motive, modus operandi, and the relationship between the parties.

For the above stated reasons, the judgment of the circuit court of Madison County is reversed and this cause is remanded to the circuit court of Madison County for further proceedings not inconsistent with this opinion.

Reversed and remanded.

JONES and HARRISON, JJ., concur.


text:
    JOSEPH FAVATA, JR., Plaintiff-Appellant, v. EDWARD ROSENBERG et al., Defendants-Appellees.
    First District (1st Division)
    No. 81-262
    Opinion filed May 17,1982.
    Erwin Grombacher and Thomas J. Anselmo, both of Chicago, for appellant.
    Dennis C. Waldon and Gerald A. Niederman, both of Roan & Grossman, of Chicago, for appellees.
   JUSTICE McGLOON

delivered the opinion of the court:

Plaintiff appeals from the dismissal of his complaint in a legal malpractice action. The issues raised on appeal are (1) whether a nonclient may maintain an action against an attorney for malpractice; and (2) whether the Illinois Constitution mandates the creation of an action where none exists.

We affirm.

Plaintiff was an intended beneficiary of an amended land trust agreement drafted by an attorney in the defendant partnership. The amendment to the trust agreement was declared invalid and as a result plaintiff took nothing under the trust. The judgment of the trial court was affirmed in Favata v. Favata (1979), 74 Ill. App. 3d 979,394 N.E.2d 443 (McGloon, J., dissenting in part).

Thereafter, plaintiff filed a legal malpractice action. The complaint alleged that defendant Lake negligently drafted the amendment to the trust, that defendants Rosenberg and Kosin were negligent in their supervision of Lake, and that defendants’ negligence wrongfully deprived plaintiff of his interest in the trust property.

Defendants filed a motion to dismiss for failure to state a cause of action pursuant to section 45 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 45). The trial court granted defendants’ motion and dismissed the complaint with prejudice on the grounds that defendants owed no duty to plaintiff and that the action, if allowed, would pave the way for a multitude of actions and unlimited liability.

Plaintiff first contends that the trial court erred in dismissing the complaint. He maintains that an attorney owed a duty to intended beneficiaries of trusts and the complaint therefore stated a cause of action. Alternatively, plaintiff contends the complaint stated a cause of action under a third-party beneficiary theory.

The issue presented in this case has not been addressed by any Illinois court directly. However, the nature of an attorney’s relationship with his client, the scope of an attorney’s duties, and persons to whom a duty is owed were discussed in Christison v. Jones (1980), 83 Ill. App. 3d 334,405 N.E.2d 8; Bloomer Amusement Co. v. Eskenazi (1979), 75 Ill. App. 3d 117, 394 N.E.2d 16; and Byron Chamber of Commerce v. Long (1981), 92 Ill. App. 3d 864, 415 N.E.2d 1361. In Christison, the court noted that the relationship between an attorney and his client is personal and confidential and that an attorney owed his client the utmost fidelity. The court further stated that the substance of a malpractice action is a client’s claim that his attorney breached his personal duty and trust to that client by failing to exercise the requisite degree of care and skill or by failing to give the utmost loyalty and fidelity to the client’s interest. (83 Ill. App. 3d 334,338,405 N.E.2d 8,11.) Citing National Savings Bank v. Ward (1880), 100 U.S. 195, 25 L. Ed. 621, the court in Bloomer held that an attorney owed a duty to his client only and that in the absence of fraud, collusion, or acts of negligence dangerous to the lives of others, a third-party nonclient cannot maintain an action against an attorney for negligence. (Bloomer Amusement Co. v. Eskenazi (1979), 75 Ill. App. 3d 117,119,394 N.E.2d 16, 18.) The general rule followed in Illinois was stated most succinctly in Byron, where the court stated that a contract for professional services between a lawyer and client does not create a professional obligation between the lawyer and an unknown third party. Byron Chamber of Commerce v. Long (1981), 92 Ill. App. 3d 864, 868, 415 N.E.2d 1361, 1365.

The conclusion to be drawn from these cases is that an attorney owes a professional duty only to his client. In the absence of a duty to a third-person nonclient, no cause of action based on negligent performance of professional services can exist. Furthermore, in accord with the court’s statement in Byron we reject plaintiff’s contention that a cause of action was stated based on a third-party beneficiary theory. We therefore find that the trial court did not err in dismissing the complaint.

Plaintiff has urged this court to adopt the California approach to this issue. Under California law, an attorney’s duty to use ordinary care, judgment, skill, and diligence in the performance of professional tasks extends not only to his client, but also to intended testamentary beneficiaries. (Heyer v. Flaig (1969), 70 Cal. 2d 223, 449 P.2d 161, 74 Cal. Rptr. 225; Lucas v. Hamm (1961), 56 Cal. 2d 583, 364 P.2d 685, 15 Cal. Rptr. 821; Biakanja v. Irving (1958), 49 Cal. 2d 647,320 P.2d 16.) The action may be maintained on either a contractual theory of third-party beneficiary or a tort theory of negligence. (Heyer v. Flaig (1969), 70 Cal. 2d 223, 449 P.2d 161, 74 Cal. Rptr. 225.) In Bucquet v. Livingston (1976), 57 Cal. App. 3d 914,129 Cal. Rptr. 514, the rule was extended to the trust field.

However, we decline to adopt California law in this area. Illinois law at this time appears to restrict an attorney’s liability in negligence to his client only. Also, we are hesitant to extend liability to a nonclient because of the personal nature of the attorney-client relationship and the potential for conflicts of interest which might arise if such liability were extended to nonclients. See Horan and Spellmire, Lawyers Liability in Illinois: Current Legal Issues, 69 Ill. B. J. 200, 203 (1980).

Second, plaintiff contends that article I, section 12 of the 1970 Illinois Constitution requires that he be provided a remedy for injuries suffered because of defendants’ negligence. However, this section of the constitution is an expression of philosophy and does not mandate the creation of an action and remedy where one did not formerly exist. (Koskela v. Martin (1980), 91 Ill. App. 3d 568, 414 N.E.2d 1148; Angelini v. Snow (1978), 58 Ill. App. 3d 116, 374 N.E.2d 215.) Thus, plaintiff’s contention is without merit.

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

Judgment affirmed.

CAMPBELL, P. J., and GOLDBERG, J., concur.


author: JUSTICE HEIPLE

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. GLEN MALONE, Defendant-Appellee.
    Third District
    No. 81-564
    Opinion filed May 12,1982.
    Modified on denial of rehearing June 15,1982.
    Edward Zukosky, State’s Attorney, of Lacón (John X. Breslin, of State’s Attorneys Appellate Service Commission, of counsel), for the People.
    John A. Grivetti, Jr., of The Legal Center, Grivetti & Associates, of Peru, for appellee.
   JUSTICE HEIPLE

delivered the opinion of the court:

Glen Malone was charged with reckless homicide for allegedly striking the rear of Shirley Greer’s car and forcing that vehicle into the passing train which resulted in her death. Three days after the accident, a search warrant was obtained to search Malone’s car and seize components thereof which were to be tested and used as evidence at the trial. Prior to trial, Malone moved to quash the warrant and suppress the evidence seized. Malone’s motion was granted and the State appeals this ruling.

Close to midnight on May 8, 1981, an accident occurred at the intersection of Illinois Route 26 and Santa Fe railroad tracks six miles south of Lacón in Marshall County, Illinois. When George E. Crank, chief investigator for the sheriff of Marshall County, arrived at the scene, he observed two vehicles: a 1976 red and white Oldsmobile and a 1973 blue Chevrolet. The Oldsmobile had been driven by Shirley Greer. It had struck the train and been dragged two miles, caught fire and burned. Shirley Greer was pronounced dead at the scene. The blue Chevrolet was found by Officer Crank 200 yards from the tracks with extensive front end damage. Officer Crank impounded the blue 1973 Chevrolet and had it towed to Jim’s Body Shop on Route 29 in Henry, Illinois.

Three days later Deputy Sheriff Crank filed a complaint for a search warrant for the blue 1973 Chevrolet. We set out the complaint in full as follows:

“George E. Crank of the Marshall County Sheriff’s Office, Complainant, now appears before the undersigned Circuit Judge of the Tenth Judicial Circuit of Illinois and requests the issuance of a Search Warrant to search a 1973 four-door Chevrolet automobile, Vehicle Identification No. 1L69H3S217874, Vehicle Registration No. 235847, located at Route 29, South Edge of Henry, Marshall County, Illinois, and seize the following from said 1973 Chevrolet automobile: speedometer assembly, headlights, paint scrappings [sic] off front end, debris off front end, grill and rear tail lights; and to inspect and examine the windshield wipers and braking system which constitute evidence or fruits of the offense of Reckless Homicide by Glen Malone, defendant, in violation of Sec. 9 — 3(a) Chapter 38 of the Illinois Revised Statutes.
I further say that I have probable cause and reasonable cause to believe, and do believe, that the above-listed items to be seized are now located on the premises described above, because of the following facts:
I am Chief Investigator for the Marshall County Sheriff. At approximately 12:30 a.m. on May 9, 1981, I was called to investigate a traffic collision which occurred on Route 26 at the Santa Fe tracks about six miles south of Lacón, Marshall County, Illinois. When I arrived at the scene, I observed that the vehicles involved were the above-described 1973 Chevrolet, a blue four-door automobile bearing Illinois Vehicle Registration No. 235847 and Vehicle Identification No. 1L69H3S217874, and a 1976 Oldsmobile Cutlass, red and white, two-door automobile, bearing Illinois Vehicle Registration No. IA 933 and Vehicle Identification No. 3G37R6M387296, which was driven by Shirley Greer. Shirley Greer was dead at the scene.
The physical evidence at the scene showed that the 1973 Chevrolet automobile was driven northbound by Glen Malone as it approached the Santa Fe tracks about six miles south of Lacón in Marshall County as aforesaid. The 1976 Oldsmobile Cutlass driven by Shirley Greer had stopped in the northbound lane at said Railroad tracks in response to the red flashing railroad lights while a freight train was passing and defendant Glen Malone, who was driving at a speed that was greater than was reasonable and proper with regard to the existing traffic and conditions and the safety of persons properly upon the roadway, drove his automobile in and against the rear end of the automobile driven by Shirley Greer, causing the said automobile driven by Shirley Greer to crash into a train, causing the death of said Shirley Greer.
The said 1973 Chevrolet automobile was driven from the scene to a point approximately 200 yards north of the Santa Fe Railroad tracks, where it was observed by this Affiant. This Affiant observed extensive damage to the front end of said 1973 Chevrolet automobile and this Affiant had the said vehicle towed to Jim’s Body Shop, which is located on Route 29 at the south edge of Henry, Marshall County, Illinois.
That the said 1976 Oldsmobile automobile was dragged by the train for approximately two miles, with decedent in said automobile. Her automobile was demolished, had caught fire, and burned her causing her death.
The Department of Law Enforcement of the State of Illinois now has a procedure whereby they can determine the speed of a vehicle at the time of impact by examination of the speedometer assembly. A determination of the speed of the 1973 Chevrolet automobile is crucial to the investigation of this collision.
The Department of Law Enforcement now has a procedure whereby they can examine the headlights and the tail lights and determine whether the lights were lit at the time of the collision. A determination as to whether the tail lights and headlights were lit at the time of the collision is crucial to the investigation of this collision.
The Affiant also desires to have paint scrappings [sic] to confirm whether the 1973 Chevrolet automobile was involved in a collision with the said 1976 Oldsmobile. The naked eye can observe paint on the 1973 Chevrolet which obviously does not belong there and could have been transferred to said automobile as a result of said collision.
The naked eye can observe paint on debris found at the scene of the collision which this Affiant believes matches the paint on the 1976 Oldsmobile and the 1973 Chevrolet. I also desire to take all debris off the front end of the 1973 Chevrolet to confirm whether that 1973 Chevrolet was involved in a collision with the said 1976 Oldsmobile.
I also desire to have the windshield wipers and the braking system tested and examined.
Affiant also desires to take the grill of said 1973 Chevrolet for the propose of matching it with the debris found at the scene.
Therefore, I have probable cause and reasonable cause to believe and do believe that the speedometer assembly, headlights, paint scrappings [sic] off the front end, debris off front end, grill, the rear tail lights, the windshield wipers and the braking system are now located on the said 1973 Chevrolet located at Route 29 at the south edge of Henry, Marshall Couny [sic], Illinois, at Jim’s Body Shop and I pray that a Search Warrant for said 1973 Chevrolet may issue in accordance with law.
/s/ George E. Crank_
George E. Crank, Complainant.”

Glen Malone was charged with reckless homicide the day before the complaint for the search warrant was filed. He was later indicted for the same offense in two counts. On Malone’s motion, the trial court quashed the search warrant because it felt that there were “insufficient facts alleged in the complaint to cause a reasonable man to believe a crime had been committed and that evidence was in a place to be searched.” We agree with the trial court that the lengthy complaint for the search warrant is comprised to a great degree of conclusions and opinions. However, we believe enough facts are stated to cause a reasonable man to believe that the automobile parts sought may constitute evidence of a crime. The probable cause for the issuance of a search warrant can be shown by less evidence than is required for a conviction. (People v. Close (1965), 60 Ill. App. 2d 477.) Moreover, common sense must not be abdicated in our analysis of search warrant sufficiency.

What facts can we glean from this complaint? Admittedly, the complainant, Officer George Crank, was not present at the precise time of the accident. But this does not mean that he cannot attest to circumstances of the accident. When Officer Crank arrived shortly after the accident, he found evidence of what occurred. First, he observed two vehicles. One was a vehicle driven by Shirley Greer. It appeared to have hit the train and then been dragged by the train a distance of two miles. The other vehicle was a blue 1973 Chevrolet. Officer Crank found the blue Chevrolet 200 yards north of the railroad tracks with extensive damage to the front end of the car. Moreover, the complaint alleges the fact that Crank observed paint of a different color on front portions of the blue Chevrolet. Officer Crank had the blue Chevrolet impounded and towed to Jim’s Body Shop in Henry, Illinois. This Chevrolet was identified in the complaint not only by year and color, but also by vehicle registration number.

We believe these facts and circumstances provide a reasonable basis to further investigate the car to determine its involvement, if any, in the tragic accident that claimed the life of Shirley Greer. The proximity of the blue 1973 Chevrolet to the accident site, together with extensive front end damage and foreign paint substances apparent thereon suggests a collision with another vehicle. While we cannot say that the car was involved in the accident beyond a reasonable doubt, such is not the standard. (33 Ill. L. & Prac. Searches and Seizures secs. 53-55 (1970, 1981 Supp.).) Probability, not prima facie showing, of criminal activity is the standard of probable cause for issuance of a search warrant. (People v. Beck (1975), 28 Ill. App. 3d 782.) We believe this standard is demonstrated by the aforestated facts which were set forth in the sworn complaint for the search warrant.

Malone argues that the complaint includes no facts to show probable cause that some crime occurred. The fourth amendment to the United States Constitution does not prohibit all searches, only those which are unreasonable. In this case the search was not unreasonable. We believe it apparent from the circumstances described in the complaint that reasonable men could suspect that criminal activity was involved in Shirley Greer’s collision with the train. While accidents do happen, suspicions are reasonably aroused when a car collides with an object as formidable as a moving locomotive. Such suspicion of criminal activity is strengthened considerably by the presence of another vehicle with extensive front end damage in the near vicinity of the railroad intersection. We believe this sufficient for a finding of probable cause that some crime occurred.

Malone concedes that the complaint is adequate regarding probable cause that the automobile parts sought are at the body shop in question. The complaint states that the complainant himself had the vehicle impounded and sent to Jim’s Body Shop in Henry, Illinois. It is precisely at that location that the complaint seeks to seize the parts.

The complaint does include speculation as to the details of the commission of the alleged crime. However, this does not denigrate the validity of the solid facts and circumstances alleged in the complaint which in themselves provide adequate grounds for issuance of the search warrant. The complaint states with specificity the components sought: speedometer, headlights, front end paint scrapings, debris from the front end, grill and rear taillights. The blue 1973 Chevrolet from which these items are sought was clearly identified by vehicle registration number and is the same car as was discovered by Officer Crank at the accident site.

For the reasons herein stated, we reverse the order of the trial court quashing the search warrant. We remand this cause for trial.

Reversed and remanded.

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


author:
JUSTICE LINN
      JUSTICE JIGANTI,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. NEAL WALLACE et al., Defendants-Appellants.
    First District (4th Division)
    Nos. 80-3142, 80-3143 cons.
    Opinion filed May 13,1982.

      JIGANTI, J., dissenting.
    Law Offices of Chester L. Blair, Chartered, of Chicago (Chester L. Blair, of counsel), for appellants.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat and Dean P. Karlos, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LINN

delivered the opinion of the court:

Following a joint bench trial in the circuit court of Cook County, defendants, Neal Wallace and Claude Ellis, were found guilty of the misdemeanor of tampering with a vehicle (Ill. Rev. Stat. 1979, ch. 95?z, par. 4 — 102). Each was sentenced to 364 days in the Cook County Department of Corrections.

Defendants appeal their convictions. The principal issues raised by defendants are (1) that the trial court erred in finding there was probable cause for the police to stop and search the defendants; (2) that the unverified complaints charging the defendants did not state an offense; (3) that the evidence was insufficient to prove defendants guilty beyond a reasonable doubt; (4) that the trial court erred in denying the defendants a new trial where they were compelled to go to trial with an attorney who was not adequately prepared to protect their rights and who waived a jury on their behalf without informing them of the consequences of such a waiver.

We reverse and remand for a new trial.

Defendants were sitting on the steps of a building on October 2,1980, when they were detained by a Chicago police officer. The complaining witness identified them to the officer as the two men he had seen earlier apparently touching and inspecting his automobile. Defendants were arrested and charged with the misdemeanor offense of tampering with a vehicle.

The formal complaints signed by the complaining witness were not verified. The complaints also contained an error in the statutory designation of the charge, and failed to identify the owner of the vehicle. During the trial and over defense objections, the trial court allowed the State to correct the statutory designation of the charge, verify the complaints, and identify the complaining witness as the owner of the automobile.

The record discloses that eight days after their arrest, defendants, without counsel, appeared in court for a hearing on the charges. The trial . court told them the matter was being “passed for trial.” An assistant State’s Attorney advised defendants to retain counsel, and told them a bar association lawyer was in court and was available to represent them. Shortly thereafter, an attorney introduced himself to defendants as the bar association counsel. Defendants agreed to his representing them and signed a cash bond refund form allowing the attorney to receive the bond proceeds in payment for his services. The attorney briefly interviewed defendants. The cases were then called for trial. The attorney filed his appearance on behalf of defendants, told the judge he was ready for trial, and on behalf of defendants entered a plea of not guilty and waived a jury trial. The trial court did not ask defendants whether they understood the significance of the jury waiver.

Initially, defense counsel moved to quash the arrest for lack of probable cause to stop and search the defendants. Officer Hunt was called by defendants to testify in support of their motion, and asserted that she had responded to a report of a “theft in progress.” She testified that after she arrived at the scene the complainant pointed to the defendants as the two men he had seen near his automobile who appeared to be examining it. Defendants contend that when approached by the police they were not involved in any conduct upon which probable cause for their arrest and search could be based.

It is true, as defendants claim, that the trial court somewhat prematurely terminated the examination of the police officer, declared that probable cause existed, denied the motion to quash the arrest, and directed that the trial proceed. Nevertheless, there was sufficient testimony in connection with the presentation of the motion to support the trial court’s ruling. The nature of the complaint to the police, the identification of the defendants by the complaining witness, and the totality of the circumstances were adequate to allow the trial court to find probable cause as it did. See People v. Willingham (1982), 89 Ill. 2d 352.

At trial the complaining witness testified that his neighbor had called him at 5:20 a.m. on October 2, 1980, and told him two men were tampering with complainant’s car. The complainant looked out his window and saw the larger of two men on the left side of his car motioning with his arms, and the smaller man looking inside the car with a flashlight. He immediately called the police and then went out to the street, where he saw what he believed to be the same two men walk to some nearby steps and sit down. He pointed them out to one of the police officers who had arrived on the scene, identifying defendant Wallace as the smaller man and defendant Ellis as the larger man. Complainant further testified that he examined his car and saw that the rubber on the window of his car was torn.

It was stipulated that the testimony given by Officer Hunt on the defendants’ motion to quash their arrest would apply to the trial. She had asserted that she too observed the tear of the rubber on the complainant’s car window, and also that she observed that a door lock was bent.

The prosecution evidence further disclosed that when the police arrived at the scene pursuant to complainant’s alarm, the defendants were seated on the steps of a building near complainant’s automobile. When the complaining witness identified the defendants to the officer as the two men he had seen earlier apparently touching and inspecting his car, the defendants were detained and searched. The police found a screwdriver in the pocket of defendant Wallace. On searching the nearby area, the police also found another screwdriver and a flashlight in the bushes near the steps where the defendants had been sitting when approached by the police.

Defendant Wallace testified that defendant Ellis had asked Wallace to accompany him to Ellis’s place of employment where Wallace could get work that day. He agreed to do so. On the way, they walked to the building at which they were arrested. They had gone into the building and had purchased some “reefer” to take with them. As they were leaving the building to continue their walk, the police approached them. Defendants immediately threw away the “reefer.” Wallace denied that he or Ellis was involved in any way with the complainant’s automobile.

At the conclusion of the trial the defendants were found guilty and each was sentenced to 364 days in jail. Shortly after conviction but before the presentation of post-trial motions, trial counsel for defendants was granted leave to formally withdraw, and he did so withdraw. New counsel filed a timely motion for a new trial. The motion was denied and this appeal followed.

It is defendants’ position that the complaints, which were filed in unverified form with an incorrect statutory designation and without describing the complainant as the owner of the automobile, were legally inadequate and failed to set forth an offense. It is within the discretion of the trial court to allow such amendments of a complaint as the trial court deems legally appropriate. The fundamental requirement is to afford the defendant sufficient knowledge and understanding of the charge against which he must defend to allow him to prepare his defense, and to allow him to raise a judgment of acquittal as a plea in bar should there be a later prosecution for the same offense. See People v. Clark (1981), 96 Ill. App. 3d 491, 421 N.E.2d 590.

We do not find that the amendment allowed by the trial court prejudiced defendants in any manner. It is clear that the basic charge against the defendants had not been altered in any significant way so as to impair their defense. No abuse of the trial court’s discretion in allowing the amendment has been established. Accordingly, we find no merit in defendants’ contention that the trial court erred in allowing the amendment.

Defendants also assert that the evidence presented at trial failed to establish defendants’ guilt beyond a reasonable doubt. We disagree. “[T]he prosecution has the burden of proving beyond a reasonable doubt all the material and essential facts constituting the crime.” (People v. Weinstein (1966), 35 Ill. 2d 467, 470, 220 N.E.2d 432, 434.) However, the requirement is that the proof must be beyond a reasonable doubt; it need . not be beyond any possibility of doubt. People v. Williams (1977), 66 Ill. 2d 478, 363 N.E.2d 801; People v. Branion (1970), 47 Ill. 2d 70, 265 N.E.2d 1.

The complaining witness testified that his car window rubber was damaged. He identified defendants as the men he had seen examining and apparently tampering with his car. One of the police officers called to the scene also testified to the damage to the car, and further testified that defendant Wallace had been found with a screwdriver in his pocket and that near the scene of the arrest another screwdriver and a flashlight had been found. In the absence of evidence to rebut or impeach such testimony, it was reasonable for the trial court to find defendants guilty beyond a reasonable doubt of tampering with a vehicle.

Defendants further claim that the trial court erred in not granting them a new trial because they were denied effective assistance of counsel. They contend their attorney was not prepared adequately to represent them properly, protect their rights, and establish their defense. We agree.

Whether defendants received effective assistance of counsel must be determined by examining the totality of the circumstances surrounding the trial. (People v. Atnip (1980), 82 Ill. App. 3d 758, 403 N.E.2d 95.) While the record fails to show the exact amount of time spent by trial counsel in preparation for trial, it is apparent from the record that, at best, the time devoted to preparation was minimal. It was on the very morning of trial that trial counsel met defendants for the first time. It appears that a short consultation with counsel was held. Time also was taken to negotiate the payment of attorney fees.

There is no indication in the record that any of the State’s witnesses were interviewed by defendants’ trial counsel. There is no indication in the record that any discovery was taken on behalf of defendants. It is clear that the complainant’s neighbor who allegedly alerted the complainant was neither interviewed by counsel for defendant, nor was he called to testify by the State. It is equally apparent that by proceeding with immediate trial counsel had no time to subpoena available police arrest records or even to examine the court file adequately.

The right to counsel is an empty one unless the attorney has a reasonable opportunity to prepare for trial. (People v. Price (1960), 24 Ill. App. 2d 364,164 N.E.2d 528.) Without adequate time to prepare for trial, a defendant is deprived of the effective assistance of counsel and denied due process. White v. Ragen (1945), 324 U.S. 760, 89 L. Ed. 1348, 65 S. Ct. 978; Powell v. Alabama (1932), 287 U.S. 45, 77 L. Ed. 158, 53 S. Ct. 55; People v. Dixon (1975), 26 Ill. App. 3d 487, 325 N.E.2d 673.

Considering all of the circumstances, including the time factors involved, the method of retention of counsel and preparation for trial, and the trial itself, we necessarily conclude that trial counsel’s representation of defendants in this case was so ineffective that it could well have changed the outcome of the trial. (People v. Talley (1981), 97 Ill. App. 3d 439, 422 N.E.2d 1084; People v. Scott (1981), 94 Ill. App. 3d 159, 418 N.E.2d 805.) Given sufficient time to prepare, defense counsel might have discovered that defenses existed which the testimony of one or more of the witnesses not interviewed or called could have established. The testimony of one of these witnesses might have created a reasonable doubt of defendants’ guilt.

All of the foregoing is not to say that in all cases where retention of counsel and trial is conducted within the time that elapsed here there is necessarily ineffective assistance of counsel. The accumulation of the particular factors in this case does, however, require that conclusion; accordingly, defendants should have been granted a new trial.

Because a remand of this case for the reasons discussed above is dispositive of this appeal, defendants’ remaining contentions for reversal need not be addressed. We believe that the errors claimed, if they occurred as charged, will not occur in a new trial. However, we do note that defendants raised the issue of whether their waiver of a jury trial was understandingly made. Upon retrial we know the trial court will recognize its duty to make certain that if a jury waiver is made by defendants, it is done with the understanding that they have a basic right to a trial by jury which they are voluntarily relinquishing. People v. Brownlow (1969), 114 Ill. App. 2d 458, 252 N.E.2d 685.

For the reasons set forth, we reverse and remand the case for a new trial.

Reversed and remanded.

JOHNSON, P. J., concurs.

JUSTICE JIGANTI,

dissenting:

There is some question in Illinois as to the appropriate standard to be applied when assessing the adequacy of appointed counsel. Recently in People v. Talley (1981), 97 Ill. App. 3d 439, 422 N.E.2d 1084, this court adopted a standard higher than that which had been previously used. The Talley court said that a defendant’s representation is not constitutionally deficient unless counsel was actually incompetent, the incompetence produced substantial prejudice to the defendant, and the result would probably have been different absent the incompetence.

In finding that the representation of the defendants in this case was incompetent the court engages in a great deal of speculation. It says that there is no indication in the record that the State’s witnesses were interviewed or that discovery was taken on behalf of the defendants. Further, the court states that the complainant’s neighbor was not interviewed and that counsel could not have examined the court file adequately because the arrest records were not subpoenaed. These charges of trial counsel’s incompetence arose by way of the defendants’ post-trial motion. The motion was not supported by affidavits and there was no request by counsel to present witnesses. The motion does not suggest how interviewing the State’s witnesses, if they would have consented to an interview, would have changed the result. Those witnesses were not interviewed in the interim between the trial and the post-trial motion. Counsel effectively examined the witnesses during the course of the trial. There is no showing of what discovery the defendants would have engaged in. The defendants were charged with an offense for which they could not have been sent to the penitentiary. Supreme Court Rule 411 (Ill. Rev. Stat. 1979, ch. 110A, par. 411) provides that the discovery rules apply only in those cases where the accused is charged with an offense for which, upon conviction, he might be imprisoned in the penitentiary. Discovery would be quite limited. (See People v. Williams (1981), 87 Ill. 2d 161,429 N.E.2d 487.) In the interim between the trial and the post-trial motion the complainant’s neighbor surely could have been interviewed to determine what if anything he would have said that would have been favorable to the defendant. In the interim counsel could have produced police arrest records and examined the file and demonstrated how, if these things had been done, the result would have been different. To state now that these matters might have affected the result is insufficient in my estimation to prove that counsel was inadequate and that but for this inadequacy the result probably would have been different.

The majority opinion states that the right to counsel is an empty one unless an attorney has a reasonable opportunity to prepare for trial and that without this opportunity he has been deprived of effective assistance of counsel. The court did not deny the defendants a reasonable opportunity to prepare for trial. The defendants retained counsel and he appeared and answered ready for trial. The court did not force the defendants to trial.

The majority opinion says that it must necessarily conclude that the representation was so ineffective that it could have well changed the outcome. In my view the representation was in fact quite competent. The defendants particularly have not shown that but for these items the result would probably have been different.


author: JUSTICE UNVERZAGT

text:
    THE CITY OF NORTH CHICAGO, Plaintiff-Appellee, v. NORTH CHICAGO NEWS, INC., Defendant-Appellant.
    Second District
    No. 81-624
    Opinion filed May 12,1982.

      Adam Bourgeois and Michael Null, both of Chicago, for appellant.
    Richard J. Smith, of Sullivan, Smith, Hauser and Noonan, of Waukegan, for appellee.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

This is an appeal from an order of the circuit court of Lake County permanently enjoining the defendant from selling or offering for sale 57 magazines which the trial court found were obscene. The judgment was the culmination of a lengthy procedural history which is detailed in full below as necessary background for the issues raised here.

On February 11, 1980, the plaintiff, City of North Chicago, filed a complaint in the circuit court of Lake County for temporary and permanent injunctions against G. L. Hobbies to enjoin it from continuing to sell obscene books, magazines and motion pictures, which practice had resulted in several prosecutions for violation of the North Chicago Obscenity Ordinance, thus constituting what the plaintiff alleged to be a nuisance for which there was no adequate remedy at law. North Chicago News, Inc., was later permitted to be substituted as defendant in an amended complaint filed on March 12,1980. The defendant filed a motion to strike and dismiss on April 2, 1980, and plaintiff moved for a preliminary injunction against defendant on May 7, 1980. On May 14, 1980, the trial court reserved its ruling on the motion to dismiss and allowed plaintiff time to file a bill of particulars or a second amended complaint specifying the publications of which it complained. Plaintiff’s second amended complaint, filed on May 29, 1980, specified nine magazines and two films which it alleged were sold or offered for sale by the defendant and were obscene. On June 17,1980, the defendant moved to strike and dismiss the second amended complaint; this motion was denied on June 17, 1980. Defendant filed its answer to the second amended complaint, and plaintiff filed a “Request for Production of Documents” on August 12, 1980, seeking inter alia one copy of each magazine or booklet which pictorially depicted nude male or female homosexual activities, oral-genital heterosexual activity, or bestiality. Plaintiff then moved for summary judgment on October 27, 1980, enumerating the sale date, title and price of 13 specific works and two films which it alleged to be obscene and/or pornographic in violation of the city’s ordinance. This motion was supported by five photographs of the interior of the defendant’s premises showing display racks holding apparently sexually explicit materials and various devices.

On December 1, 1980, the defendant filed its “Suggestions in Opposition to Plaintiff’s Motion for Summary Judgment,” which in essence alleged the attempted suppression of materials not previously judicially determined to be obscene was a violation of defendant’s first amendment rights, and that the materials in question are not “patently offensive” since a majority of Illinois adults consider it acceptable to purchase and view sexually explicit materials. That allegation was based on the results of a survey noted in People v. Nelson (1980), 88 Ill. App. 3d 196; according to defendant’s supporting affidavit, it had not yet been able to procure an affidavit from the author of that survey. Defendant also submitted a memorandum in support of its opposition to the summary judgment motion. Plaintiff filed a reply on January 14, 1981, and on that date at defendant’s request the trial court set a hearing for February 9, 1981, on the issue of community standards. On January 15, 1981, plaintiff filed a “Notice to Produce at Trial” requesting the defendant produce at the February 9 hearing:

“One copy of each magazine offered for sale in January 1981 which:
1. ° 0 ° contains photographs of women and men engaging in oral sexual activities with other’s genitalia.
2. * * * depicts oral sexual activity between members of the same sex.
3. * * * contains portrayals of ejaculation.
4. * 0 * contains portrayals of anal sexual relations.
5. * 0 * portray[s] women licking or eating male spermazoa [sic].
6. ° ° ° contain[s] close-ups of male and female genital organs engaged in a sexual relationship.”

Defendant did not comply with that notice to produce, ostensibly because the cause was not yet “at trial.” At the February 9 hearing, in lieu of presenting testimony on the issue of community standards, the defendant filed a supplemental answer to the plaintiff’s motion for summary judgment which was supported by the affidavits of Professor Roderick Bell and George Sullivan, which included numerous documentary and pictorial supporting exhibits. Bell had conducted the obscenity survey discussed in People v. Nelson, and Sullivan was a private investigator employed by the defendant to investigate the availability in other stores of materials similar to those offered for sale by the defendant. Plaintiff replied to defendant’s supplemental answer which recognized the one remaining issue in the case was “whether the material offends community standards,” and that the trier of fact — either judge or jury — may decide this in determining whether the materials are obscene or not based on the evidence of the material itself. Plaintiff alleged that Bell’s survey was inadequate to present a question of fact since it did not seek opinions with respect to “hardcore pornography” of the type offered for sale by the defendant.

On February 19, 1981, the trial court entered an order finding 23 specifically named items were obscene, permanently enjoining the defendant from selling the items by writ issued instanter, finding no just cause to delay enforcement or appeal of the injunction order, and noting that all remaining issues in the cause would be continued, to be taken up on notice of the parties. Defendant timely filed a notice of appeal from that order. This court granted defendant’s substituted counsel’s motion to voluntarily dismiss that appeal without prejudice on April 9, 1981, and, according to the defendant, “no issues relative to the February 9, 1981, injunctive order of Judge Strouse are raised by this appeal.”

Thereafter, on March 11,1981, plaintiff filed a petition for additional relief alleging that on February 28, March 2 and March 4, 1981, the defendant and/or through its employees sold six specified items which were “the same type of pornographic material which [the] court reviewed in detail on January 14 and February 19, 1981.” The petition sought judicial review of the six items for a determination of their obscenity, and an injunction against sale of those items and “other materials substantially identical in content.” In the alternative, the plaintiff requested that the court order the defendant to produce for examination by the court all magazines and paperback books presently available for sale, or that the defendant cease business for an appropriate period of time as a sanction. The six items specified in the petition were marked as exhibits Nos. 1 through 6 and filed with the court. On March 16, defendant filed an answer and a motion to strike and dismiss. The basis of the dismissal motion was that the petition raised issues which had already been determined by the trial court, and that the plaintiff was improperly trying to amend its second amended complaint with matters not previously alleged, and that the trial court had lost jurisdiction due to the filing of the defendant’s notice of appeal.

On March 23, 1981, the defendant filed a “Request for Jury,” as provided by section 63 of the Illinois Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 63). On that same date, the trial court denied the defendant’s motion to strike plaintiff’s petition, ordered the defendant to produce items Nos. 1, 2 and 5 listed in the plaintiff’s prior “Notice to Produce at Trial,” noted the filing of the defendant’s request for a jury, and deferred until April 3 consideration of its oral motion to strike plaintiff’s allegations and prayers for relief re: abatement of the defendant’s bookstore as a nuisance. On April 3, defendant filed its “Motion to Reconsider” requesting the trial court to reconsider its order that the defendant produce the items described in the plaintiff’s notice. The defendant’s motion was based on the premise that since the instant petition alleged the sale of specific items on three occasions after January 1981, the items requested to be produced which were designated as having been offered for sale in January of 1981 were therefore irrelevant to the instant cause, and that the production request was patently overbroad. The trial court denied this motion on April 15, 1981, along with defendant’s oral motion to have the matter certified for immediate appeal. Thereafter, the defendant produced 53 magazines on April 23,1981; plaintiff was allowed two weeks to examine them.

On May 15, 1981, plaintiff filed another petition requesting the trial court to examine and declare obscene, and enjoin the sale of, the 53 magazines produced by the defendant; to find defendant in contempt of court for failing to produce a magazine called “California Cock” which obscenely depicted homosexual activities; and to frame a remedy which would prevent defendant’s repeated violations of the North Chicago Obscenity Ordinance. Defendant’s answer to the petition was filed on June 10, 1981, and its “Motion to Expedite Ruling” was filed on July 15, 1981. That motion was directed to the goal of obtaining a swift ruling on defendant’s March 23 motion to dismiss, so that defendant would no longer be subjected to plaintiff’s repeated petitions and motions to produce. Also, on July 15, 1981, defendant filed another “Motion to Strike and Dismiss” plaintiff’s second amended complaint and all other petitions and pleadings filed by plaintiff which were not yet ruled upon by the trial court. A memorandum of law was also filed in support thereof. Plaintiff’s reply and defendant’s response thereto were also filed on July 15.

The trial court entered judgment on July 27,1981, enjoining the sale of 57 specifically designated items which the court determined were obscene. The trial court denied all other relief requested. Defendant’s timely notice of appeal was filed on August 13, 1981.

The defendant raised four issues for our consideration: (1) whether the court erred in ordering compliance with plaintiff’s notice to produce; (2) whether the court erred in denying defendant’s first motion to strike and dismiss and in subsequently ordering compliance with plaintiff’s notice to produce prior to deciding the merits of the defendant’s renewed motion to strike and dismiss; (3) whether the court erred in failing to permit a full adversary hearing on the issue of obscenity; (4) whether paragraphs 4 and 6 of the judgment order should be stricken.

Defendant’s position is that the trial court’s order that it produce the items encompassed within categories 1, 2, and 5 of the plaintiff’s “Motion to Produce at Trial” amounted to a seizure in violation of the defendant’s constitutional right to be free from unreasonable search and seizure. The defendant contends its only alternative to its involuntary surrender of materials protected by the first amendment was to be held in contempt of court. Further, defendant argues the only method available to parties who wish to obtain materials believed to be obscene is either the purchase of the materials or the seizure pursuant to a valid search warrant citing, inter alia, People v. Kimmel (1966), 34 Ill. 2d 578; Marcus v. Search Warrant of Property (1961), 367 U.S. 717, 6 L. Ed. 2d 1127, 81 S. Ct. 1708; A Quantity of Copies of Books v. Kansas (1964), 378 U.S. 205,12 L. Ed. 2d 809, 84 S. Ct. 1723.

Plaintiff counters that there was no seizure of the materials, that the argument made by the defendant has previously been rejected in Monier v. Chamberlain (1964), 31 Ill. 2d 400, that the defendant had the option of seeking a protective order or a clarification of the materials required to be produced pursuant to the court’s order, and that the materials requested to be produced were relevant to the proceedings.

We agree that this issue has been previously resolved to defendant’s disadvantage in Monier. That court held that an order directing the defendant to produce certain documents relative to the personal injury action at bar did not present a substantial or debatable constitutional issue so as to give that court jurisdiction of the direct appeal thereto. Consequently, the cause was ultimately transferred to the appellate court. The Monier court had determined that it lacked jurisdiction in that cause because “the boundaries of the area constitutionally protected against unreasonable search and seizure were fixed at the limits of relevance.” (31 Ill. 2d 400,402.) It noted that its jurisdiction obtained only in cases directly appealed from orders of the trial court which required production of books, documents, or objects that were not pertinent, material to the issue, or tended to prove the issues.

Thus, the inquiry in the instant cause was whether the items sought were relevant. Most certainly they were; plaintiff alleged in its March 11, 1981, petition that the defendant sold obscene magazines portraying various explicit sexual acts and that it was the same type of pornographic material previously determined by the court to be obscene. In its answer, defendant denied it sells or has sold pornographic or obscene materials, that none of the materials reviewed by the court were obscene, and that it had not violated the North Chicago Obscenity Ordinance. Defendant’s denial of the plaintiff’s allegations brings the items “offered for sale in January of 1981” within the realm of relevancy since they relate to the issue of whether there was a continuing violation of the ordinance. Notably, defendant has not argued — nor does the record provide this court with any way of knowing — that the materials offered for sale in January 1981, were not also offered for sale in February and March. Further, defendant’s assertion that its alternative to compliance with the production order was to be held in contempt of court is correct and, in fact, was a viable alternative to producing the documents. It has been held that a defendant’s action of subjecting itself to a contempt citation is a permissible method of testing a pretrial discovery order. (Bicek v. Quitter (1976), 38 Ill. App. 3d 1027, 1029; People ex rel. General Motors Corp. v. Bua (1967), 37 Ill. 2d 180,189.) In light of defendant’s apparently good-faith belief that the court’s order was unconstitutional, defendant may have been well advised to choose that alternative.

Because the trial court is vested with wide discretionary power in pretrial discovery matters, defendant here bears the burden of showing there has been a clear abuse in order to warrant modification or reversal by a reviewing court. (Bee Chemical Co. v. Service Coatings, Inc. (1969), 116 Ill. App. 2d 217, 223.) The defendant has neither provided this court with a report of proceedings of March 23, 1981, at which time the trial court entered its order to produce, nor has it shown there was a clear abuse of discretion. Furthermore, defendant has presented no argument which persuades us that civil discovery procedures should be subject to the type of constitutional analysis utilized in unreasonable search and seizure criminal cases. Consequently, no vacation or reversal of the court’s production order is warranted.

Next, defendant argues that if the trial court had properly sustained its motion to strike and dismiss before granting in part the plaintiff’s motion to produce, the 53 magazines which the defendant produced pursuant to court order would never have been before the trial court and, therefore, their sale would never have been enjoined. In essence, the defendant argues that the trial court had no right to declare the 53 magazines produced to be obscene because those magazines were not properly brought before it. Defendant asserts that had either its June 17,1980, or its oral March 23, 1981, motion to strike and dismiss been properly and timely granted, there would have been no basis on which to order production of the 53 magazines. In lieu of authority in support of its argument in this regard, defendant referred this court to its legal memoranda submitted below which it urges supports its contention that obscenity may not be enjoined under a statutory or common law theory of public nuisance. See, e.g., People v. Goldman (1972), 7 Ill. App. 3d 253; City of Chicago v. Festival Theatre Corp. (1980), 88 Ill. App. 3d 216.

Plaintiff counters that the trial court’s production order was based additionally on its jurisdiction to declare the magazines obscene and enjoin their further sale by the defendant. Plaintiff cites In re Halkin (D.C. Cir. 1979), 598 F.2d 176, for the proposition that the discovery rules place no limitations on what a party may do with materials obtained in discovery. In the instant cause, of course, the plaintiff used the magazines as the basis for a petition seeking to have them declared obscene.

Motions to strike and dismiss are brought either pursuant to section 45 or section 48 of the Illinois Civil Practice Act, and the grant or denial of a motion to dismiss is generally within the sound discretion of the trial court. (Ill. Rev. Stat. 1979, ch. 110, pars. 45 and 48.) Further, a motion to dismiss should be denied if a good cause of action is stated, although not the one intended by the plaintiff. (Great Atlantic & Pacific Tea Co., Inc. v. La Salle National Bank (1979), 77 Ill. App. 3d 478.) In considering a motion to strike or dismiss, the complaint must be considered as a whole and allegations should not be stricken nor the complaint dismissed for failure to state a cause of action unless it clearly appears that no set of facts could be proved under the pleadings which would entitle the plaintiff to relief. (Saldana v. American Mutual Corp. (1981), 97 Ill. App. 3d 334, 336.) During the course of these proceedings, the defendant filed four written motions to strike and dismiss (April 2, 1980; June 17, 1980; March 16, 1981; July 15, 1981), and made one oral request for same (March 23, 1981). Considering only the two defendant specifically notes in its brief, June 17 and March 23, the June motion was addressed to the sufficiency at law of plaintiff’s second amended complaint upon which partial relief was granted on motion for summary judgment in the trial court’s order of February 19, 1981, which order is not challenged in this appeal. The March 23 motion was made orally and, inasmuch as this court has not been provided with a transcript of that proceeding, we have no way of knowing whether in fact its July 15 written motion to dismiss “formalized” its oral motion made almost four months earlier. In that four-month interim, plaintiff filed its May 15 petition alleging the 53 items produced by the defendant were obscene, and defendant filed its answer thereto on June 10.

We observe, contrary to defendant’s memoranda submitted to the court below, that the Festival Theatre Corp. decision specifically expressed no opinion on the question of whether the sale and distribution of obscene literature and films may be enjoined as a public nuisance at common law. (88 Ill. App. 3d 216, 226.) Assuming, arguendo, however, that defendant is correct in its contention that the operation of the bookstore may not be enjoined, the pleadings nevertheless stated a cause of action in that they sought to have the court declare specific materials obscene and to have further sale of those items enjoined. We note here, also, that the harm allegedly caused by the trial court’s failure to dismiss— that the 53 magazines would not have been before the court and would not have been found obscene save for that error — is not correct. The items produced by the defendant in compliance with the court’s order were for sale to the general public in its store, and could readily have been obtained by the plaintiff if necessary in order to support its petitions. The defendant has failed to show the trial court abused its discretion in denying the motions to dismiss, and no reversible error is evident.

Next, the defendant asserts the court erred in determining in a “summary fashion” that the magazines before it were obscene, and contends that no permanent injunction may issue until there has been a full adversary hearing. Defendant cites no relevant authority in support of its contention, nor does the record reflect the defendant wished to present any evidence prior to the trial court’s determination on July 15 that the publications were obscene. Plaintiff correctly points out that defendant had an opportunity on February 9,1981, to present evidence on the issue of community standards, which was relevant to the issue of whether the materials in question were patently offensive. In lieu of testimony, defendant chose instead at that time to offer a supplemental answer to plaintiff’s motion for summary judgment, supporting same with affidavits from Dr. Bell concerning the Illinois survey discussed in People v. Nelson (1980), 88 Ill. App. 3d 196, and from Mr. Sullivan who had purchased sexually explicit publications in various stores in the area. Although defendant did make a request for a jury, the record fails to show when or even if that motion was ruled upon, and if not, why not. Further, the defendant did not interpose any objection during the trial court’s allegedly summary determination that the publications were obscene. The granting of a jury trial in equity cases is discretionary with the trial court (Kjellesvik v. Shannon (1976), 41 Ill. App. 3d 674) and, if a jury is allowed, its verdict is advisory only, and binds neither the trial court nor the reviewing court. (Ray v. Winter (1976), 39 Ill. App. 3d 567,575-76, rev’d on other grounds (1977), 67 Ill. 2d 296.) The record is clear that the court reviewed each of the publications which it declared obscene, and that in making its determination, the guidelines announced in Miller and the statewide community standard mandated in People v. Butler were applied. (Miller v. California (1973), 413 U.S. 15, 37 L. Ed. 2d 419, 93 S. Ct. 2607; People v. Butler (1971), 49 Ill. 2d 435.) No reversible error is evident as to this issue.

Lastly, defendant requests that paragraphs 4 and 6 of the trial court’s order be stricken because they are arbitrary declarations and unproven allegations. Those paragraphs are as follows:

“4. That there is a continuing violation of the North Chicago Obscenity Ordinance.
6. That Exhibits 100 through 150 were offered for sale by the defendant and the six magazines hereinafter enjoined, previously brought to the court’s attention, were sold by the defendant.”

Defendant wishes to have these paragraphs stricken since its landlord, largely on the basis of the judgment in this case, has filed a forcible entry and detainer action to evict it from the premises for violation of its lease which prohibits unlawful or immoral practices. Plaintiff argues the judgment should remain as it is, since the defendant itself admitted in one of its memoranda that magazines “either sold or offered for sale by the defendant” were used by plaintiff to substantiate its complaint for injunctive relief. Plaintiff also argues the defendant failed to object to the inclusion in the judgment order of the six magazines which were not numbered among the 53 magazines actually produced by the defendant, the likely inference being that defendant has waived any error in that regard.

Our review of the record substantially supports the trial court’s findings. Clearly, the trial court’s finding is correct that the 53 magazines produced by the defendant were, in fact, offered for sale by it since the production order so described the items to be produced. Further, the record supports the finding that there was a continuing violation of the ordinance. The trial court’s February 19,1981, judgment found 24 publications offered for sale by the defendant during the period November 1, 1979, to May 1, 1980, to be obscene, and its subsequent order entered on July 27,1981, declared, in pertinent part, that the 53 magazines produced by the defendant as being “offered for sale in January 1981” were also obscene. Consequently, the record supports the finding that the defendant sold obscene magazines during at least two time periods approximately nine months apart; thus, the phrase “continuing violation” is not without support in the record. With regard to the six publications previously brought to the trial court’s attention, four of them were alleged to have been sold by the defendant on February 28; the other two were alleged to have been sold by employees of the defendant who were arrested on March 2 and March 4,1981. In its answer to plaintiff’s petition concerning those six publications, defendant admitted the arrest of its employees occurred, but denied that it sells obscene materials, or that it had sold obscene materials on those two dates. In an earlier answer, defendant had admitted that its business consists solely of the sale of literature, magazines and motion pictures, and that it operates its business by and through employees and agents who actually sell the literature, magazines and movies.

In our view, the trial court’s finding that the defendant sold the six magazines is supported by the record and need not be stricken.

Accordingly, the judgment of the circuit court of Lake County is affirmed.

Judgment affirmed.

NASH and REINHARD, JJ., concur.